The Polish Constitutional Tribunal before 2015
The history of judicial review in Poland is relatively short (compared to the United States or some countries in Western Europe) and is just over 30 years old. The decision to introduce a centralised model of constitutional review and to establish the Constitutional Tribunal was made in 1982, still during the period of martial law.[316] The Constitutional Tribunal was established by the Act of 26 March 1982, amending the Constitution of the Polish People’s Republic.
Thus, Poland was the only country from the socialist bloc (apart from Yugoslavia[317]), where judicial constitutional review was introduced to the political system before the system transformation.[318] From the very beginning, the Constitutional Tribunal was treated as an ‘unwanted child’ of the socialist regime.[319] The introduction of a judicial review of constitutionality (similarly to the establishment of the State Tribunal in the same act of constitutional amendment as well as the appointment of the Ombudsman in 1987) was a response to growing social discontent caused by the economic crisis. The authorities were afraid of the new institution; hence it took three years to work on the law that would enable the functioning of the Constitutional Tribunal, during which time a total of 15 projects of the legal act were drafted.[320] The Act of 29 April 1985, which was finally passed, was a compromise between supporters of judicial constitutional review coming mainly from legal circles and the political majority still rooted psychologically in a system based on the supremacy of the parliament (and in fact of the socialist party). The position and powers of the Tribunal were limited. Decisions on the unconstitutionality of laws were not final and could be rejected by a resolution of the Sejm adopted by a two- thirds majority. (It should be added, however, that the same majority was needed to amend the Constitution of the Polish People’s Republic.)The Constitutional Tribunal officially began adjudicating on 1 January 1986. Its members consisted of 12 judges elected for an eight-year term. The first three years of the Constitutional Tribunal was a period of quite conservative jurisprudence. Until the end of 1988, the Constitutional Tribunal focused on the control of sub-statutory acts. Only three of the 33 cases adjudicated by the Constitutional Tribunal in 1986-1989 concerned legal acts, and only one was found to be unconstitutional.[321]
After 1989, the Constitutional Tribunal’s activism grew significantly. This was influenced (apart from the dynamically changing political situation in the country) by a significant shift in the composition of the Constitutional Tribunal; half of the judges ended their terms of office and in November 1989 they were replaced by six new ones, supported by Solidarity.[322] With this ‘refreshed line-up’, the Constitutional Tribunal played a key role in the most important phase of the political transformation. The basic tool in this process turned out to be the activist interpretation, introduced in December 1989 to Art. 1 of the Constitution of the Polish People’s Republic of 1952, of the rule of law (literally: a democratic state ruled by law).[323] In its jurisprudence, the Constitutional Tribunal assumed that as a consequence of the principle of a democratic state ruled by law introduced to Art. 1 of the Constitution of the Polish People’s Republic, then a number of other important constitutional principles and fundamental rights would come into force (not explicitly included in the then-binding text of the constitution), such as the tripartition of power,[324] the prohibition of legal retroactivity,[325] the principle of citizens’ trust in the state and the law it creates[326] (meaning, inter alia, the duty to take into account the legal and social effects of a new law when creating intertemporal provisions), the principle of equality,[327] the right to a fair trial[328] and the right to privacy.[329] On the one hand, this activism of the Constitutional Tribunal allowed for a rapid transition of the legal system, but on the other hand, it was also criticised by some legal philosophers.[330]
Art. 2 of the 1997 Constitution of the Republic of Poland, currently in force, repeats the wording of Art.
1 of the Constitution of 1952 (in the version after the amendment of 1989), and the Constitutional Tribunal, after the Constitution of 1997 entered into force, concluded that the jurisprudence developed so far regarding the principles of the rule of law remains valid,[331] although some of the previous constitutional principles and fundamental rights, previously derived from the rule of law, were clearly entered into the text of the Constitution of 1997 (including the principle of the tripartition of power,[332]nullum crimen sine lege.[333] the right to a fair trial[334] and the right to privacy[335]).The Constitution of 1997 strengthened the current political position of the Constitutional Tribunal, mainly by introducing the finality of judgments given by the Constitutional Tribunal.[336] Moreover, it modified the existing regulations regarding the composition and jurisdictions of the Constitutional Tribunal. The number of judges increased from 12 to 15, which was justified by the extension of the jurisdictions of the Constitutional Tribunal, mainly to adjudicating on constitutional complaints. The judges’ term of office was extended from eight to nine years.[337] The only, but significant, loss of the existing jurisdictions concerned the establishment (in the form of abstract resolutions) of the so-called generally applicable interpretation of law.[338] These changes at the constitutional level needed to be reflected and detailed at the statutory level, which led to the adoption of the new Constitutional Tribunal Act (the Act of 1 August 1997).[339]
Pursuant to the binding Constitution, the scope of the Constitutional Tribunal’s jurisdiction includes what may be broadly understood as constitutional review (both ex ante and ex post, including legal questions from courts and constitutional complaints), adjudication on the unconstitutionality of objectives and activities of political parties, resolving jurisdiction disputes (between central, constitutional organs of state) and adjudicating on the temporary replacement of the President of the Republic of Poland by the Marshal of the Sejm (when the President himself cannot delegate his duties to the Marshal).[340]
After 1997, the Constitutional Tribunal built up its constitutional and social authority fairly consistently.
After a relatively short space of time, citizens became convinced of the need for constitutional complaint, introduced in 1997, which in Poland means the typical constitutional control of a legal provision (rather than a court ruling or an administrative decision per se). The number of legal questions from courts also increased. Of course, as is the case with any constitutional court, some judgments of the Polish Constitutional Tribunal have been severely criticised, but until 2015 the Constitutional Tribunal had been an organ of state that had enjoyed considerable social authority, and until 2015 had never been the object of a direct political attack.[341]4