Poland Has a Way Out of Holocaust Law

(Bloomberg View) -- Poland badly needs a way to get rid of its new “memory law” that makes it a crime for anyone anywhere in the world to ascribe Holocaust atrocities to the Polish state or nation. A solution may be emerging: Poland's constitutional tribunal could strike down the law as a violation of freedom of expression under the country's constitution and the European Convention on Human Rights.

That result would kill two birds with one stone. It would allow the right-wing PiS (“Law and Justice”) government to save face while escaping the global criticism it's gotten as a result of the law. At the same time, it could begin the process of rehabilitating the independence of the Polish courts, which has been badly undercut over the past two and a half years.

The prospect of a solution appears in an intriguing action taken by Poland's prosecutor general last week. In a document filed with the constitutional court, the prosecutor took the position that the law might be partly unconstitutional. That could certainly be read as a signal to the constitutional court that the law as a whole could be struck down.

To be sure, the prosecutor did not say that the law violated freedom of expression. That would have been particularly rich, because the law was originally promulgated from within the ministry of justice -- and the prosecutor general is in fact the minister of justice.

Rather than declaring that his own law infringed on freedom of expression, the prosecutor took the position that it conflicted with more general rule-of-law values, in so far as the law purports to criminalize conduct that takes place entirely outside of Poland.

Nevertheless, the law does violate freedom of expression. Article 54 of the Polish Constitution guarantees “the freedom to express opinions, to acquire and to disseminate information.” Article 10 of the European human rights treaty, to which Poland is a signatory, similarly protects free expression.

At the most basic level, the memory law violates the right to express one's opinion about Polish responsibility for Nazi war crimes. The law literally outlaws a particular moral opinion or point of view.

And as the president of Poland pointed out in asking the constitutional court to review the law, the statute also creates a chilling effect on speech, because its provisions are extremely vague. It does not, for example, define the “Polish nation.”

There are a variety of other legal and constitutional problems with the law, usefully reviewed in this short English-language essay in the Italian journal DPCE. The court could rely on any of them to strike down the law.

But the most honest and direct route would be to strike down the law for what it actually is: an attempt to repress public discourse about matters of history and morality.

For the constitutional court to reject the law on these grounds, rather than a more narrow form of reasoning, would arguably have a further benefit: beginning the process of restoring credibility to that body.

The crisis arguably began in October 2015, when the outgoing government appointed five new judges. On taking power in December 2015, PiS appointed five new judges to replace the earlier five, which it said had been appointed unconstitutionally. Then PiS changed the tribunal's rules to require a two-thirds vote to strike down laws and participation of 13 of the 15 judges on the court to do so. That effectively gave the PiS appointees veto power over any judgment of unconstitutionality.

European countries and pan-European institutions protested vociferously. Not only has PiS not relented; it's taken many further steps to infringe on the independence of Poland's judiciary.

If the constitutional tribunal strikes down the memory law, cynics will still be able to say that it did so only with the blessing of PiS itself. That criticism might well be valid -- especially if the court relies on technical grounds rather than acknowledging that the law violates freedom of expression.

Nevertheless, striking down the law directly as a limitation on free expression would go some distance to showing the world that the constitutional tribunal is still capable of standing up for basic rights -- and thereby rebuking the PiS government.

The short-term cost to PiS of having its law overturned would certainly be outweighed by the long-term value of beginning to restore legitimacy to the constitutional tribunal.

In this case, then, constitutional and human rights principles overlap with PiS's political needs. A good constitutional tribunal decision on the memory law won't be enough on its own to put Poland back on track with respect to judicial independence and the rule of law. But it would be a very good start.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net.

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