Reviewing the Holocaust Bill: The Polish President and the Constitutional Tribunal

President Duda decided to sign off the controversial law allowing to punish those who publicly accuse the Polish nation and the Polish state of taking part in the Holocaust and in any war crimes. The law will now come into force – a circumstance which is unlikely to calm the international discussion it has generated.

Having decided to sign the law, the President announced that he will file a motion to the Polish Constitutional Tribunal to check its constitutionality. Two issues bother the President: whether the law does not violate the freedom of speech, and whether its wording is sufficiently precise to assure the predictability of its application. There is no time limit for the Tribunal’s verdict, and given the recent significant slow-down in the Tribunal’s operations, the decision may take months rather than weeks

The President’s decision is questionable. If the President has doubts about the constitutionality of the new law, he should have resolved them before signing it, not after. The Polish Constitution stipulates two competencies for the President to file a motion to the Constitutional Tribunal: a preventive constitutional control, as described in art. 122 point 3 of the Constitution, and a general right to question the constitutionality of the law, as described in art. 191.

In the case of the IPN law, the President should have used art. 122 point 3. It was specifically designed for a situation in which the President has doubts as to the constitutionality of a newly enacted bill and wants to consult the Constitutional Tribunal before signing it into law. The article reads as follows:

“The President of the Republic may, before signing a bill, refer it to the Constitutional Tribunal for an adjudication upon its conformity to the Constitution. The President of the Republic shall not refuse to sign a bill which has been judged by the Constitutional Tribunal as conforming to the Constitution ...

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