LESZEK GARLICKI PRAWO KONSTYTUCYJNE PDF

The article is focused on a serious dispute between the Supreme Court and the Constitutional Tribunal over interpretative verdicts in the Republic of Poland. This kind of decisions are issued by the Tribunal. Interpretative verdicts contain explanation interpretation of a statutory provision, which constitutionality is controlled by the Tribunal. The main problem is, if this kind of decisions bind other courts. Judges of the Tribunal Court claim that courts, including the Supreme Court, are suppose to obey interpretative verdicts. In the article the author describes this type of verdicts, their history and explains the essence of the dispute.

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Time is everlasting and consists of singular kairoi. Kairos , being its constitutive part, should not defy the structure of time. This distinction bares on the way in which we should understand any change of a constitution that claims to belong to free and equal citizens. This is not only a purely scholarly debate. Unfortunately, no conclusive answers were given. I would like to pick up on this ambitious and difficult theoretical question and provide a plausible solution to the conundrum that the Constitutional Tribunal identified and subsequently failed to solve.

I am interested in answering the question of whether the Tribunal can perform a review of constitutional amendments. The question of how procedurally and when politically such a review should be performed would require a lengthier analysis. At first glance, textual analysis of the article of Polish Constitution does not enshrine substantive limitations of constitutional amendment.

Only procedural limits are established therein. Should a bill of amendment introduce changes to chapter I the fundamental principles of the state , II fundamental rights and liberties , or XII the constitutional amendment procedure , the amendment prior to its signature by the President of the Republic can become subject to a popular referendum.

Subsequently, the President of the Republic has 21 days to sign the amendment and publish it in the Official Gazette. Scholars with some exceptions [3] seem to take for granted that the constitution limits the bearer of constituent power only by procedure, and not by substance. Constitutional democracy is a system founded on a seemingly problematic marriage of two principles: the principle of democracy and the principle of constitutionalism. So long as participants to the discourse — the citizens — are to remain free and equal, there must remain a set of immutable principles which protects the political power of people from being turned into violence.

Otherwise freedom and equality would turn into a mere objectification. The principle of democracy accumulates the political power. The principle of constitutionalism, on the other hand, is supposed to rationalize it and tame it. In this sense constituent power cannot be understood as unfettered. It should be understood as no longer existent. The concept of constituent power of people CPP , coined by Sieyes, had only one task to deliver: to establish a polity of free and equal citizens.

This ought I call it the core of constitutionalism , once institutionalized, extinguishes CPP. The institutionalization of the ought — the event that takes place usually in a revolutionary big-bang — marks the beginning of constitutional chronos.

From this moment onwards a constitutional change kairos must not violate what is inherently normative even to the bearer of constituent power of people. This inherent normativity, once CPP creates a constitution, transforms itself into a normative core. Paradoxically, scholars who claim that CPP must be unfettered in order for the constitution it produces or amends to be a product of the exercise of free will — contradict themselves.

There are rights even if of meta-legal nature which are presupposed by this claim. In short, popular sovereignty the right to self-government is co-original with the basic rights. The latter case, as Carl Schmitt pointed out, [11] would signify an annihilation of constitutional regime — the end of constitutional chronos. In order to make this claim more concrete, let us turn to the Czech Constitutional Court which dealt with similar problem. Czech constitution enshrines the so-called eternity clause art.

However, at the same time Czech Constitutional Court is not constitutionally authorized to perform judicial review of constitutional amendments. In order to perform such a review, the Court had to claim this authority, justify its doing so, and provide a standard of such a review. These values require that every legal act be endowed with legitimacy that does not result solely from a meticulous adherence to the law-making procedure.

Sovereignty of the Czech People is expressed in fundamental principles that are shared equally with other states governed by the rule of law Pl. The core, in short, is a foundation of the political system the purpose of which is to concretize and protect these rights and freedoms Pl.

Czech Constitutional Court treats constitutional amendment first and fremost as regular statute. Only if it is enacted in a special procedure and because it fulfills the demands of principles and values that are sine qua non of popular sovereignty can this statute become endowed with the constitution-amending quality.

The question remains — could Polish Constitutional Tribunal deploy similar reasoning? After all, Czech Constitutional Court and Polish Tribunal operate in polities of similar cultural and historical background. I argue that in spite of there being no explicit eternity clause, the Constitutional Tribunal can assess constitutionality of constitutional amendments.

Constituent power of the Polish people is hence transmuted into the core which underlies the constitution while, at the same time, it remains its inherent part. Second, given the substance of the article 2, any bill of constitutional amendment should fulfill the above-mentioned requirements. Interestingly, prior to the enactment of the Constitution, the norm enshrined in that article served the Tribunal as the source of principles that are claimed to lie at heart of constitutional democracy.

By adhering to this interpretative clause, the Tribunal e. I can see no reason why the article 2 of the constitution should not be used as interpretative tool in assessment of constitutionality of constitutional change. The delicate political situation requires prudence. But we should not forget that constitutional chronos is about constitutional change. This ought is the fundament of constitutional order that encompasses all existing constitutional democracies.

Constitutionalists and constitutional courts should be aware of this fact. A new principle, created by constitutional power that does not belong to people. This new ought would start a different chronos — a different polity. A polity which as a constitutional scholar I have not examined, and which as a human being I simply abhor.

Ronald Dworkin, Justice for Hedgehogs pp. Seitzer trans. Just click here. Polish Constitutional Tribunal goes down with dignity. Farewell to the Polish Constitutional Court.

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