Chronos and Kairos of Constitutionalism – The Polish case

Τοῖς πᾶσι χρόνος καὶ καιρὸς τῷ παντὶ πράγματι ὑπὸ τὸν οὐρανόν.[1] This Septuagint translation of a verse from the book of Ecclesiastes points to a fundamental distinction regarding the transience – the distinction between chronos (time) and kairos (a right moment). Time is everlasting and consists of singular kairoi. Kairos, being its constitutive part, should not defy the structure of time. This distinction bares on the way in which we should understand any change of a constitution that claims to belong to free and equal citizens.

This is not only a purely scholarly debate. On March 9th 2016, during the proceeding on the so-called ‘reparative’ December act on the Constitutional Tribunal, the Tribunal attempted to determine whether it could assess constitutionality of constitutional amendments.[2] Relying on the Ackermanian idea of the so-called ‘constitutional moments’, the Tribunal sought to determine whether there exist principles or values so fundamental as to be immutable even by a constitutional majority – such as the principle of human dignity or the principle of separation of powers. Unfortunately, no conclusive answers were given.

I would like to pick up on this ambitious and difficult theoretical question and provide a plausible solution to the conundrum that the Constitutional Tribunal identified and subsequently failed to solve. I am interested in answering the question of whether the Tribunal can perform a review of constitutional amendments. The question of how (procedurally) and when (politically) such a review should be performed would require a lengthier analysis.

At first glance, textual analysis of the article 235 of Polish Constitution does not enshrine substantive limitations of constitutional amendment. Only procedural limits are established therein ...

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