An empirical analysis of constitutional review voting in the polish constitutional tribunal, 2003–2014

For judicial preferences, see Posner (1993, 2005, 2010, 2011). For a defence of the formalist view, criticizing the empirical studies showing the presence of political influence in judicial decision-making, see Edwards and Livermore (2009). For other views, see Robertson (1998, 2010).

For discussion and references therein, see Epstein and Knight (1998), Segal and Spaeth (2002), and Spiller et al. (2007).

On Canada, see Tate and Sittiwong (1989), Alarie and Green (2008), Green and Alarie (2009), and Songer et al. (2011). On Germany, see Schneider (2005) and Vanberg (2005). On Italy, see Breton and Fraschini (2003), Fiorino et al. (2007, 2015), Padovano (2009), Pellegrina and Garoupa (2013), and Garoupa and Grembi (2015). On Portugal, see Amaral Garcia et al. (2009). On France, see Franck (2009, 2010). On Spain, see Garoupa et al. (2013). On Israel, see Shachar et al. (1997) and Eisenberg et al. (2012). On Australia, see Smyth and Narayan (2004).

On Japan, see Ramseyer and Rasmusen (2003), and in particular on the Japanese Supreme Court, see Ramseyer and Rasmusen (2006). On Taiwan, see Ginsburg (2003) and Garoupa et al. (2011a, b). On the Phillipines, see Escresa et al. (2012).

On Argentina, see Chávez (2004) and Helmke (2004) as well as Iaryczower et al. (2002, 2006). On Chile, see Hilbink (2007) and Carroll and Tiede (2011). On Brazil, see Arlota and Garoupa (2014). More generally, see Kapiszewski and Taylor (2008).

It is important to stress that in 1992 the interim Little Constitution was promulgated in Poland. This Constitution did not repeal all of the rules of the Stalinist Constitution of 1952. It aimed, however, at reducing institutional uncertainty through amending and facilitating the main functional and organizational features of the state. The most important was to bring order and regularity to the confused relations between the parliament, the government and the President. Among the hottest issues, the interim Constitution was supposed to remove dual authority over foreign affairs and security matters as well as clarify the process for appointing the Prime Minister (see, for instance, Elster 1993).

For instance, the constitutional drafters introduced an innovative fiscal rule limiting the country’s debt ratio to 60 % of GDP.

Although the Referendum Act of 1995 required at least 50 % turnout for a referendum to have a biding effect, the Constitutional Act of 1992 instructed that the new constitution should be adopted in a referendum regardless of the turnout rate. The common belief in the early 1990s was that the turnout in the constitutional referendum would never achieve 50 %. Therefore, the establishment of a 50 % turnout threshold put the constitutional project at high risk (see, for instance, Supreme Court Resolution from July 15, 1997).

Although according to the law, the unconstitutional statutes or articles cease to have any effective binding legal status, it is important to note that on many occasions the legislative bodies are obliged to further enforce specific TK judgments. It is particularly the case when the TK derogates the law and creates a legal vacuum. In years 2005–2008, approximately 70 % (112/160) of judgments posed some enforcement obligation on the legislative bodies. However, 47 % (52/112) of those judgments were not enforced by the relevant institutions (see Radzewicz 2010).

The Presidium of the Sejm comprises the President and Deputy President of the Sejm. The main competence of the Presidium of the Sejm includes the setting of the Sejm’s work agenda, organizing cooperation between the committees of the Sejm and coordinating their activities.

Removal from the office of the judge can be only a consequence of the disciplinary punishment by the TK. A judge may be subject to the disciplinary punishment for an infringement of provisions of the law, for act which is inconsistent with the dignity of his office or for unethical conduct which might undermine judge’s confidence (see articles 8-10 of the Constitutional Tribunal Act of 1997).

Retention of a judicial status entitles the retiring judge to a “pension” irrespective of his/her age.

The rapporteur casts an important role in the adjudicating process since s/he is in charge of drafting the judgment together with its reasoning (see § 42 of the Constitutional Court Statute of 2006).

The TK adjudicates in three types of benches, i.e. in a full bench (at least 9 judges), five-judges bench and three-judges bench. The size of the adjudicating bench depends on the nature of the case and its complexity (see article 25 of the Constitutional Court Act of 1997).

In 2012, 33 % of the Court decisions included at least one dissenting opinion. This is, however, the record year. In previous years, the proportion of judgments with dissenting opinions is variable. It goes from 3 % in 2006 to 29 % in 2011 (see Trybunał 2013).

An abstract review of law is not the only judicial review performed in the TK. Similarly to the U.S model of judicial review, any court in Poland can initiate concrete review. This occurs in the situation where the court has doubts about the constitutionality of legal provision which serves as a basis for the judgment (see articles 31-44 of the Constitutional Court Act of 1997).

The political dominance is not the only weakness of the appointment process to the TK. There are several other problems. First, the short period of time given by the law to appoint the judges to the TK (30 days) reduces the transparency of the process and practically eliminates the possibility for public debate on the candidates. Second, the information about the candidates’ merits given by the nominating bodies is very limited. It is often the case that the press investigation reveals some disgraceful facts about the candidates to the TK. Thirdly, the judicial and academic circles are not invited to recommend the candidates to the TK or to examine the merits of the candidates. Fourth, there is no fixed procedure for electing the judges. Judges are appointed individually but on several occasions they were elected en banc (voting on all candidates together) (see Bojarski 2010).

In the current parliamentary setting there are three other political parties present in the Sejm, i.e. Polish People’s Party (Polskie Stronnictwo Ludowe, hereinafter PSL), Palikot’s Movement (Twój Ruch, hereinafter TR) and United Poland (Solidarna Polska, hereinafter SP). PSL is currently the coalition partner of the PO (centrist party). In years 1993–1997 and 2001–2003, however, this party was the coalition junior partner of the left-wing governments. TP and SP, in turn, are relatively new parties on the Polish political scene.

Abstract judicial reviews of statutes are classified by the TK under two letter codes, i.e. K (ex post abstract review) and Kp (ex ante abstract review). Due to the fact that the availability of the documentation on the TK website is limited, it was impossible to identify petitioners in six cases, i.e. K 12/02, K 19/02, K 34/03, K 24/04, K 38/04 and K 17/12. Consequently, those cases are not part of the dataset.

It is important to note that the decisions in the adjudicating benches are taken by a simple majority. Judges vote secretly and if they do not agree with the final judgment, they are allowed to present the dissenting opinions. In the view of this paper, the absence of the dissenting opinion indicates that a judge, even if initially s/he voted differently than the majority, eventually s/he agrees with the decision of the adjudicating bench.