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Politics and Constitutional Courts A Judge’s Personal Perspective
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1725-6739
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EUI LAW; 2008/10
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SAFJAN, Marek, Politics and Constitutional Courts A Judge’s Personal Perspective, EUI LAW, 2008/10 - https://hdl.handle.net/1814/8101
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.