Jeszcze raz w sprawie kontroli konstytucyjności całej ustawy — odpowiedź na polemikę Piotra Radziewicza
Once Again on the Constitutionality of the Entire Statute: A Reply to Polemic by Piotr Radziewicz

Summary/Abstract: The article is in response to polemic comments from Piotr Radziewicz on the author’s article aboutthe review of constitutionality of the entire statute (published in “Przegląd Sejmowy” 2012, No. 2). Replying to the objections of Radziewicz, the author clarifies that her original article was based on the assumption of an active role of the constitutional court in the process of hierarchical review of conformity of the normative acts of lower rank to the normative acts of higher rank. The aim of thecited article was not to examine the limits of judicial activism, but, under a tacit assumption of it sadmissibility (or, sometimes, even necessity), to show real issues facing constitutional court judgeswhen considering applications to review the constitutionality of the statute as a whole. In the author’sview, the Constitutional Tribunal — carrying out the review of the entire statute – may make a decision which is fully affirmative or declaring inconsistency with the constitution of only several elementsof the statute, or give a fully negative (denying) judgment. The latter will be admissible onlyin the event that the Tribunal declares unconstitutionality of all the provisions of fundamental natureand indicates the resultant unconstitutionality of all other provisions of the statute. Judgments declaring unconstitutionality of the entire statute will be made very occasionally. The author claims thatcarrying out of the review of constitutionality of the statute as a whole is based on Article 122 (3) for an a priori review and Article 188 (1) for an a posteriori review. In her view, even if a given statutehas been challenged by the President of the Republic under the a priori review procedure and (consequently) unconstitutionality of the provisions integrally associated to the entire statute has beendeclared, the Constitutional Tribunal will be allowed to make use of its competence provided for in Article 122 (4), the second sentence. This, however, cannot be confused with a review of the entirestatute per se.

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