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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