Trybunał Konstytucyjny de lege ferenda — propozycje nowelizacji ustawy w odpowiedzi na opinię Komisji Weneckiej
The Constitutional Tribunal de lege ferenda — proposals for amendment of the law in response to the opinion of the Venice Commission
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The article presents the proposals for the new statutory defi nition of the position of the Constitutional Tribunal in response to the opinion of the Venice Commission criticizing the so-called “repair law”, adopted in December 2015 to amend the Constitutional Tribunal Act of 25 June 2015. The starting point for comments in the article is a critique of the position of Venice Commission which claims that there is only one universal and always repeatable model of constitutional judiciary. It is obviously wrong, as the extra-parliamentary review of the constitutionality of law it is a heterogeneous and strongly pluralistic institution. It may have either a judicial (as in the USA), a quasi-judicial (Austria) or clearly extrajudicial (France) character. Each particular model of constitutional judiciary is the result of a country’s own experiences, the impact of foreign models of governance and the approach to constitutional review, which treats it as both an institution and a legal-political idea. It is also worth mentioning that disputes over constitutional courts are by no means Poland’s exclusive domain, as they took place (to a larger or smaller extent) everywhere, including in the USA, France, Italy, Hungary and South Korea. Later in the article, the author formulates the proposals concerning the new Constitutional Tribunal Act relating to issues such as the composition of the Tribunal; procedure for the nomination of candidates for judges of the Tribunal; the majority required to elect a judge; procedure for taking oaths from those elected to the post of judge; the adjudicating panels and the majority required to take a decision by the Tribunal; as well as the term of offi ce of the President of the Constitutional Tribunal. The above-mentioned topics do not exhaust the whole potential list of issues, but address those matters that have aroused the most controversy and which became the object of scrutiny from the Venice Commission.
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