The Emergence of Judicial Review in Poland

Abstract

In addition to the promulgation of new constitutional provisions, central to the development of constitutionalism in Poland, and to the success of the transition from communist constitutional practice to a culture of normative constitutionalism, has been the emergence of the doctrine and practice of judicial review. In communist theory the constitution did not present a constraint on the state, nor was it a meaningful source of individual rights. But in the spring of 1982, following the declaration of martial law, the communist regime announced its intention to create an ‘independent’ judicial body to review the constitutionality of all legal acts. The Constitutional Tribunal, entrusted with the responsibility to ‘adjudicate on the conformity of laws with the Constitution’, was a unique creation in the Soviet bloc and a radical departure from orthodox communist constitutional practice. With the creation of the Tribunal, communist Poland seemed to move one step closer toward joining those European nations that since World War II have empowered judicial bodies to enforce their national constitutions as the fundamental law of the state.