Quis Custodiet Ipsos Custodes – Interpretative and Scope Judgments as an Activist Substitute for a Universally Binding Interpretation of the Polish Constitutional Tribunal

Abstract

The Constitutional Tribunal in Poland has a special position compared to other constitutional courts of this type. Although it is sometimes compared to a classic constitutional court that can interpret the provisions of the Constitution in a binding manner, it has lost this type of authority in the course of institutional evolution. Since 1997, the Constitutional Tribunal has lost the right to issue generally binding interpretations of law. However, as a politically active court, it has assumed that the specific form of judgment, interpretative judgments, will be used to de facto restore the competence taken away under the current Constitution. Judicial activism has become the reason for the politicisation of the Tribunal and its inclusion in the dispute over the judiciary in Poland. The article analyses the impact of activism on the constitutional crisis in Poland. It puts forward postulates concerning the so-called constitutional reset and the implementation of the idea of the enduring Constitution and the inactive court.