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Jeszcze raz w sprawie kontroli konstytucyjności całej ustawy — odpowiedź na polemikę Piotra Radziewicza

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Kustra A.

Przegląd Sejmowy

2013

issue 2(115)

87 – 96

The article is in response to polemic comments from Piotr Radziewicz on the author’s article about the review of constitutionality of the entire statute (published in "Przegląd Sejmowy” 2012, No. 2). Replying to the objections of Radziewicz, the author clarifies that her original article was based on the assumption of an active role of the constitutional court in the process of hierarchical review of conformity of the normative acts of lower rank to the normative acts of higher rank. The aim of the cited article was not to examine the limits of judicial activism, but, under a tacit assumption of its admissibility (or, sometimes, even necessity), to show real issues facing constitutional court judges when considering applications to review the constitutionality of the statute as a whole. In the author’s view, the Constitutional Tribunal – carrying out the review of the entire statute – may make a decision which is fully affirmative or declaring inconsistency with the constitution of only several elements of the statute, or give a fully negative (denying) judgment. The latter will be admissible only in the event that the Tribunal declares unconstitutionality of all the provisions of fundamental nature and indicates the resultant unconstitutionality of all other provisions of the statute. Judgments declaring unconstitutionality of the entire statute will be made very occasionally. The author claims that carrying out of the review of constitutionality of the statute as a whole is based on Article 122 (3) for an a priori review and Article 188 (1) for an a posteriori review. In her view, even if a given statute has been challenged by the President of the Republic under the a priori review procedure and (consequently) unconstitutionality of the provisions integrally associated to the entire statute has been declared, the Constitutional Tribunal will be allowed to make use of its competence provided for in Article 122 (4), the second sentence. This, however, cannot be confused with a review of the entire statute per se.

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1 Przegląd Sejmowy

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Jeszcze raz w sprawie kontroli konstytucyjności całej ustawy — odpowiedź na polemikę Piotra Radziewicza