Katarzyna Kos

The secondary unconstitutionality and the issues of legal interpretation

The article presents the concept of the secondary unconstitutionality of law from the perspective of a few issues in legal interpretation. The notion of the secondary unconstitutionality is commonly described as a situation when a legal norm is viewed as inconsistent with the Constitution in the light of the judgment of the Constitutional Tribunal which concerned similar legal problem. The aim of the article is to indicate the scope of the possible interpretation of the norm as secondarily unconstitutional. In the first place author considers the influence of the dominant in Poland linguistic conception of a legal norm to the possibility of application of the notion of the secondary unconstitutionality. Next, it is worth underlying that the analyzed concept is often used to justify the omission of the valid legal norm by the court. This issue needs to be studied from two perspectives. Firstly, it is necessary to describe the relationship between the principle of the presumption of constitutionality and the concept of the secondary unconstitutionality. It has to be explained that this presumption is assigned to every valid legal norm which hasn’t been adjudged as ‘unconstitutional’ by the Constitutional Tribunal. That is why the main aim is to answer whether the competence to omit the valid norm is consistent with the principle of the presumption of constitutionality. The second issue refers to the principle of the direct application of the Constitution. Although this principle usually justifies the interpretation of a provision in accordance with the Constitution, in this article it has to be considered whether the principle of the direct application of the Constitution also allows the court to omit the provision in this specific situation of the secondary unconstitutionality.