Marek Safjan

On the Constitution as interpreted and applied by the “constitutionally sensitive” lawyer

The article attempts to answer the question of what the necessary qualities and the requirements are that a constitutional judge must fulfill to perform his judicial duties. The point of reference for these considerations is the figure of Professor Andrzej Mączyński, a retired judge and former vice-president of the Constitutional Tribunal. The author proceeds from the assumption that the methodology of constitutional interpretation has unique features that distinguish it from other forms of judiciary interpretation and application of law. The corner stone of that methodology concerns the concept of the so-called autonomous legal notions which are construed with respect to basic constitutional values and principles. Constitutional interpretation requires a comprehensive legal background covering all areas of law, a good understanding of the nature of a multi-faceted contemporary legal system, as well as a large historical knowledge on the evolution of law and the impact exerted by the legal tradition. A modern constitutional judge must not only have precise and wide knowledge, but also an imagination and an appropriate “constitutional sensitivity” especially in the field of the application of fundamental rights and constitutional values. His first imperative is to be obliged to look for what is called by the famous Polish lawyer Fryderyk Zell (junior) as the “righteous law”. In the second part of the article, the author analyzes the threats to the independence of the constitutional court, resulting from violations by the legislative and executive authorities, of the principles of a democratic state of law. The author refers to examples related to the activities of the legislative and executive powers undertaken against the Polish Constitutional Tribunal from autumn 2015.

The Constitutional Tribunal after thirty years – experience and the future

This article tries to answer three different questions: Did we create a stable and strong constitutional culture in Poland after collapse of the communist system? Has the model of constitutional review enshrined in the Polish Constitution confirmed itself over the 30 years of its application by the Constitutional Tribunal, notably considering the alternative model to the Tribunal’s concentrated review, i.e. the so-called dispersed constitutional review exercised directly by the common courts? As a third topic, the article deals with the perspectives of the constitutional review and necessary changes in that regard. It could serve as an instrument for the future improvement of constitutional culture as well as ensure a more effective influence of the basic constitutional values and principles on the entire legal order in Poland, notably through a stronger presence of the constitutional axiology in the judicial practice.

The conclusion of the first part of the article is that Polish constitutional culture is not sufficiently enrooted in the tradition and awareness of the Polish society – this concerns average citizens, as well as members of the political elite. This is one of the essential reasons why the Polish constitutional system, founded on a good institutional framework for the state ruled by law, has become so fragile with regard to the recent political and legal changes, which have an extremely negative impact on the legal order and which undermine the basic democratic principles, starting with the independence of the judiciary. This conclusion draws upon the author’s postulate that the constitutional legal order of the democratic state ruled by law must necessarily be strengthened by a well-organized civil society and by a good constitutional practice shaped in compliance with fundamental rights, basic values and principles.

The second part of the article presents arguments in favor of the centralized (concentrated) constitutional review model, which could in principle be maintained in the future. This model is better adapted to the Polish legal traditions and to the structure of the Polish judiciary, whereas the opposite model of decentralized judicial review could seriously weaken the principle of legal certainty. However, it is argued that this approach should not be understood as a categorical refusal of a direct application of constitutional norms, principles and values by common judges. On the contrary – the modern concept of judicial interpretation and application of law requires an openness towards the larger context of the legal order, including the constitutional, supranational and international texts, and presupposes observance of the basic rights and values which are guaranteed by these texts and universally recognized. However, the definitive elimination of legal provisions from the legal order should in principle be a prerogative of the constitutional court in conformity with the logic of the model of centralized constitutional review. At the present time, which sees the model of constitutional review paralyzed by prolonged constitutional crisis, and a clear violation of the independence of the constitutional justice by the parliamentary and governmental majority, the necessity of striving for a specific instrument to effectively apply the constitutional guarantees in the legal order must not be ignored. The author argues that this exceptional situation justifies a temporary replacement of the concentrated model of constitutional review by concrete judicial review, which means that the ordinary judges can refuse the application of statutory legal rules in specific cases if they do not comply with the constitution.

In the final part of this publication, focusing on the future perspectives, the author discusses necessary improvements of the constitutional review, in line with a more flexible approach allowing common judges to refuse in some situations the application of non-constitutional rules without referring a question of law to the constitutional court. The author also posits the necessity of introducing some modifications to the model of constitutional complaint and argues for an enlargement of the competences of the constitutional court, covering not only the review of the constitutionality of norms, but also the review of conformity with fundamental rights in their application.

The March constitution – a constitution of paradoxes

This article presents a synthetic attempt to address the role that the March Constitution of 1921 has played in the development of the Polish constitutional thought. It discusses the achievements and the weaknesses of the March Constitution. On the one hand, its significant advantages included recognising a catalogue of fundamental rights, guaranteeing independence of the judiciary, introducing judicial control of administrative acts and state liability for breaches of law. On the other hand, its weaknesses lay in the lack of solutions to stabilise the position of the government, a broad and imprecisely defined status of decree laws, and the lack of constitutionality review of laws. The modern and democratic solutions of the March Constitution exceeded the level of advancement of the political and legal culture in the society, which led to abuse and distortion of its constitutional mechanisms, and to an inability to secure the rule of law.