About the Concept of the Secondary Unconstitutionality of Law

The concept of the secondary unconstitutionality of law has been appearing over the years in the adjudication of the Polish courts, adjudication of the Constitutional Tribunal and in legal literature. During this time there have been diversified contexts, in which this notion has been used. Shortly after the Constitution from 1997 entered into force, ‘secondary unconstitutionality’ was used to describe an influence of the new constitution on a so-called pre-constitutional law. Nowadays the tendency of understanding this concept is different. On the one hand, it specifies the law, which is a result of a faulty, repeating unconstitutional regulations, activity of the legislator. On the other hand, this notion is used in the situation, when as the consequence of the entry into force a judgment of the Constitutional Tribunal the new law is also unconstitutional. The aim of this article is to propose a comprehensive definition of the concept of the secondary unconstitutionality. Moreover, it will be presented a draft of the sense of this notion for the practice of establishing and applying the law in Poland.

Judicial Activity of the Constitutional Tribunal and the Secondary Unconstitutionality of Law

In this article, on the one hand the subject of consideration will be the reasons of coming into being the secondary unconstitutionality as a consequence of entry into force a judgment of the Constitutional Tribunal. In the abovementioned context, we should first take into account the principle of accusatorial procedure, which may lead to merely piecemeal elimination of unconstitutionality. In turn, it may effect coming into being more negative consequences than being into force unconstitutional provision. Secondly, it seems that the type of judgment of the Constitutional Tribunal, which is the basis for classifying the norm as secondary unconstitutional, is of considerable importance. On the other hand, possibilities of prevention the secondary unconstitutionality by the Tribunal will be analysed. The question is, whether the Tribunal is able to mitigate the consequences of the principle of accusatorial procedure, particularly whether it is able to modify the scope of the challenged provisions. Regardless of this, judiciary instruments, which enable to form the consequences of the judgment of the Constitutional Tribunal flexibly, seem to be more effective as measures to prevent secondary unconstitutionality. It is worth noting that some of this measures taken by the Tribunal are questioned in the literature.