The author analysed and translated the judgment of the Constitutional Court of South Africa of 17 July 2024 in the case Chief Avhatendi Ratshibvumo Rambuda and Others v Tshibvumo Royal Family and Others, case no. CCT 255/22. In this judgment, the Tribunal made important findings, primarily regarding what constitutes the royal family under the Limpopo Traditional Leadership Act and ruled on whether two royal families can exist within the same traditional community. This case highlights the interesting relationship between customary law in South Africa and statutory law, as well as the influence of the Constitutional Court on the functioning and development of customary law.
The paper provides a comparative analysis of restrictions on freedom of assembly and freedom of movement in the Visegrád Group countries during the COVID-19 pandemic. It examines how authorities in Czechia, Hungary, Poland, and Slovakia structured emergency governance and how domestic courts responded to the measures adopted. Although all four states imposed far-reaching restrictions, the legal pathways through which they were introduced and the intensity of judicial review varied significantly, largely depending on whether constitutionally regulated emergency regimes were formally activated. In Czechia, despite the declaration of a state of emergency, several restrictions were adopted under ordinary legislation, raising legal doubts and prompting judicial scrutiny. In Hungary, a prolonged state of danger enabled governance by decree, while the Constitutional Court largely deferred, formulating mainly abstract requirements. Poland relied on the ordinary legal regime, but as many restrictions were introduced through executive regulations without sufficiently precise statutory authorisation, courts refused to apply them. Slovakia declared a state of emergency within a dedicated constitutional framework; while the Constitutional Court deferred to the government’s risk assessment, it required precise statutory authorisation and proportionality for intrusive quarantine and movement restrictions. The analysis shows that effective protection of fundamental freedoms during a public health crisis depended not only on proportionality review but also on legal form, statutory clarity, and the practical accessibility of judicial review.
The article is a polemic with a text by Paweł Boike published in “Przegląd Konstytucyjny” (2025, no 4), in which Boike proposes moderate intentionalism as the interpretive method of choice for selected provisions of the Polish Constitution (Articles 18, 38, and 139). The author of the polemic raises two principal objections to this methodological approach. First, she questions the appropriateness of treating historical interpretation as the first-choice method for constitutional interpretation, particularly in the case of a constitution adopted during a period of axiological transition and before Poland’s integration into the European legal order. She argues that the constitution – containing directional norms, delegating further regulation to ordinary legislation, and exerting differentiated effects on the legal system – is precisely the type of act in which the provisions being interpreted are inherently embedded in a broader, evolving normative context, which substantially weakens the persuasive force of intentionalist arguments. Second, the author criticises the omission of significant materials from the proceedings of the Constitutional Commission in the interpretation of Article 18 of the Constitution, including statements indicating awareness of the distinction between a constitutional prohibition of same-sex unions and the exclusive character of constitutional-level regulation. The polemic emphasises the need to distinguish between exclusive and open-ended constitutionalisation and cautions against the superficial application of the historical method without exhausting available primary sources.
The question of the president’s right to pardon himself is one of the most significant disputes in American constitutional law doctrine, which has yet to be finally resolved. The purpose of this article is to analyze the presidential right of pardon in the United States system and to answer the question of whether the US president has the right to pardon himself. The author analyzes the arguments of both supporters of the theory that the president can pardon himself and opponents of this claim. The arguments of both sides of the dispute are supported by academic literature and the jurisprudence of the US Supreme Court. The author summarizes the ongoing dispute and explains why the arguments of the proponents of the theory of the presidential right to pardon himself are more accurate.
The Slovak Republic is the country in Central Europe with the largest number of citizens belonging to national minorities. Their legal status is regulated by the Constitution, universal and regional international agreements, and over twenty laws. This article discusses the constitutional regulation of these minorities. The Constitution distinguishes between national minorities and ethnic groups, but does not define these terms or list any of them. Some of them are listed in various laws. The Constitution indicates that the state is not nationally homogeneous and that the Slovak nation is the fundamental part of society, which does not mean, however, that this nation plays a more important role in the state. Everyone has the right to freely decide on their national affiliation, and any influence on this decision and any forms of pressure aimed at denationalisation are prohibited. National minorities and ethnic groups are guaranteed, in particular, the right to develop their own culture together with other members of the minority or group, the right to disseminate and receive information in their native language, to organise themselves in national associations, and to establish and maintain educational and cultural institutions. In Slovakia, Slovak is the official language, but the law also provides for education in minority languages, their use in official matters, and their use in the naming of geographical features. The Constitution also guarantees minorities the right to participate in the resolution of matters concerning them. Ethnic problems in Slovakia therefore stem not so much from legal regulations, which meet contemporary global standards, but from the inappropriate policies of state and local authorities.
The article concerns the principle of good faith, which is enshrined in private law and international law, and has also become an element of constitutional law today. Constitutional good faith is understood as honesty, loyalty and sincere respect for the law, which together build trust between citizens and the state. In various legal systems, it performs protective, interpretative and stabilising functions – it protects the individual from the arbitrariness of power, but also imposes on citizens a duty of loyalty towards others and the state. The most comprehensive solutions have been developed in Switzerland, where good faith is combined with the principle of the rule of law and cooperation between the federation and the cantons. The constitutional regulations of Romania and Moldova emphasise the exercise of rights and freedoms in good faith, in Portugal – ethical standards of administration, and in Colombia – the presumption of honesty of individuals in their relations with the state. The universality of this category is confirmed by examples from New Zealand, Thailand, Mongolia and Zimbabwe. The constitutionalisation of good faith indicates that it is becoming a systemic principle of modern democracies, strengthening trust, institutional loyalty and legal culture.
The reconstruction of an independent Constitutional Tribunal is an essential element of remedial measures aimed at repairing the damage to the political system caused by the United Right camp and restoring the primacy of the Constitution. I consider it crucial that Poland has a fully-fledged and independent constitutional court. I am deeply convinced that remedial measures – undertaken in very difficult circumstances – must be based on clear principles presented to political actors and, above all, to the public. The Constitutional Tribunal is not a value in itself, the legitimacy of an institution does not derive from the mere fact of its existence. Hence the need to define a doctrine for the reconstruction of an independent Constitutional Tribunal, one that sets out arguments in favor of the legitimacy of the constitutional court, the usefulness of this institution for the state and its citizens, defines the legal basis for its actions, confirms respect for the principle of legality, and presents a plan for adapting the constitutional court to the requirements of the modern world. The reform program, together with drafts of relevant laws, should correspond to the assumptions of this doctrine. The text in the reader’s hands is an attempt to define its basic assumptions.
The dispute over the crisis of the Constitutional Tribunal that has been ongoing in Poland in recent years is, in essence, a dispute over the role this organ of judicial authority plays in the state. The key question is whether a democratic state can function without constitutional review independent of political power, and whether such a review of the constitutionality of statutory laws is actually possible. The restoration of constitutional justice requires a genuine restoration of the rule of law, meaning the primacy of law over politics. Meeting this requirement in its entirety or over a short period of time is a rather unlikely prospect. And yet, the constitutional judiciary’s lost constitutional identity can indeed be restored – by way of steadfastly sticking to the provisions of the Constitution, by grounding legislation in dialogue and compromise, and finally by equating politics with reasonable concern for the common good. In this process, however, a situation must be avoided where constitutional identity is accorded to a Tribunal appointed by a particular parliamentary majority, while being denied to a Tribunal appointed by another parliamentary majority. It is the principle of government by law – where the law is respected by those in power themselves – that continues to determine the identity of a democratic state ruled by law.
The article examines the feasibility of introducing a mechanism of mandatory constitutional review of legislation in Poland as a response to the constitutional crisis that has persisted since 2015. It presents examples of violations of the rule of law through instrumental legislative changes affecting the Constitutional Tribunal, the National Council of the Judiciary, and ordinary courts. The author proposes the adoption of a model similar to the French system of preventive constitutional review of organic laws, conducted by the Constitutional Council, as a safeguard for maintaining the separation of powers and protecting the foundations of the constitutional order. Possible legislative solutions are identified, with a focus on the scope and procedural framework of the proposed reform, as well as the role the Constitutional Tribunal would assume following the restoration of its independence.
In the face of the ongoing constitutional crisis in Poland, courts have increasingly resorted to the dispersed review of the constitutionality of statutes, thereby bypassing the Constitutional Tribunal in this regard. The purpose of this study is to analyse the concept of dispersed constitutional review and to determine its relationship with other legal categories, in particular the principle of the direct application of the Constitution and the conflict of laws rules operating within the legal system. A distinct, though closely related, issue concerns the examination of the systemic significance of dispersed review and the identification of its fundamental role within the structure of the contemporary system of government.
The central question awaiting an answer in the current constitutional debate concerns the consequences flowing from the principle of the supremacy of the Constitution over ordinary legislation, and the manner in which the principle of the rule of law, as guaranteed by the Constitution, should be understood. A proper interpretation and application of these principles could broaden the legal and institutional space within which the measures necessary for the restoration of the rule of law may be introduced. Such an approach is supported both by the case law of Polish courts, including the judgments of the Constitutional Tribunal delivered before 2016, and by the jurisprudence of the European courts in Strasbourg and Luxembourg. In the present context, marked by a specific blockage of legislative change resulting from the presidential veto, the most important role in this process must be played by the judiciary. The courts are empowered not to apply national provisions that are incompatible with European law, which enjoys priority of application over domestic law. An essential condition for ensuring the restoration of the rule of law is the willingness of judges to adopt a functional and, where necessary, activist interpretation of fundamental constitutional values and principles.
This study discusses the rulings of the Federal Constitutional Court regarding the convening of a session of the Bundestag on 13 and 18 March 2025 to consider a draft amendment to the Basic Law. The crux of the issue before the German constitutional court was whether, following elections, the previous Bundestag could convene to consider and adopt constitutional amendments. After a brief outline of the factual situation and the regulations contained in the Basic Law, the text presents the theses contained in the Federal Constitutional Court’s rulings of 13 March 2025, along with commentary and some analogies to the situation in Poland.
The purpose of this article is to analyse and evaluate two conceptually advanced institutional proposals intended to address constitutional disputes within the European Union concerning ultra vires review and the Union’s obligation to respect the identity of the Member States (identity review). The proposals have been catalysed by and formulated after the judgment of the German Federal Constitutional Court in the PSPP case. They consist of the creation of a Mixed Chamber of the CJEU and the introduction of a reverse preliminary ruling. By examining their genesis, institutional design, and theoretical premises, the author indicates the extent to which they could establish predictable frameworks for resolving competence and identity disputes without undermining the foundations of the EU legal order or the constitutional roles of national courts, and further identifies their advantages and shortcomings. The article presents the theoretical background of both proposals together with their doctrinal justification; it assesses the potential benefits, risks, and limitations arising from their implementation; and it analyses their possible impact on the position of the Constitutional Tribunal and constitutional courts within the EU legal system. In conclusion, the author argues that the proposed solutions may serve as stabilising measures to some extent, capable of minimising systemic tensions and rationalising judicial dialogue on matters of competence and identity protection, while also indicating the extent to which they may ultimately turn out deficient.
The reconstruction of an independent Constitutional Tribunal is an essential element of remedial measures aimed at repairing the damage to the political system caused by the United Right camp and restoring the primacy of the Constitution. I consider it crucial that Poland has a fully-fledged and independent constitutional court. I am deeply convinced that remedial measures – undertaken in very difficult circumstances – must be based on clear principles presented to political actors and, above all, to the public. The Constitutional Tribunal is not a value in itself, the legitimacy of an institution does not derive from the mere fact of its existence. Hence the need to define a doctrine for the reconstruction of an independent Constitutional Tribunal, one that sets out arguments in favor of the legitimacy of the constitutional court, the usefulness of this institution for the state and its citizens, defines the legal basis for its actions, confirms respect for the principle of legality, and presents a plan for adapting the constitutional court to the requirements of the modern world. The reform program, together with drafts of relevant laws, should correspond to the assumptions of this doctrine. The text in the reader’s hands is an attempt to define its basic assumptions.
The article examines the legal significance of the Resolution of the Sejm of 6 March 2024 on remedying the effects of the constitutional crisis of 2015–2023 in the context of the Constitutional Tribunal. The author argues that the Resolution produced legal effects only to the extent that it fell within the Sejm’s actual constitutional competences. In particular, it validly annulled ten Sejm resolutions from 2015–2018 – including those providing the legal basis for the appointment of the so-called “substitute judges” to the Constitutional Tribunal – as the Sejm was empowered to do so by Article 190(4) of the Constitution and Poland’s obligations under the European Convention on Human Rights, in execution of judgments of the Constitutional Tribunal and the European Court of Human Rights. However, the remaining provisions of the Resolution – including statements that the Tribunal is incapable of performing its constitutional functions and that its rulings are legally ineffective – lack legal force, as they exceed the Sejm’s competences. The author concludes that resolving the constitutional crisis requires comprehensive legislation, possibly including constitutional amendments, and that the use of purely political instruments risks replacing one constitutional crisis with another.
It is frequently asserted that, over the past decade, the Polish Constitutional Tribunal has lost its authority and that restoring it should be the primary objective of any new arrangements concerning constitutional adjudication. From the claim that the Tribunal’s authority has collapsed, far-reaching legal consequences are sometimes inferred, most notably the wholesale denial of its legal existence or of the binding force of its judgments. This article seeks to determine which dimensions of the Tribunal’s alleged loss of authority are invoked in public debate, whether they provide a sound basis for such assessments, and whether any of them may be legally relevant in the strict sense – that is, capable of justifying a refusal to comply with the Tribunal’s rulings. The lines of argument most commonly advanced in the constitutional debate concern the erosion of public trust, the decline in institutional efficiency, and the Tribunal’s delegitimisation within domestic institutions and in the international arena. As it turns out, however, these considerations do little to clarify the legal dimension and legal consequences of a supposed collapse of authority. The most substantial basis for such conclusions appears to lie in the unequivocally negative assessment of the Tribunal within the international arena, particularly by expert bodies and judicial institutions. Even here, however, a precise reconstruction of the deficiencies attributed to the Tribunal by these actors is indispensable. Nothing is more damaging to the quality of legal argument than blurring the boundaries beyond which political reasoning begins; equally, nothing strengthens the persuasiveness of legal analysis more than reliance on widely accepted constitutional concepts and the rigorous observance of established principles of legal reasoning.
