Deference to the Public Administration in Judicial Review: A Polish Perspective

While in the countries with mature democracy the tools of strengthening the competence of administration to the benefit of the individuals were created, Polish administrative courts were to hold back the administrative power, used to the detriment of the claimants. The basic role of judicial review, since its reactivation in 1980 in Poland, was to guard the individuals’ rights and freedoms by setting the boundaries of administrative interference in this sphere. Those conditions make the comparison between the administrative justice in Poland and in the grounded democracies complicated. That is mainly why in Poland, according to the authors, applying the doctrine of deference developed in the states free from the experience of the totalitarian system, is hardly possible. Another reasons why—in the authors’ opinion—the idea of deference is not suitable here are the local characteristics of judicial review together with the current tension between the constitutional powers. The article exposes a point of view according to which the deference concept is not (yet) adequate to the Polish law and political system. The authors came to the conclusion that the usage of the deference doctrine creates the risk of manipulating it to legitimize some actions of the authorities that understand democracy in a special way suitable for the dictatorship of the majority. In this context, everything can be justified by referring to the “sovereign will”, neglecting the checks and balances mechanisms well-known in the western culture.