Politics—and Constitutional Courts
(Judge’s Personal Perspective)
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Publication date: 2009-03-30
Polish Sociological Review 2009;165(1):3-26
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ABSTRACT
The paper deals with different forms of political impact on the constitutional justice. The main
subject of presentation is the analysis of recent Polish experiences which can help to identify better the
threats to the independence of the constitutional justice in democratic space. The first part takes the effort
to describe the specific phenomenon of political pressure exerted on the constitutional justice through
indirect influence (so called “political mobbing”). The argumentation developed in the paper proves that
even such indirect and sometimes subtle interferences from the political elite create the very danger for
accountability of constitutional justice and have a negative impact on constitutional awareness of the
society. The second part deals with typical reasons (ongoing in all constitutional courts) of inevitable
“politization” of the constitutional review, first of all the political procedure of appointments of the judges
and the political nature of constitutional cases. The thesis is defended through the analysis of Polish
experiences which indicate that the presence of politics, inherent element of the constitutional justice,
cannot be automatically identified with lack of the objective and independent judgments issued by the
judges. Internal independence and formal external guarantees of it allow us to avoid the pathological
impact of politics. Two factors have a particularly great impact on the attitudes of judges and support
them in fulfilling their responsibility: the continuity of jurisprudential lines, accumulation of constitutional
experience (acquis constitutionnel) and the permanent dialogue between the constitutional courts and the
international courts or among the constitutional courts in the European space.