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25th Anniversary of the Establishing of the Constitutional Tribunal Activity

Poland’s Constitutional Tribunal has conducted its activities for 25 years now. The first Constitutional Tribunal Act was adopted on 25 April 1985. Three years earlier, the constitutional amendment of 26 March 1982 provided for introducing this institution into the Polish legal system. The time between those acts saw strenuous conflict as to its jurisdiction. From the very beginning, influential groups opposed the idea of establishing a constitutional court, aptly considering this institution independent and difficult to be politically subordinated.

Under these circumstances it is no surprise that the Constitutional Tribunal Act of 29 April 1985 - a result of a difficult compromise - contained a number of limitations imposed upon the Tribunal’s position and competences. The most important limitation was set out already in the constitutional amendment of 1982, whereby only some of the Tribunal’s decisions would be final. If a statute was deemed not to conform with the Constitution, the Tribunal’s ruling was subject to a review by the Sejm, which could overrule it with a two-thirds majority vote. Such a solution was an attempt at a compromise between establishing the constitutional judiciary and maintaining the principle of unity of state authority. In practice, from its very first decision of 28 May 1986, Polish Constitutional Tribunal was able to operate with a degree of independence and developed a substantial portfolio of rulings.

Even though its powers regretfully remained limited, even following the breakthrough of 1989, the Court issued many decisions and won considerable authority among political elites and experts in legal doctrine. The Tribunal’s jurisprudence expanded, in particular, such constitutional clauses as the principle of the rule of law or the principle of equality. Thus it eliminated legislative gaps and uncertainties which arose in the absence of a modern constitution.

Not earlier than with the Constitution of 2 April 1997 and the Act of 1 August 1997 was the Tribunal entrusted with a mandate on par with its counterparties in other countries.

The primary function of the Constitutional Tribunal is to control hierarchical conformity of legal norms, adjudicate on the conformity of legal norms of lower rank to those considered superior (especially the Constitution), thus eliminating the norms inconsistent with the system of law in force. The exclusive point of reference for such adjudication is the law (Constitution).

The Constitutional Tribunal primarily seeks to:

1) review legal norms (both abstract and specific); a particular procedure for reviewing the norms is the adjudication on constitutional complaints;
2) settle disputes over authority between the central constitutional organs of State;
3) decide on the conformity with the Constitution of the purposes or activities of political parties;
4) acknowledge a temporary incapacity of the President of the Republic to discharge his office.

No doubt, the fundamental competence of the Tribunal is the review of legal norms. The Polish system of legal norm review assigns priority to a posteriori review, which refers to such normative acts which are already enacted, are in force or are still in the vacatio legis period. Only exceptionally may the review of norms be of preventive nature (review conducted a priori) and the only subject entitled to initiate such a review is the President of the Republic.

The Constitutional Tribunal is composed of 15 judges chosen individually by the Sejm for a term of office of 9 years. It is of crucial importance for the Tribunal’s position and its method of functioning that – pursuant to Article 195 para. 1 of the Constitution - Judges of the Constitutional Tribunal shall be independent in the exercise of their office. A fundamental guarantee of this independence is the prohibition to appoint the same judge for more than one term of office and, on the other hand, the prohibition to remove a judge from the office during the term.

Adam Jankiewicz, J.D.