Wyniki wyszukiwania - Biblioteka Nauki

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THE SO-CALLED PARTIAL JUDGMENTS OF THE CONSTITUTIONAL TRIBUNAL (Wyroki zakresowe Trybunalu Konstytucyjnego)

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Kustra A.

Przegląd Sejmowy

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2011

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nr 4(105)

49-73

EN

Where the Tribunal decides that the unconstitutional provisions are not inseparably connected with the whole statute, the President may either sign the statute with the omission of the provisions considered inconsistent with the Constitution or he may return the statute to the Sejm for the purpose of removing the non-conformity pronounced by the Tribunal. Partial decisions refer to recognizing only a partial non-conformity of the reviewed provision, e.g. only to the extent to which the provision could have a retroactive application. The author of this article provides an analysis of the so-called partial judgments made by the Constitutional Tribunal which are classified among the so-called non-classical decisions of the Tribunal. She claims that partial judgments may be defined as judgments in which the Tribunal adjudicates that a particular provision (a norm reconstructed from that provision) is consistent or inconsistent with the pattern of review - not in the entirety of the provision, but only to an extent relating to specified factual basis, persons etc. This definition accentuates legal effects of partial judgment which provides a solution having a limited extent of normative content, expressed in a challenged legal provision. Such a solution may be an affirmative (declaring lack of adequacy) or negative character. Partial judgments of a negative nature are, obviously, of particular significance. They result in deletion of certain part of legal norm without interfering directly in the text of the normative act. Such a deletion leads to changes on the normative level, but does not mean a deletion of a whole norm contained in this provision from the legal system. Based on this definition, the author shows several categories of partial judgments and identifies differences between partial judgment stricto sensu and 'seeming' partial judgment, i.e. those judgment in which the Tribunal uses the phrases 'to the extent' or 'in part', but which have legal effects other the effects of partial judgment stricto sensu. Moreover, the author points out different reasons for using an instrument of partial judgment by the Constitutional Tribunal. Unlike other kinds of non-classical (i.e. interpretative, application or reanimative) decisions which are made by the Tribunal (taking into account arguments for using classical method of adjudication or for modifying the canon of the operative part of a judgment), in some procedural situations, partial judgments seem to be a direct consequence of the principle of accusatorial procedure before the Tribunal. This is also related to limitation of particular entities to submit applications, questions of law and constitutional complaints to the Tribunal as well as the principle of binding character of the extent of the application widely understood. In this context, it is possible to make a distinction between obligatory and facultative partial judgments. Due to the complex of nature of decisions in which the Constitutional Tribunal applies the 'partial' formula, as well as different reasons for, and effects of, their use, it is difficult to make its unequivocal assessment. On the one hand - in case of obligatory partial judgments - they manifest judicial self-restrain. On the other hand, facultative partial judgments provide an example of a widely understood activism of the judges of the Tribunal.

2

THE ORIGINS OF THE CONSTRUCTIVE VOTE OF NO CONFIDENCE (Geneza konstruktywnego wotum nieufnosci)

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Bozek M.

Przegląd Sejmowy

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2011

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nr 5(106)

81-100

EN

In the second half of the 1920s, the crisis of parliamentary democracy was almost universal. This was particularly evident in the Weimar Republic as a consequence of the lack of sufficient parliamentary tradition in Germany. This was often accompanied by a temptation of interpreting the principles of parliamentary system from the angle of the tradition of monarchical constitutionalism, extremely deeply rooted in German science. Therefore, when the problems with practical application of these principles appeared, they were interpreted as evidence of the failing of parliamentary system itself. The reinterpretation of the constitutionally defined basic concepts of parliamentary government was seen as a possible solution to overcome these problems, which, as a starting point, had to take the provisions regulating the appointment and dismissal of the government. Such interpretation was meant to loosen the ties between the government and the Reichstag, at the expense of its increased dependence of the President. In this context, an idea was proposed which, in its essence, preceded the concept of a constructive vote of no confidence. However, it did not find adequate acceptance to become a norm of conduct. Moreover, it did not received sufficient support for implementation in the form of a constitutional amendment. This second eventuality was unlikely due to, not only, a lack of political ability to implement any correction of the system of government by amending a constitution. The opportunities offered by the above-mentioned idea consisted, paradoxically, in interpreting the existing legal provisions rather than implementing a constitutional reform. This idea was, in fact, based on striving to free the government from destructive actions of parliamentary majority, but only at the cost of increased importance of the head of state. It was the president who was to assess whether the majority voting to express no confidence in the government is purely negative and is not able to form a new cabinet, or it can become a support for the future government. Even in their furthest reaching proposals, the authors do not dare to claim explicitly that the President should be bound by the viewpoint of the parliamentary majority which had submitted to him a motion of no confidence in the existing government together with a proposal to appoint its successor. The original meaning of the concept of the constructive vote of no confidence is not so much associated with the improvement of the government's relationship with Parliament, as with making the head of state a guarantor of the government's position in the face of unfavorable attitude on the part of the Chamber.

3

A BILL AMENDING THE CONSTITUTION OF THE REPUBLIC OF POLAND INTRODUCED BY THE DEPUTIES OF THE PARLIAMENTARY CLUB OF CIVIC PLATFORM (SEJM PAPER NO. 2989, THE SEJM OF 6 TERM) (Polish title below)

100%

Zubik M.

Przegląd Sejmowy

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2011

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nr 3(104)

9-30

EN

(Polish title: Projekt ustawy o zmianie konstytucji RP poslow Klubu Parlamentarnego Platformy Obywatelskiej (druk nr 2989, Sejm VI kadencji)). The article deals with the proposal introduced by the Deputies of the Parliamentary Club of Civic Platform to amend Polish Constitution of 1997. The proposal is the most comprehensive one those introduced in the last 14 years of existence of the Constitution. The bill, submitted to the Sejm in February 2010, is - in a sense - a recapitulation of the public debate on amending the Constitution of the Republic of Poland. Even if not intended to provide a thorough review of constitutional foundations for the functioning of the state and to redefine the axiology of the constitution, the bill contains several substantial changes, which - according to their authors - would improve the operation of the legislative and executive branches of government. First, the author discusses the role of the procedure for amending the constitution in guaranteeing stability of the constitution. In this context, he examines the issue (tackled in the literature) of dysfunctionality of several provisions of the Constitution and regulatory deficiencies revealed during their application. He depicts successive proposals to amend the Constitution that have already been submitted to the Sejm, including, paying particular attention to their context and historical setting. He mostly focuses on changes in: membership of both chambers of parliament, the status of Member of Parliament, powers of the Sejm, procedure for the election and substitution of the President of the Republic and his powers. Additionally, the author examines the proposal for deconstitutionalisation of the National Security Council (President's advisory body on national defence) and the National Broadcasting Council (an authority responsible for safeguarding freedom of speech and public interest in the media), as well as the reasonableness of constitutional regulation of the status of prosecutor's office.. The bill in question, even if not free of flaws, receives generally positive appraisal from the author. An in-depth reflection is, however, needed on the working out of a consistent concept of distribution of tasks and powers among particular public authorities, as well as specifying the numbers of members of the Sejm and the Senate. A weakness of the bill, in the author's view, is that it does not contain any provision governing Poland's functioning within the structures of the European Union and any consequent conferment of powers on state authorities. The fate of this proposal remains unknown. However, it reveals a range of problems whose solution, in a normative sense, should be based on a public debate, parliamentary resolutions or, probably, decision taken by the sovereign.

4

DOCTRINAL BASIS OF THE RELATIONS BETWEEN CHURCH AND STATE IN THE US SUPREME COURT'S CASE LAW (Doktrynalne podstawy relacji panstwo-Kosciol w Stanach Zjednoczonych w orzecznictwie Sadu Najwyzszego)

100%

Prostak R.

Przegląd Sejmowy

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2011

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nr 5(106)

69-80

EN

In the USA, the constitutional depiction of the relations between Church and State is contained in the First Amendment to the Federal Constitution which set up the 'establishment clause'. The establishment clause prohibits the Congress from passing a law that would establish an official church of the United States (i.e. to establish an official federal religion). The first attempt to give an extensive interpretation of the establishment clause was made in 1947 by Justice Black in Everson v. Board of Education of Ewing Township. The ratio decidendi of the Everson case raised the separation between Church and State to the status of a constitutional norm. In its opinion, the Court invoked Thomas Jefferson's metaphor of the wall of separation, used in a letter to the Danbury Baptist Association in 1802. As a consequence of a US Supreme Court's landmark decision in Everson, the phrase 'wall of separation' spread into the language of politics in America and, what is more important, was frequently referred to by the Supreme Court in its decisions concerning religious freedom in general, and the implementation of the establishment clause in particular. The first use of the above-mentioned phrase in the American political debate took place already in the colonial period. The metaphor of the wall of separation was used by Roger Williams in 1644 in his political pamphlet containing arguments against the institution of a state church in Massachusetts Bay Colony in New England. The article is aimed at reconstruction of doctrinal origins of the metaphor of the wall of separation and its role in shaping perception of proper relations between Church and State in the United States.

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COOPERATION BETWEEN THE PRESIDENT OF THE REPUBLIC OF POLAND AND THE COUNCIL OF MINISTERS AS A CONSTITUTIONAL REQUIREMENT OF ENSURING STATE SECURITY IN THE EVENT OF PARTICULAR THREATS (Wspoldzialanie Prezydenta RP I Rady Ministrow jako konstrytucyjny

100%

Bozek M.

Przegląd Sejmowy

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2011

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nr 2(103)

83-106

EN

According to Poland's constitution, State security is the area of close cooperation between two components of the executive: the President of the Republic and the Council of Ministers. This cooperation makes it possible to prepare adequately the organizational structure of the State to meet the arising challenges or to use appropriate measures to counteract particular threats. In many cases, it is only by that means that a declaration of threat to the State may be revoked, either by joint decision of the President and the Council of Ministers introducing the appropriate extraordinary measure (a state of emergency or martial law) or an order, issued by the President, on request of the prime minister, concerning mobilization and use of the armed forces for purposes of defence. In this respect, responsibility for the State and its security is, in principle, shared equally between both components of the executive power. Moreover, this statement allows us to draw some proposals de lege ferenda. They may include, above all, the proposal to amend Article 134 of the Constitution. It should provide real control of the President over the armed forces for a period of war, at the same time sustaining the principle of collaboration between the above two components of the executive power within the field of State security. There is no intention to abolish the position of the Commander-in-Chief of the Armed Force, but to determine clearly the relations between the President and the government in a particular crisis situation, namely a war. These relation should still be based on the principle of cooperation between the branches of government, explicitly specified in constitution. Article 134 paragraph 4 should include a provision according to which, for a period of war, the President directs the State defence in cooperation the Council of Ministers. It would be, thereby, be possible to provide conformity of the provisions of the Act on Martial Law with the Constitution. To guarantee functionality of that provision, the President would remain to be the Supreme Commander of the Armed Forces, supported by the Commander-in-Chief. Currently he exercises commend over the Armed Forces through the Minister of National Defence. For a period of war he would exercise them through the Commander-in-Chief, so to speak. From the perspective of normative regulation, this would make the system of directing State defence more clear. Current regulation do not meet this requirement. That is because the provisions of the Act of 2002 on Martial Law, implementing the constitutional provisions, depart slightly from the letter and spirit of the Constitution of the Republic of Poland. This conclusion is not only the result of confrontation of the content of Article 134 paragraph 4 first sentence of the Constitution and Article 10 paragraph 2 item 4 of the Act on Martial Law - the Constitution in fact introduces an obligation for appointment of the Commander-in-Chief of the Armed Forces while the Act only provides for such an opportunity. What is probably more important, is that the Act contains provisions whose literal interpretation would cause doubts about the model of directing the defence on the basis of the Act on Martial Law. On the one hand. Article 10 paragraph 1 of the Act (and subsequent provisions developing its content) declares cooperation between the Council of Ministers as a principle governing the State defence. On the other hand, however, Article 16 paragraph 1 establishes supremacy of the President over the Armed Forces, with the omission of that principle. The status and role of the Council of Ministers in the system of State security (derived from the constitutional system government) is ignored.

6

JUDICAL ACTIVISM OF THE CONSTITUTIONAL TRIBUNAL (Aktywizm orzeczniczy Trybunalu Konstytucyjnego)

80%

Banaszak B.

Przegląd Sejmowy

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2009

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nr 4(93)

75-91

EN

Abstract: In the recent decades, there has been growing discussion in the democratic countries on the problem of judicial activism within the supreme and constitutional courts. The above-mentioned notion is generally recognized as a departure by the court beyond adjudicating individual cases, and as involvement in a broadly understood resolution of social problems or in shaping the concept of the state. Judicial activism of the Constitutional Tribunal within such a meaning existed in the first phase of Poland's transformation lasted from June 1989 to the adoption of the current Polish Constitution in 1997. During that period, the norms of the previous constitution, successively amended after 1989, were given - within the jurisprudence of the Constitutional Tribunal (and within jurisprudence of other courts and activities of supreme state authorities) - a new meaning which made it possible to apply solutions adjusted to the changing social circumstances. Therefore, necessary reforms could be implemented relatively quickly without a time-consuming work on modification of the constitution. Judicial activism of the Constitutional Tribunal has not yet been thoroughly examined in the Polish literature of constitutional law. The problems related to it are seldom recognized and discussed only in the context of other issues or in glosses to judgments. Judicial activism existing after the adoption of the 1997 Constitution is diversely appraised. Negative appraisals appeared rarely in the beginning of that period, and, over time, became more frequent. Excessive judicial activism of the Tribunal may lead to a situation in which the Tribunal will decide not only of the vision of the law-governed state, but rather of its particular solutions. It should be noted, that judicial decisions made by the Tribunal are no more subject to institutionalized legal review. Therefore, it is difficult to understand why these decisions, and not the decisions of the legislative power, would have priority and be more consistent with the expectations of the public. On the contrary, it is parliament itself, chosen in democratic way, that is - on its nature - better fit to articulate these expectations. Otherwise, it would be shown that the constitutional court occupies a central position within the system of government (as some authors imply on the basis of experiences of an increased judicial activism in some modern democracies). In Poland, the scope of judicial activism of the Constitutional Tribunal is not large enough to enable us to say that the above-mentioned threat is real.

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THE TRIPARTITE DIVISION OF POWERS PRINCIPLE. THE CONSTITUTIONAL TRIBUNAL AND JUDICIAL ACTIVISM (Zasada trójpodzialu wladzy. Trybunal Konstytucyjny i aktywizm sedziowski)

80%

Morawski L.

Przegląd Sejmowy

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2009

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nr 4(93)

59-74

EN

The article provides an analysis of activism of constitutional courts in the context of the principle of division of powers. The author shows that activism is an unavoidable phenomenon in judicial practice and that, due to the principle of judicial independence, it is difficult to scrutinize effectively this activism. In the author's opinion, there exist, however, instruments for more effective control of an excessive activism of constitutional courts. These instruments include, inter alia, application of strict rules of taking decisions by constitutional courts (qualified majority) and rigorous interpretation of the presumption of constitutionality of statutes, as well as adoption of such reasons-giving procedures for the decisions which will better fit the imperatives of constitutional policy. Nevertheless, the severe judgment of public opinion is the best guarantee for the decisions of constitutional courts.

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CONSTITUTIONAL ACCOUNTABILITY IN THE CONTEXT OF THE PRINCIPLE OF REPRESSIVE PROVISIONS (Odpowiedzialnosc konstytucyjna w swietle zasady okreslonosci przepisów represyjnych)

80%

Gromek Z.

Przegląd Sejmowy

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2010

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nr 2(97)

9-28

EN

The article examines the provisions concerning constitutional accountability (Article 198 para. 1, Article 145 para. 1 and Article 156 para. 1 of the Constitution) in the context of the principle of specific nature of a prohibited act. From the constitutional principle of 'nullum crimen sine lege' (Article 42 para. 1 of the Constitution) stems, inter alia, the requirement for precise and explicit statutory definition of material elements of a prohibited act, which prevents repressive provisions of a blanket nature from being enacted The requirement for sufficient specificity of the features of a prohibited act covers all forms of repressive responsibility, including constitutional accountability. The fact that the constitutional legislator has given the regulations establishing constitutional accountability the form of blanket provisions may raise doubts whether the specificity requirement has been thereby met. The article provides arguments that seem to support the use a blanket provision in this case. The author points out that, in view of the jurisprudence of the Constitutional Tribunal, the principle of specificity is not absolute. At the same time, in the context of disciplinary responsibility which is similar to constitutional accountability, the constitutional court permits the application of blanket regulations. A similar structure is applicable to criminal liability for abuse of powers of authority (Article 231 §1 of the Penal Code). The author believes that only such approach to liability may guarantee full protection of the principle of legalism in the functioning of the supreme organs of the state. He also draws attention to the fact that regimes of liability stricter than those applied to regular citizens are allowed in relation to persons holding public functions.

9

NÁRODNOSTNÍ OTÁZKA Z POHLEDU VÝVOJE MEZINÁRODNÍ OCHRANY NÁRODNOSTNÍCH MENŠIN

80%

Scheu H. C.

Človek a spoločnosť. Internetový časopis pre pôvodné teoretické a výskumné štúdie z oblasti spoločenských vied

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2013

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tom 16

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nr 4

-

EN

On the national level the Constitutional Act No. 144/1968 which regulated the status of nationalities in the Czechoslovak Socialist Republic was certainly a unique legislative action in the field of minority rights. It guaranteed certain minority rights at least to four explicitly mentioned nationalities. The aim of this paper is to describe briefly the development of the protection of national minorities after World War II until the end of the 1960s from an international perspective. We believe that with a view to this context the specific national models may be better evaluated.

10

SHAPING OF CONSTITUTIONAL PRINCIPLES OF STATE'S MEMBERSHIP IN THE EUROPEAN UNION (SELECTED PROBLEMS) (Ksztaltowanie konstytucyjnych zasad czlonkostwa panstwa w Unii Europejskiej (wybrane problemy))

80%

Kruk M.

Przegląd Sejmowy

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2010

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nr 4(99)

41-62

EN

During the discussions on the adoption of new provisions o the Polish Constitution of 1997 relating to Poland's membership in the European Union numerous dilemmas have arisen regarding both the subject of possible regulation and forms of presentation of new principles and procedures. The authoress only points to those problems that are likely to be disputable and controversial. Among them is, first of all, the description of EU in the constitution, i.e. a particular constitutional 'definition of the Union'. The author examines arguments for and against such a legislative solution and provides its analysis based on similar provisions of the constitutions of other member states (especially Article 23 of the Basic Law of the Federal Republic of Germany). She does not confine herself to an analysis of the provisions of the constitution, but also considers the purpose for insertion of provisions of such type in constitutions. In this respect, she refers to the jurisprudence of constitutional courts. The judgment of the German Federal Constitutional Court on the Treaty of Lisbon provides an example. In this judgment, the Court applied Article 23 of the Basic law as a constitutional criterion of conformity of the treaty with the German constitution. In this context, the authoress examines the issue of a formal classification of the Union as legal entity, an international organization, union of states, etc. as well as its relation with a federation model. The second issue discussed in this article is the principle of equality of member states in the European Union and, especially, whether we can recognize it as a principle underpinning the Union. The authoress provides the examples of those constitutions which expressly formulate such principle with the aim of proving that they consider that principle, above all, as equal rights and obligations to determine the fundamental principles governing the functioning of the Union and making its basic decisions. Moreover, this approach is not undermined by the use a qualified majority vote and unequal participation of member state e.g. in the composition of the European Parliament. Another controversial issue is whether we can recognize that EU member states transfer specific powers to the EU level to be jointly exercised. As we can see, most of the constitutions of member states treat the aim of such delegation in this way, confirming the maintenance of sovereignty, also because this does not mean the transfer of powers to a particular separate third party. This approach is not undermined by the exercise of powers by the institutions of the Union. The final issue deals with implementation of EU law. In our country, it is a particularly 'sensitive' issue, because Poland is one of the EU member states that are lagging behind in the implementation of the directives. Consequences of this fact affect not only the political and economic spheres, but also the prestige of the state and the rights of its citizens. Therefore, the question arises whether the constitution might contain any provisions to prevent this situation from occurring. In the Polish context, this relates to the need for introduction of new legal instrument by the government in the form of regulations having the force of a statute.

11

THE MAY 3, 1791 CONSTITUTION AS A POLITICAL TESTAMENT OF THE POLISH-LITHUANIAN COMMONWEALTH (Konstytucja 3 Maja 1791 r. Testament polityczny I Rzeczypospolitej)

80%

Uruszczak W.

Przegląd Sejmowy

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2011

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nr 2(103)

9-40

EN

The First Polish Rzeczpospolita (i.e. Polish-Lithuanian Commonwealth) was established as a union of two states (Kingdom of Poland and Grand Duchy of Lithuania) ruled by a common Jagiellon dynasty. The union took place in Lublin, in 1569. In the second half of 17th century the Commonwealth entered a period of protracted political and social crisis, leading to acceptance of a Russian protectorate in 1768 and the first partition in 1772. The events of 1768-1772 greatly shocked the nation dominated by the nobility (szlachta). In the subsequent years their support for political and social reforms was growing. A key role in work on the reform was to be played by king Stanislaus Augustus Poniatowski. In 1787, he obtained consent from the Russian empress Catherine II to convene a so-called 'Confederated Sejm' whose decisions had to be made by majority of votes. This assembly, also known as the Four-Year or Great Sejm, began its session on 6 October 1788 in Warsaw. It had a considerable success in the legislative area, with a 'Government Act' of May 3, 1791 (known as the May 3 Constitution) as a crowning achievement. The adoption of the May 3 Constitution was a successful attempt to regulate the system of State government in accordance with the dictates of reason, taking into account recommendations of science as well as domestic and foreign experiences. The authors of the Constitution made reference to British and American constitutional patterns, and some even considered it to be superior to them. The Constitution consisted of an introduction (preamble), a principal part divided into 11 articles, and a conclusion. It was given the status of a supreme law, designed as a frame construction, whose provisions had to be developed by way of statutes. It's adoption reflected the nation's aspiration to free itself from the sense of powerlessness, from its will to regain independence and self-governance. It had paved the way for a moderate reform of the country's political and social system. The Constitution had both a conservative and reformatory face. This fact reflects the sense of reality and responsibility on the part of its authors. Their conservatism was particularly manifested in the field of social reforms. They did not dare to radically transform the system of social relations by way of abolishing the class division of society. In the field of political system, they had adopted a system of hereditary constitutional monarchy which strengthened the status of the king, guaranteed effective government and improve the role of the sejm in representing the nation. The May 3 Constitution was overthrown in 1793, officially repealed at the assembly in Grodno, as a result of a plot by the neighbouring powers and betrayal on the part of the Constitution's opponents, including Szczesny Potocki, Seweryn Rzewuski, Ksawery Branicki, Szymon Kossakowski and other leaders of treacherous Targowica Confederation. However, the Government Act remained vivid in the memory of the Polish nation. It made it easier for them to survive the time of bondage and helped keep alive its dignity and hope for rebirth of the Polish state. For Poles nowadays, the May 3 Constitution is considered as a political testament of the Polish-Lithuanian Commonwealth. It imposes on generations of Polish nation an obligation to build independent society, in harmony and sense of responsibility for the mutual good, and in the sprit of openness to those nations with whom they shared their destiny.

12

INTERNAL LEGITIMACY OF A CONSTITUTIONAL COURT (Wewnetrzna legitymacja sadu konstytucyjnego)

80%

Zajadlo J.

Przegląd Sejmowy

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2009

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nr 4(93)

129-144

EN

The purpose of the article is to present the problem of legitimacy of a constitutional court not from the point of view of its powers and status within the system of government (an external perspective) but from the point of view of its actual composition (an internal perspective). The notion of internal legitimacy is meant by the author as a sum of the Tribunal's authority, knowledge, qualifications and experience of its judges, as well as the rules and principles used for their election. In the recent years, a lively discussion takes place in the world's literature on philosophy of law and constitutional law concerning the procedures for nomination and election of constitutional judges as well as the models for shaping the composition of organs exercising the review of constitutionality of laws. The author presents a current review of this problem on the basis of the US and German literature, focused in particular on the opinions criticizing an actual practice of nomination the judges to the US Supreme Court and to 'Bundesverfassungsgericht'. According to the author, the solutions adopted in the Constitution of the Republic of Poland and in the Constitutional Tribunal Act are unsatisfactory in the context of the need to create an internal legitimacy of an organ responsible for review of the constitutionality of laws. This concerns both the model of selection of candidates and the procedure for election of the judges of the Constitutional Tribunal, as well as substantive requirements applied to them. To address each of these problems the author uses, on the one hand, the method of 'veil of ignorance' proposed by John Rawls and, on the other hand, the theory of hard cases developed by Ronald Dworkin. In the conclusion, he states that, firstly, more requirements should be added for candidates for a position of a judge of constitutional court, to complement the one that they should 'be distinguished by their knowledge of law'; secondly, the circle of subjects entitled to nominate candidates should be broader than a group of Deputies or the Presidium of the Sejm; thirdly, the resolution concerning the election of the judges of the Tribunal should be adopted by a qualified majority of votes of Deputies. This is the only way in which internal legitimacy of an organ responsible for the review of constitutionality of laws may be created, since in such case the model of law application and interpretation differs considerably from the traditional court model.

13

RESPECT FOR CONSTITUTIONAL IDENTITY OF THE MEMBER STATES OF THE EUROPEAN UNION (Poszanowanie tozsamosci konstytucyjnej panstw czlonkowskich Unii Europejskiej)

80%

Wojtowicz K.

Przegląd Sejmowy

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2010

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nr 4(99)

9-21

EN

Complementing the principle of conferred powers by an obligation of the European Union to respect the national identity of member states specified in Article 4(2) TEU, inseparably linked with their political and constitutional structures, has induced some constitutional courts to apply the notion of 'constitutional identity' to determine a more precise limits of Union's competences. Therefore, even if the notion of constitutional identity (similarly to national identity) is not legally defined, in the content of constitutions of the member states one can find the principles governing the existence of a state as a specific, separate and sovereign body. For example, from the jurisprudence of the French Council of State it follows that the constitutional principles which specifically reflect the modern French statehood include those which are specified in Articles 1 and 3 of the French Constitution. Moreover, the German Federal Constitutional Court held that the constitutional authorization for Germany's participation in the process of European integration must remain within the limits prescribed by Article 79 (3) of the Basic Law. An a priori determination of strict limits of the EU competences is neither possible nor desirable, because the ultimate shape of its system of government cannot be predicted yet. However, the consolidation of the principle of respect for constitutional identity and specification of its content may contribute to the strengthening of the sense of legal certainty in the complex legal order existing in the European Union. Then, reinforcing of the effectiveness of integration will be balanced by the specification, in concrete terms, of the limits of Union's interference in the domestic legal systems of member states. The ensuring of such balance will depend on harmonious cooperation between the Court of Justice of the European Union and the courts of member states, particularly those responsible for the review of constitutionality of law.

14

ELECTORAL QUOTAS IN THE ITALIAN LEGAL SYSTEM (Kwoty wyborcze we wloskim systemie prawnym)

80%

Olivetti M.

Przegląd Sejmowy

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2011

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nr 1(102)

71-83

EN

Parliamentary electoral system, established in Italy in 1948, was based on proportional representation for both chambers of parliament. In 1993 this system was abrogated by virtue of the provisions of Laws No. 276 and 277, and a mixed substantially majoritarian system was introduced. A new modification of electoral system was made in 2005 when Law No. 270 was adopted and the return to proportionality, although with a majority premium, took place. The majority premium consists of giving a premium in seats to the (party) list having obtained the highest number of votes throughout the entire country in the election to the Chamber of Deputies and - in a regional level - in the election to the Senate. At the same time, in Italy five abrogative referendums were held, on application of citizens, in relation to laws governing general or local elections. In the first half of the 1990s, in the wake of the debate about gender issues, there appeared in the course of political debate the problem of equal opportunities of men and women and ways of counteracting the inadequate representation of women in political bodies chosen in general and direct elections (municipal, provincial and regional councils and national parliament). The article contains description of various techniques aimed at increasing women's participation in political institutions. The author identifies two stages in search for solutions to the problem: the years 1993-1995 and the years 2001-2010. At the first stage, the following types of regulations were applied: 1) political parties were legally obliged to submit electoral lists containing certain minimum percentage of candidates of both men and women, however this system of reservation on electoral lists of a particular quota for women did not guaranteed their election; 2) granting of quotas on the closed electoral lists with an obligation to arrange electoral lists that would include both men and women alternately, which guaranteed some 'quota' of seats for each of them. However, this system was challenged by the Italian Constitutional Court which found the above-mentioned provisions concerning the so-called 'electoral quotas' to be unconstitutional and, hence, they were deleted from the legal system. The judgment was criticized by those political groups which, in the Constitutional Law No. 3 of 2001, had adopted a constitutional provision which requires that 'regional laws shall remove any hindrances to the full equality of men and women in social, cultural and economic life and promote equal access to elected offices for men and women', and added - in the Constitutional Law No. 1 of 2003 -that 'to this end, the republic adopts specific measures in order to promote equal chances for men and women.' Thereby, an obligation to promote equal chances of men and women at both regional and national level was confirmed. The above-mentioned amendments preceded the second stage of search for adequate solutions. In Valle d'Aosta a regional law was adopted in 2002 that prohibited against the creation of electoral lists containing candidates of only one sex. The government of the Republic brought the law to the Constitutional Court, which however did not share the government's arguments, drastically changing its attitude to electoral quotas comparing with the Court's judgment of 1995. This meant, first of all, its approval of the possibility of regulation of electoral quotas by both regional laws (Valle d'Aosta, Calabria, Marche, Abruzzo, Sicily) and national laws. In 2009, the question of electoral quotas was inventively treated by the regional council of Campania (in regional law No. 4 of 2009), by making reference to electoral quotas in the context of both the right to vote and the right to be elected. That solution was a new approach. The law was brought by the government of the Republic to the Constitutional Court, which did not agree with the government and found the law to be constitutional.

15

PRELIMINARY EXAMINATION OF CONSTITUTIONAL COMPLAINTS IN THE COURSE OF PROCEEDINGS BEFORE THE CONSTITUTIONAL TRIBUNAL (Wstepne rozpoznanie skarg konstytucyjnych w postepowaniu przed Trybunalem Konstytucyjnym)

80%

Jamroz L.

Przegląd Sejmowy

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2010

|

nr 3(98)

61-84

EN

This article deals with preliminary examination of constitutional complaints by the Constitutional Tribunal. This procedure is governed by the Constitutional Tribunal Act and the Rules of Procedure of the Constitutional Tribunal. Additionally, pursuant to Article 20 of the Act, the provisions of the Code of Civil Procedure apply, as appropriate, in relation to cases not regulated in the Act concerning the proceedings before the Tribunal. Preliminary examination is the first and obligatory stage of the proceedings in the Constitutional Tribunal in relation to constitutional complaints. It formally begins at the moment of its submission and ends with either the issuance of an order to refer the complaint for consideration or a decision concerning the refusal to proceed with further action, or a decision concerning non-admittance of the complaint against the refusal - if such complaint has been submitted. The stage of preliminary examination of the complaint differs considerably from the successive stages of possible further consideration of the complaint. The difference results, above all, from the fact that preliminary examination has another goal, which is the selection of constitutional complaints aimed at eliminating of those submissions, marked by the applicant as complaints, which cannot be the subject of proceedings in the Tribunal because they do not meet the constitutional and/or statutory requirements (either substantive or formal. At the stage of preliminary examination the Tribunal assesses whether the requirements for consideration of the complaint are satisfied. The popularization of constitutional complaints in Poland is reflected in an increased number of complaints concerning constitutional infringements submitted to the Tribunal. Consequently, the importance of the stage of preliminary examination of complaints grows respectively, as it exerts considerable influence on the scope and way of the exercise of protection of fundamental rights and freedoms guaranteed by the Constitution... The stage of preliminary examination does not constitute part of jurisprudence of the Tribunal; however, it plays an important role in the proceedings concerning constitutional complaints.

16

'EURO-AMENDMENT' PROPOSED IN BILLS AMENDING THE CONSTITUTION OF THE REPUBLIC OF POLAND: AN ASSESSMENT ATTEMPT ('Euronowelizacja' w projektach ustaw o zmianie Konstytucji RP. Proba oceny)

80%

Kustra A.

Przegląd Sejmowy

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2011

|

nr 3(104)

31-54

EN

Following several years of Poland's membership of the EU and after the ratification and entry into force of the Lisbon Treaty, the idea of a large-scale 'Euro-Amendment' has reached its 'constitutional moment'. In this article the author makes an attempt to compare two proposals providing for a wide-ranging review of the constitution in connection with Poland's membership of the EU. These include a Presidential Bill which was mostly the result of work of the science team established in 2009 by Bronislaw Komorowski, the then Marshal of the Sejm (Sejm Paper No. 3598) and a Deputies' Bill submitted by members of the Law and Justice Party (Sejm Paper No. 3687). The bills amending the constitution discussed in this article reveal the existence of a political impetus for a far-reaching modification of the basic law in relation to matters connected with Poland's membership of the EU. A comparison of the two bills demonstrates that they differ remarkably not only in the content of the proposed constitutional solutions, but also in some of the bills' general underlying assumptions. The Presidential Bill contains (both in the title of a new Chapter Xa and in its provisions) a direct and explicit reference to the European Union.. On the other hand, the Deputies' Bill maintains the existing provisions guaranteeing unlimited scope of delegation of powers, repeating the current wording of Article 90 of the Constitution, which states that such a delegation is made to an international organization or an international institution Different approach has been applied in relation to amendment of Article 227 of the Constitution (proposed only in the Presidential Bill). Differences manifest themselves also in the concept of 'European policy' of the government and in the method of governing the relations between the executive and legislative branches of government in the exercise of competences relating to the EU membership. Therefore, the passing of the 'Euro-Amendment' of Polish basic law will, in fact, depend on the willingness of politicians to compromise to get a qualified majority of two-thirds of votes in the Sejm and absolute majority of votes in the Senate, as required by Article 235 of the Constitution.

17

EUROPEANIZATION OF POLISH CONSTITUTIONAL LAW (O zjawisku europeizacji polskiego prawa konstytucyjnego)

80%

Lis-Staranowicz D. , Galster J.

Przegląd Sejmowy

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2010

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nr 2(97)

29-51

EN

Europeanization of law is the consequence of influence of European integration on the domestic legal system of countries aspiring to EU membership. The constitution is not free from this influence. To put it more simply, Europeanization of the constitution means constitutionalization of matters either related (even if in a different way) to European Union law ('a sensu stricto' Europeanization) or generally connected with law enacted by European international organizations ('a sensu largo' Europeanization). Constitutional transformation resulting from the EU accession is mostly reflected in the organizational structure of the state. In Poland, the consequence of delegation of some powers of state authorities to the European Community/European Union (under Article 90 of the Constitution) means the extension of the state activity to the European level. This function of the state does not correspond with the classical separation of powers doctrine. The exercise of this function only by the Council of Ministers threatens the balance of powers guaranteed by Article 10 of the Constitution. There is, above all, a need for involvement of the representative bodies of the Nation in the exercise of this function. Therefore, an amendment to the constitution should be considered that would specify the principles of cooperation in European affairs between the Council of Ministers, the Sejm and the Senate, and the president of the Republic. Europeanization of the constitution does not always have positive effect on its 'improvement'. It may lead to 'erosion' of constitutional standards: disavowal of the principles of the system of government, the weakening of the regulatory function of the state. The absence of constitutionalization of the 'progress in integration' exposes the legal system to criticism for being contradictory and lacking completeness. The scope of Europeanization should be limited by the so-called identity of the constitution, i.e. a relative immutability of fundamental constitutional principles and values. When proclaiming an 'integration option', their authors have not identified those categories which determine the substance of the basic law.

18

PROCEDURE FOR THE CONTROL OF HIERARCHICAL CONFORMITY OF LEGAL NORMS BY THE CONSTITUTIONAL TRIBUNAL (Postepowanie przed Trybunalem Konstytucyjnym w sprawie hierarchicznej kontroli norm)

80%

Tuleja P.

Przegląd Sejmowy

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2009

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nr 5(94)

35-51

EN

The article deals with the procedure for the control of hierarchical conformity of legal norms by the Tribunal. The starting point is the analysis of the differences between the procedures, as a result of a specific type of the subject of control. Then, the basic principles of the procedure contained in the Constitutional Tribunal Act are discussed. The analysis of these principles provides a basis for the description of a preliminary consideration, a hearing before the Tribunal and the stage of rendering a judgment. The different procedural institutions are examined for their compatibility with the subject of the proceedings, i.e. the control of norms. In this respect, the author presents critical comments indicating incompatibility of the existing solutions with the duties to be currently performed by the Constitutional Tribunal and with 'de lege ferenda' propositions. Among the latter, the most important are: drawing up a new procedure for the selection of cases, particularly the selection of constitutional complaints, application of new instruments of hearing procedure in order to facilitate gathering of information by the Tribunal, diversification of the duties of the parties to the proceedings and the use of a written procedure instead of oral hearing.

19

THE PRICIPLE OF BINDING LIMITS OF APPLICATION IN THE JURISPRUDENCE OF THE CONSTITUTIONAL TRIBUNAL (Zasada zwiazania granicami wniosku w orzecznictwie Trybunalu Konstytucyjnego)

80%

Kustra A.

Przegląd Sejmowy

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2010

|

nr 3(98)

41-59

EN

While adjudicating, the Constitutional Tribunal is bound by the limits of the application, question of law or complaint. This principle, together with the principle of accusatorial procedure, determines the extent of the cognizance of the Constitutional Tribunal. The jurisprudence of the Tribunal shows that it is relatively free in interpreting 'the limits of the application'. Sometimes the Tribunal goes beyond the claim of the applicant (ne ultra petitum), or discontinues the proceedings in relation to part of the claim specified in 'petitum', even if the conditions for this (the pronouncement of a judicial decision is inadmissible or the normative act has ceased to have effect) have not been met. The extension of the limits of application beyond that specified in 'petitum' is reflected by the recognition by the Tribunal of the 'falsa demonstratio non nocet principle' and by the ex officio review of the provision specified in the application from the formal-legal point of view. The review of legality of part of the claim specified in the application takes place when the Tribunal has discontinued the proceedings due to uselessness of the pronouncement of a judicial decision where it held that the subject of the claim does not conform with one of several indicated patterns of review. In such event, the Tribunal's proceedings relate to the conformity of the provision under review with the other patterns indicated in the application. This article presents most important decisions of the Constitutional Tribunal concerning the interpretation of the principle of that the Tribunal is bound by the limits of the application. The examples of the use of systematic and functional interpretation of the above-mentioned principle have no distinct normative basis in Poland's Constitution or the Constitutional Tribunal Act and result from the judicial practice of the Tribunal. As concerns each element of the principle of binding limits of adjudication as described in this article, a relatively established line of Tribunal's jurisprudence may be noticed. Moreover, in principal reasons for its rulings the Tribunal usually presents arguments for extension or limitation of the scope of adjudicated matter in relation to the claim specified in 'petitum' of the application. The to date interpretation of the above-mentioned principle does not threaten the principle of accusatorial procedure before the Constitutional Tribunal. Some doubts may, however, be raised about Tribunal's discretion in the application of the described rules enabling limitation or extension of the scope of review in particular cases.

20

NEW PHENOMENA IN THE CONSTITUTIONALITY REVIEW OF LAWS (A CONTRIBUTION TO THE DISCUSSION ON THE LEGITIMACY OF CONSTITUTIONAL COURTS) (Nowe zjawiska w kontroli konstytucyjnosci ustaw (przyczynek do dyskusji nad legitymizacja sadownictwa konstytucyjnego

80%

Garlicki L.

Przegląd Sejmowy

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2009

|

nr 4(93)

93-109

EN

The debate on the legitimacy of constitutional courts takes place more than two centuries and the positions of the supporters and opponents of constitutional protection of the constitution are widely known. That debate, however, is held in the changing political and constitutional contexts. This article deals with the question whether the evolution taking place in constitutional judiciary in the recent quarter of a century allows us to identify new trends converting the above-mentioned contexts. From this point of view, three phenomena seem to deserve more attention: - fast expansion of constitutional judiciary in the so-called new democracies in our region has provided new arguments for the need of a powerful and independent constitutional court; - the appearance of a 'weak-form' of constitutionality review in some Anglo-Saxon systems proved that it was possible to create an intermediate model that offers compromise between the traditional solutions; - development of jurisprudence of extra-national European courts has resulted in the appearance of a new form of review of laws by national courts, and thereby contributed to the departure from traditional understanding of sovereignty of parliament and inviolability of laws.