The author tries to describe very a strange phenomenon which one can observe in actual Polish constitutional practice. He calls it interpretatio constitutionis hostilis (constitution-hostile intepretation). The considerations are based on some legislative examples and the author comes to the conclusion that this unconstitutional strategy is: firstly, hidden, although applied fully consciously and intentionally; secondly, based on acting in bad faith; thirdly, very dangerous for the legal order.

The paper asks when is a constitutional design of any (domestic, international, supranational) polity in error? On the most general level such critical juncture obtains when polity’s founding document (treaty, convention, constitution) protects against the dangers that no longer exist or does not protect against the dangers that were not contemplated by the Founders. The paper asks the question whether whether the capture of state institutions in Poland (and Hungary before it) is an outlying case, or if it portends the future of Europe more generally. Whatever the case, Poland matters, and more than for just the Poles. The case illuminates salient features and fissures in the bases for democratic government, the rule of law, and constitutionalism when confronted with the sweeping politics of resentment. Courts play a pivotal role in the process because of their supervisory functions and the embedded lowprofile and arcane language of the law. There is always a bona fide assumption that law will speak louder than any transient urges of the powers that be and that in the end the law will enforce its primacy. That assumption might be correct in the best of times when everything goes according to plan. When it does not, courts look fragile and vulnerable, as the only protective tool they wield – ‘the law’ – is taken away from them by the sheer power of political sleight of hand. The question then arises as to whether political exigencies could bring about self-re-imagination on the part of the courts so as to make them protectors of constitutional essentials in such emergency situations. In other words, could capture of the state and institutions be countered by judicial recapture? The Polish example is instructive here and shows how existing mechanisms open important legal avenues to strike back at capture. Yet embarking on any such recapture must be linked not only to the normative and technical (here the question would be: “Does the system contain enough to build a good legal case for exercising such powers?”), but also to the mental (here we would ask the uneasy question “Are judges willing and ready to use these mechanisms to protect democracy?”). The paper will argue that even a symbolic act of resistance in pursuit of a judicial promise is crucial. It builds institutional memory and a legacy that goes beyond disappointment and failure ‘here and now.’ For the system to regain its liberal credentials, the courts and the public must have something tangible to fall back on. Such act of resistance serves as an example of ‘symbolic jurisprudence’ because it reminds us that survival of the system must be anchored in a long-term fidelity, which goes beyond and transcends the events of here and now.

The article is a polemic with the main theses presented on the website of our host, the Constitutional Court of Moldova. These theses were officially presented, among others, by persons in power in Poland since November 2015, when political decisions were made regarding the Polish Constitutional Court. These actions actually led to undermining the authority of the Tribunal. This happened on the eve of the thirtieth anniversary of the establishment of this body in Poland. The article presents the legal circumstances that took place in 2015 and 2016. It presents the findings of the Constitutional Tribunal, which are most often different than the theses published on the website of the Moldovan Court. This is mainly about the Polish Tribunal clarifying the separation of competences of the Sejm and the President in the case of appointing judges of the Tribunal and the competence of the head of state to take the vow. Finally, the article presents the actions of state organs destroying the Constitutional position of the Tribunal. The text indicates the practice of not announcing the Tribunal’s judgments and adopting subsequent acts regarding the functioning of the Tribunal. Attention was also paid to the process of degrading the social authority of the Tribunal, in campaigns conducted in public media.

Afer the introduction of the principle of nation sovereignty in the Constitution of the Republic of Poland, it seemed that a nationwide referendum was bound to become an important instrument allowing the expression of opinions and formulation of decisions by the sovereign. The nation is a source of power and may assume the role of an arbitrator in conflict situations between constitutional state organs but also in disputes between the subjects of the political scene, which is reflected in aiming the activities of public authorities according to the will expressed via a referendum. The conclusions that can be drawn from the use of nationwide referendum in Poland are much less optimistic. From the very beginning of its implementation, it was accompanied by political horse-trading. A referendum has been and still is commonly treated by the Polish political classes as an element of political struggle between particular parliamentary and extra-parliamentary groups that take advantage of it for their current purposes. Referenda have become toys in the hands of politicians who use them as tools in electoral competition and an element of the ‘game of power.’

The aim of the article is to present the constitutional limits for the application of administrative sanctions in the Polish legal system. Although the issue of administrative liability has not been directly addressed in the Constitution, it does not mean that it is constitutionally indifferent. Polish Constitutional Tribunal has developed significant case law posing several conditions which are to be taken into account by the lawmakers and the administrative courts. In 2017 the lawmakers have made an effort to unify rules of the application of administrative sanctions by adopting a wide amendment to the Code of Administrative Procedure. This amendment provides for, i.e., the principle of non-responsibility for violations of law caused by force majeure, the power of an administrative body to determine the amount of the monetary penalty in according to conditions set forth by this Code, the principle of application of a law more lenient for the perpetrator of a violation of law and the ne bis in idem principle. Despite the development of the constitutional case law and the recent legislative intervention, several questions concerning administrative sanction remain, above all the permissible scope of transferring the power to impose penalties for violations of law to administrative bodies at the cost of exclusive power of courts to exercise justice and the adequacy of tools used by the administrative courts to exercise control over decisions of these bodies in this field.

The paper is meant to briefly present the sequence of events and the analysis of the constitutional crisis in Poland that is not be reduced to the personal matters and solely to the composition of the Constitutional Tribunal. Such crisis seems to result from the lack of recognition for current constitutional order and from the fact that major political forces seem not to value inviolability of constitutional status quo.

It shall be pointed out that in the lack of qualified constitutional majority (that have not been achieved in the last election) preventing from any legal changes to the Constitution, political majority keeps forcing such interpretation of the Constitution which is accordance with their political interests. This rises imbalance of the entire constitutional system in Poland.

The constitutional crisis has also resulted in lowering the position of the Constitutional Tribunal in the public eye, as well as in questioning the guarantees of impartiality and independence of constitutional judges. The dispute has turned into a serious crisis of this branch of judiciary that have been challenged as a necessary part of democratic state of law.

The paper ends with the conclusion of a strong need of the multilevel public debate – involving legal, political and social arguments – on the role of constitutional court in democracy, that may be – particularly in so-called ‘young democracies’ – exposed to extra-legal political pressure

In December 2016, the President of the Republic of Poland applied to the Constitutional Tribunal for the constitutional review of the Act of 13th December 2016 on Amendments to the Act – Law on Assemblies. The Amending Act introduced the concept of “cyclical assemblies,” defined as assemblies organized on an annual basis within last three years or at least four times a year. When this Act entered into force, there was only one kind of assembly that met the requirements pertaining to cyclical assemblies: the monthly assemblies held to commemorate the victims of the Smolensk plane crash (the so-called Smolensk monthlies). In respect of the Amending Act, the President formulated three objections, two of which have finally been examined by the CT on their merits, while proceedings concerning the third one were discontinued. The CT has ruled that the Amending Act granting privileges to cyclical assemblies are in conformity with the Constitution. The author of the commentary expressed critical assessment, both in terms of how the CT resolved each of the three objections and in terms of the reasons for these decisions. Determination of the legal consequences of the commented judgment is difficult as the panel that issued the judgment consisted of unauthorised persons, appointed to fill positions of judges of the CT that had been filled by the Sejm in the previous term.