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Closely Watched Democracy: Some Remarks on Judicial Activism and Limits of Constitution Revisions

Referring to the decision of the Constitutional Court of the Czech Republic described in the same issue by Zdeněk Koudelka the author considers the decision a model example of judicial activism (JA). Mainly in the context of Polish experiences, he analyses the specifi c syndrome of political JA. The area in which JA can manifest itself with all its might is the constitutional jurisdiction with its role of the controller of law constitutionality. However, it is also visible for instance in these decisions of the European Court of Human Rights from which parliaments and governments of the European democratic countries learned with disbelief that the negotiated, signed and ratifi ed Convention results in a ban on practices which at the moment of concluding the Convention were in these countries regarded as normal and obvious. Political JA should not be regarded as an absolute evil. Exceptionally, it can be justifi ed, e.g. if it is to save human beings (preventing from the abortion legalization) or to protect the democracy from its eliminating on a legal way or to protect from other form of an evident “tyranny of the majority“. However, the opportunities to act like this are extremely rare in the democratic system, and the cases of „an everyday” political JA are much less convincing although their offi cial and unoffi cial justifi cation tends to indicate the threats which the disputable decision would eliminate. Hans Kelsen, the author of a Central European model of the constitutional jurisdiction, has warned against certain forms of political JA. The author also wonders whether the Polish Constitution would allow for any arbitrary amendments to its wording, or whether the Constitutional Tribunal could invalidate some amendments although the required procedure of their introduction was kept if they infringe “the unchangeable material core of the constitution“. Regardless of lack of the explicit indications in the text of the Polish Constitution, the idea of a limited competence of the constitutional lawmaker has a reasonable justifi cation and deserves a comprehensive discussion.

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Unconstitutional Constitutional Law: a Landmark Decision of the Czech Constitutional Court

In September 2009 the Constitutional Court of the Czech Republic abolished a constitutional act although it was enacted in the required procedure of a qualifi ed majority of votes in both chambers of the Czech Parliament. The disputed constitutional act shortened ad hoc the current parliamentary term of the Chamber of Deputies, opening the way to pre-term elections which were to break the impasse in the parliamentary powers’ confi guration. The Court held that the constitutional law of such content is in the rule of law system unacceptable although in the past Czech constitutional practice such solution was already adopted. Abolishing for the fi rst time in its history a constitutional act, the Czech Constitutional Court has crossed the Rubicon – has gone beyond the traditionally understood role of the constitutional jurisdiction which is to protect the constitutionality of law at the level of norms of a lower rank than the constitution. The critical analysis of the judgment and its justifi cation leads the Czech author to the conclusion that abolition of the constitutional act which was adopted in a correct procedure of a qualifi ed majority of votes contradicts the principle that Constitutional Court is legally bound by constitutional acts. Invalidation of a constitutional act would be permissible only if there have been some defects in the adoption procedure. The Czech Constitutional Court had no right to invalidate the constitutional act the content of wich opened the way to pre-term elections which would be universal, equal, direct, conducted by secret ballot and would ensure freedom for competition among political parties. Permissibility of abolishing constitutional acts because of their content by Constitutional Court would need to be explicitly regulated in the constitution. Analogically to the requirement of a qualifi ed majority of votes while adopting a constitutional act, the constitution would need to introduce the same requirement while deciding by judges about abolishing such act.

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State and Nation; Church, Mosque  and Synagogue.  The debate that won’t go away

Church and State – although within a couple of decades this concept seemed to be out of date and pushed somewhere in between typology and taxonomy – it came back suddenly to the current discourse in numerous publications, articles and books clarifying with due weight various models of the co-existence of Church and State. The debate relates to the Christian culture, being on the way out in the secular Europe, and its place in self-refl ection and self-understanding by nations and countries of the Old Continent. The subject of an animated discussion was a possible reference to „the Christian roots” as a part of the cultural heritage of the EU in the preamble of its the would-have-been constitution. At present, similar issues such as displaying crucifi xes in public schools are debated in individual countries – it was decided i.a. by the German Federal Constitutional Court, and is discussed by lawyers in other countries. The above issue was also the subject of the decision held by the Grand Chamber of the European Court of Human Rights after the judgment as of November 2009 in case Lautsi v. Italy regarding the complaint of Soile Lautsi.