Verfassungsdurchbrechung

  • Verfassungsdurchbrechung or Informal Constitutional Change. The Polish Experience

    Author: Agnieszka Bień-Kacała
    E-mail: abien@umk.pl
    Institution: Nicolaus Copernicus University in Toruń
    ORCID: https://orcid.org/0000-0002-9559-3130
    Year of publication: 2020
    Source: Show
    Pages: 29-47
    DOI Address: https://doi.org/10.15804/ppk.2020.05.02
    PDF: ppk/57/ppk5702.pdf

    The author assesses constitutional practice after 2015 in Poland in the context of constitutional changes, and indicates that no formal change has occurred. Instead, she is considering qualifying the actions of the ruling majority as Verfassungsdurchbrechung, an institution known from the political practice of the Weimar Republic. However, she concludes that an informal constitutional change is a more appropriate institution to describe the political reality in Poland. The author shows practices that can be qualified in this way (reinterpretation and interpretation of the text of the constitution by the CT, creation of competences unknown to the constitution by the legislature and the executive power, emptying of the text of the constitution). Furthermore, these practices also step beyond a simple violation of the constitution, as they aim to build a new system (illiberal constitutionalism).

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