Abstract
The Polish legal order distinguishes between two types of incomplete regulations: legislative omissions and oversights. Omissions take place when a regulation (required because of the need for the application of the Constitution or for the performance of specific constitutional obligations) is missing in the system of law. Legislative oversights occur when a normative act is in force but, from the constitutional point of view, it is formulated fragmentarily. The former are not subject to Constitutional Tribunal (CT) control, whereas the latter are embraced by its competence. The existence of incomplete regulations is one of the most important yet still unresolved problems faced by the CT. Therefore, it constitutes a permanent source of discrepancies in CT judgments. The article posits that all incomplete regulations – both omissions and oversights – should be controlled by the CT. However, for the CT to do so, the Constitution should be amended, a special control procedure should be established and a new type of judgment should be introduced, which would consist of finding a statute unconstitutional without derogating it from the system of law. The expansion of the CT’s competence corresponds with the function and axiology of the operation of a contemporary constitutional court that should effectively and completely eliminate all violations of the Constitution arising from inactivity by the legislator.
Highlights
The constitutional review of laws in Poland is centralised and is performed by a special court: the Constitutional Tribunal (CT)
One of the major problems faced by that body in the exercise of its judicial functions is the relatively frequent need to evaluate the so-called incomplete regulations, which, from the viewpoint of constitutional norms, are defective; that is, their scope of application is too narrow, they do not take into account constitutionally significant content, nor have they been set at all.[1]
Assuming that the subject of review in the case of legislative omissions should be the determination of the constitutional regulatory duties of the legislator, it becomes obvious that this objective cannot be realised using the constitutional review procedures for statutes that are currently applicable in the Polish legal order
Summary
The constitutional review of laws in Poland is centralised and is performed by a special court: the Constitutional Tribunal (CT). The values underlying the roots of the constitutional justice system are legible and boil down to – given such an approach – removing clashes between the legal norms in force in order to retain the hierarchical compliance of the system of law and the principle of the superiority of the constitution in the catalogue of the sources of law Such a model only allows for accessory and incidental consideration of other CT responsibilities, which include, for example, active advocacy for the protection of fundamental rights or for the protection of the systemic principles of a democratic state of law (e.g., the principle of the rule of law). It is worth pondering whether the -perceived axiological bases of the constitutional justice system, which a limine exclude a constitutional review of legislative omissions, will remain topical and whether they might, given certain boundary conditions, appropriately refer to the CT
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