The presumption of constitutionality in the light of the case law of the Constitutional Tribunal

The presumption of constitutionality is a common point of reference in the case law of the Polish Constitutional Tribunal. Although this concept is not directly expressed in the text of the Polish Constitution of 1997, the Tribunal emphasizes its constitutional anchoring. The analysis of the Tribunal’s case law enables us to identify the subject of the presumption of constitutionality, as well as the moment of its acquisition and invalidation. In its decisions the Tribunal presents the opinion on the gradation of the presumption of constitutionality, as well as the close relations between the presumption of constitutionality and the interpretation of law in accordance with the constitution. Treating the presumption of constitutionality as a starting point in exercising the judicial review raises a question to what extent the Tribunal itself is bound by this presumption. The analysis of the Tribunal’s case law leads to the conclusion that this concept has the key role in the argumentation applied in the process of judicial review.

Legal aspects of the United Kingdom’s withdrawal from the European Union

Following the electorate’s will expressed in the June 23, 2016 referendum, the European Union (Notification of Withdrawal) Act of 2017 was passed, and authorized ministers to notify under Article 50 TEU. This notification was given on March 29, 2017. The withdrawal of the United Kingdom from the European Union will result in significant changes in the system of the sources of law applied in the domestic legal order. Simply repealing European Communities Act of 1972 would leave large holes in the legal system making it incomplete. In order to avoid it the European Union (Withdrawal) Bill, known as the Great Repeal Bill, is proposed. The main purpose of this framework legislation is to convert directly-applicable EU laws into UK laws and to provide a power to use delegated legislation, when necessary, to rectify problems occurring as a consequence of the withdrawal.

The German concept of militant democracy. An outline of the issue

The aim of the article is to present the origins, basic assumptions, key legal institutions, and controversies around the concept of militant democracy developed in the Federal Republic of Germany, and to characterize the role of the constitutional court within it. Although the above mentioned concept has been strongly criticised by some scholars, the legal institutions which express it have already become firmly rooted in the Basic Law for the Federal Republic of Germany. Some of them have even found their counterparts in other countries. Moreover, the considerations on the possibilities of protecting democracy against its pathological transformations towards a more or less undemocratic direction are particularly current in the age of significant growth of the popularity of the Western political movements and leaders who contest the hitherto widespread perception of democracy. According to the author, the legal measures that express the concept of militant democracy can effectively protect the liberal democratic order. However, they should be practised – as it takes place in Germany – moderately.

Evolution, constitution, security. An outline of the Really Realist Theory

The “really realist theory” (théorie réellement réaliste, TRR) is not conceived by the Author as a theory, which is limited to the recognition that judges create the law (as it is today commonly accepted), but as a theory, which follows Ronald Dworkin’s ideas by shifting the capital of “Law’s Empire” from the legislature to the judiciary. The truth is that nobody creates the law, since it is found by the judges when deciding individual cases, by the legislators in limiting the administrative discretion, by the constituent assembly in restricting the arbitrariness of legislature etc. In the first section of the paper the TRR is presented as a form of evolutionism. Firstly, because creationism – a naive idea that the law can be created ex nihilo – is strongly rejected by the TRR. Secondly, since the TRR adapts some ideas of Charles Darwin in relation to law. In the second section of the paper the evolution of law is outlined: from the state of the law called “judicial” to the states called “legislative”, and “constitutional”. Finally, in the last section the TRR is applied to a very important current problem: the finding of an equilibrium between freedom and security in the time of the global fight against terrorism.

Commentary to the resolution of the Supreme Court of January 19, 2016 (Ref. No. III SW 168–169/15). Stating the validity of elections to Sejm and Senate. Does higher electoral thresholds have sense?

The Election Code of Poland enables two electoral thresholds: 5% for the political parties’ election committees, and 8% for the coalition of election committees. The Supreme Court held that making an informal alliance of the political parties which decide to run a joint election list, allows to lower electoral threshold. This solution favors not following the statutory electoral thresholds agreed for in the process of forming the electoral coalition. Those election committees which have formed the actual coalition, without notifying the National Electoral Commission, are in more favorable position as they gain the seats above the threshold of 5%, whereas those committees which followed the statutory notification requirement are eligible to participate in the distribution of seats only if exceeding the higher, 8%, threshold. Therefore, the key question to ask is whether keeping the varied electoral thresholds makes sense.