In Poland a court has ruled that the governments attempts at de-communisation are unconstitutional.
The law required some 700,000 people, including school directors and board members of public companies, to submit statements declaring any contact they had had with the communist secret services.
The court rejected key aspects of the law including the requirement for journalists to submit declarations. […] “A state based on the rule of law should not fulfill a craving for revenge instead of fulfilling justice,” he said. “Screening must not be used for meting out punishment.”
But surely justice cannot be served by allowing the communist era and above all, the role of the people who made it all possible, to vanish down the memory hole. If people did despicable things during the communist era, why should they escape punishment? I cannot imagine a German court being allowed to stop the process of de-nazification in German, so why tolerate something similar in Poland in the aftermath of communism?
Forgiveness can not come before repentance and a lot of people have yet to repent. I wonder if there are any senior judges who might have an embarrassing file on their communist era activities that they would rather not see the light of day? Just wondering.
It may be considered correct for people to be allowed to hide dealings they had with the secret police (privacy – or whatever). But I am uncomfortable with this judgement being made by unelected judges. These judges are part of the establishment – i.e. part of the same group of people who either were or worked with the Communists and who now use their connections to prosper in private business as well.
It is much like the European Court judgement that Polish taxpayers pay homosexuals money. Whatever the rights and wrongs of the individual case – it is not for unelected judges (who are not even from the country they are judging) to tell local taxpayers who they must pay money to.
If a court is to make political judgements its members must be elected and elected by the people who are going to pay for these judgements. If not elected, then chosen at random (as a jury) from the population of the nation. Indeed I would prefer a jury (for all the faults of juries) as elections are often decided by media image more than consideration of policy (in case that anyone thinks that is an argument for the unelected judges – modern judges are often the same sort of people as media and academia folk).
Establishment judges (appointed by the “great and the good”) have no place in these matters.
This does not just apply to Poland.
Why should (for example) should a conservative State like Alaska have so few conservative judges – just because a selection body (made up of the usual suspects) has a blocking establisment majority?
Most recently the Governer of New York State has decided that he wants the power to appoint all judges (with the advise of an independent, i.e. leftist, commission) because he does not like the people some conservative counties elect (almost needless to say the “Economist” thought that this plan of the Governor, a man who wiped his behind on the basic principles of law when he was a prosecutor, was a jolly good idea).
But if the people are good enough to elect a Governor, why are they not good enough to elect judges?
“Because judges uphold the tradition of the Common Law” – pull the other one it has got bells on, judges have not tended to do that for decades (they are mostly university types now).
As for the Constitution of the United States – I would much rather trust the judgement of a group of people, selected at random, as to what the words meant, than I would trust “educated and experienced judges”.
The notion that the government can force people to sign a declaration that they are not this or that is troubling, and an infringement of privacy.
So the judges, in this case seem to be right.
The government should prosecute and bring to trial anyone suspected of crimes under the communist regime, but making people sign declarations seems wrong. Also useless.
Like: Pleas sign a declaration that you have never beaten up your wife !
There is a libertarian argument that one has a right to privacy even if one does have something to hide; I might post on that later (if anyone is interested). But for the moment I’ll take a simpler tack.
Whether it is justice depends on whether the former communist regime did anything in exchange for that silence. For example: made the transition easier, left witnesses alive, forebore from calling out the army or wrecking the country in a desperate attempt to hang on to power or in prevenge. (As in the motto: “retaliate first”.)
I don’t know whether there is anything one can do to “make up for” the Gulag, or whether you can claim any karma points for doing what morally you should have done anyway; but from a pragmatic point of view it is a fact that you can depose dictators far more easily if those dictators are not anticipating horrible fates the moment their grip on power is loosened.
Arguably, a balance might be struck between discouraging abuses by threatening that justice will catch up with them eventually, and encouraging peaceful reform, by promising that having gone and committed those abuses there is nevertheless a survivable road back.
If you had the power to depose them by force for little cost irrespective of their cooperation with their own downfall so their cooperation was not needed, then one would surely have already done so. I certainly don’t agree with letting them go without knowing that the Poles got something of great value in return, but then I don’t know what quiet deals might have been done at the time of their fall. If we promised them safety and anonymity and then back out on that promise at the first opportunity, well it’s probably no less than they deserve, but it doesn’t reflect so well on us either.
Do promises made to those we consider evil have to be kept?
But if you guarantee dictators need not submit themselves to justice once they are deposed, you give them license to abuse their power however they like, secure in the knowledge that they will never have to pay for their crimes; and for the crimes commited by most of the Communist leaders in Poland, hanging is the only possible justice. Any pseudo-justice that falls short leaves the architects of genocide free to commit their crimes again, as can be seen in the widespread adoption of Chinese-style socialism throughout Europe.
The failure to de-communize Eastern Europe will come back to haunt us, when the US can no longer afford to shore up the economies of all the nations turning to socialism with charity and one-sided trade agreements.
Samizdata should do some homework before it makes such a post.
Start by reading Poland’s High Court Lectures Polish Government On Democracy
Gary, the article you link to is much the same as the one I linked to, so why do I need to do more homework? I understand what the Polish court said, and I am saying that stopping de-communisation is wrong.
And Jacob…
It is far from useless. The object is to make it clear that the former regime was an objectively wicked and evil regime as all communist regimes were and are wicked and evil… it was not just another government, just as Nazi German’s regime was not just another government.
The whole object of the exercise is to vilify and stigmatise communism and anyone who cooperated with it. It simply does not matter if some people will hide their pasts, the important things is to make them feel they have to hide it.
I’m Spanish, so let me give you a mirror image of the Polish situation. At the end of our fascist dictatorship, politicians running the whole spectrum from the ruling “party” to the Communists made a gentlemen’s agreement by which the interests of the Spanish People were put ahead of particular interests. The ruling party politicians and military agreed to give up power voluntarily, and the opposition agreed not to grab it violently. By a miracle of Spanish history it worked, and, I’m sure of this, thousands of lives were spared. It was a proud and unlikely moment in the history of my violent country.
Now, many years later, the party in power wants to open the wounds of the past with a law with the Stalinist name of “The Law of the Historic Memory” (la ley de la memoria histórica). It seems to me that the government wants the right to regulate my memories, to which I say, echoing an American general, nuts! I have honestly forgiven but I will not forget.
I understand individual grievances and the bitterness these bargains cause, but if made for the general good, even if the parties had a signivicant degee of self-interest, they should be respected.
I live in Poland and have been following this, obviously enough.
There are a number of problems with de-communization (lustration) in Poland.
– There’s never been a stable majority in favor of the process. Without broad-based social support (aware of the potential disruptions such a process can bring about) continuing it, will probably bring about more harm than good.
– It depends entirely on unverifiable material (often not even original documents, but copies).
– It doesn’t necessarily distinguish people who were required to meet with intelligence officers (and did not cooperate) and those who actively cooperated.
– It assumes the files kept by the secret police were very accurate (I assume there’s enough bullshit in them to invalidate them as evidence in any legal sense of the term).
– It does not give the accused the right of self-defense (especially in that it doesn’t give the accused access to the ‘evidence’ against them)
– It’s essentially retro-active legislation, making contacts with intelligence services criminal in and of itself (as opposed to verifiable wrongs).
– This is not the Stasi, we’re talking about. Polish internal intelligence forces were without doubt the least competent (least motivated?) in the entire Warsaw Pact.
There’s more, but that’ll do as a start.
Perry,
unlike the East German Stasi, the Polish secret services had enough advance warning to destroy the files on their agents and informers. The proposed law sought to get around the problem by snooping, as well as denying the accused basic legal protections. This cure would have been far worse than the disease.
Paul,
Elected Polish officials had been found guilty of violating the constitutional rights of homosexuals. Are you saying that elected officials are allowed to violate the constitutional rights of minorities, and that would it be wrong for unelected judges to rule that such violations are uniust? Furthermore, are you saying that the majority has the right to effectively repeal the rights of minorities?
Oh, and Perry:
What I wrote above doesn’t mean that Communist agents and informers should get away scot-free:
The Stasi didn’t have the time to shred most of their files, and guilty parties who had been revealed by the unshredded files have been punished and removed from government positions. Now we are going to find out what was written in the shredded files and act on that evidence.
The difference is just that we are going do it based on solid proof, and not signed confessions and threats.
I think that convicting people is not as important as shifting the culture so that communism is something that is a dark secret. That is why I like asking people to declare their past deeds. However I also think people should be able to defend their deeds if they were coerced. However it is right and fitting that a senior clergyman was ‘outed’ as a collaborator and canned. The big problem down the road is when people who collaborated without severe pressures are just allowed to edit that bit out of their lives.
A Russian expat once told me airily “Oh I was an I.T. adviser to the KGB and my dad worked for the NKVD”… and he seemed genuinely surprised when another Russian I.T. guy who had lived in the USA for many years declined to shake his hand later. It is important that communism be abominated. Personally I liked the approach (if not the whole execution) of the ‘Truth’ commissions in South Africa, in which the role of people in making the apartheid regime was held up for scrutiny. I think that is (usually) more important than throwing people in jail.
Perry de Halivand:
Stigmatise? Villify? By a government? On a libertarian blog? I thought that was the place for society, not government.
Really, it seems to me very naieve to think that such evil people as the “communist” (heh, seems like they were just using that as a disguise – common statists at heart/brain/mind) leaders would give a damn would society, government, their pet dogs think about them.
I expect they were quite aware that they should be very selective about who to tell such information about them to.
Trying to find people who have done such crimes is a quite different matter, of course.
Perry:
I think that convicting people is not as important as shifting the culture so that communism is something that is a dark secret.
Exactly. I long for the day when hollywood starts coming out with Schindler’s List-type movies about communist crimes.
One problem is keeping them out of any government, so it is not such a simple issue as leaving it to ‘society’. It is hard to overstate the importance of keeping coercive political power out of the hands of communists and political power means government.
Perry,
So you agree with Jaroslaw Kaczynski when he accuses Bronislaw Geremek of “damaging his fatherland” and “provoking an anti-Polish affair” for refusing to sign a declaration? The language alone is chilling enough, let alone the attempted stigmatization of a genuine hero of the anti-communist revolution.
Sometimes the medicine is worse than the disease. You may remember, for instance, that National Socialism was a response to the threat of communism. As cures go, this is snake-oil, and more likely to lead to a rise in sympathy with the communists than to vilify them.
It is a simple fact of life that US immigration forms do ask if you are a communist, nazi, or anarchist. You can be such things in the US but lying about it is a deportable offense.
Communists should have self-identified, apologized, and moved on with their lives. The communists have not disappeared but are merely hiding. This makes them blackmailable and just by this, a threat.
“As cures go, this is snake-oil, and more likely to lead to a rise in sympathy with the communists than to vilify them.”
I disagree. A democracy is designed to place the most popular people in power, not the strongest or most intelligent. Just as Abraham Lincoln killed slavery, not with legislation but with speeches like the Gettysberg Address, so too can Polish elected officials destroy Communism, not by declaring it illegal but by repudiating it, often and repeatedly.
Ralf.
Alien courts have no right to tell the Polish people what their constitution says.
Of course the European Court often does not even bother to cite the consitution of a nation, it simply cites its interpretation of the vague European Convention on Human Rights (which is written in such a way that it can mean just about anything). Not just Poland but Britain should pull out of both this convention and the international (i.e. U.N.) one, which is full of rights “to” things (the British representatives on the drawing up of the international convention were Stalin’s pals E.H. Carr and Harold Laski).
As for the specific point about people who engage in homosexual acts (or hetrosexual acts for that matter) in relation to “discrimination”.
If I say “I do not want to employ people who have a television at home” (or anything else) that is my affair (nothing to do with any court).
I should not be forced to employ or trade with anyone I do not want to (no matter how crazy my reason is). To “discriminate” is to choose, to demand that “discrimination must be banned” is simply asking for freedom to be eliminated. We may not like how people use their freedom – but to refuse to employ or trade with other people (or whatever grounds) is not an aggression against them.
As for people who engage in homosexual acts working as teachers:
Firstly I am not exactly a fan of government schools. However, it used to be totally normal for such restrictions to be placed on government employees in such jobs. Indeed only a few years ago such a rule was not even needed in Britain, if it was discovered that a teacher engaged in homosexual acts they would not have needed to be asked to resign.
We make think it wrong to insist that someone give up homosexual sex if they want a job as a teacher – but it is nothing to do with us (and certainly nothing to do with the European Court).
bgp, if people who opposed the communists are being persecuted, then that is wrong, but it does not mean the idea of de-communisation itself is wrong.
Perry,
I enthusiastically support such an object, it goes without saying.
I would support a public proclamation or ruling that former communists cannot hold office in the new government or the judiciary.
I would support establishing a screening procedure to eliminate such candidates.
But forcing people to sign declarations seems creepy to me.
Paul:
Poland signed up to the Convention, and it therefore has to stick to it. It can pull out, if it is willing to take the consequences.
By the way, the specific issue at hand was about a march, where homosexual organizations were subjected to regulations and restrictions that no otther organizations undertaking marches had to put up with.
Also, take a look at this
I don’t think there’s any doubt of the opposition of every poster on this site to socialism and its authoritarian version, communism. The question is how best to deal with the threat.
In broad terms, there are two options: authoritarian suppression, or liberal engagement. Old Testament (eye for an eye) vs New Testament (turn the other cheek), if you like, or conservatism vs liberalism. This measure strikes me as being of the former heritage – a descendant of the Bismarckian reaction to the 1848 revolution, the rise of Nazism (shall we ask the former communists to wear pink triangles on their sleeves to complete their public exposure and humiliation?), of Franco and McCarthy.
I understand the motivation to want to expose communists and diminish their role in public life, but this is one of the most illiberal threads I have ever read on an “individualist, classical liberal, libertarian” etc blog. What is needed to tackle socialism is education for all in real economics (not the pseudo-economic post-Keynesian claptrap that passes for economics at most schools and colleges nowadays), and demonstration through action of the benefit and inclusiveness of classical liberal government. If it’s just a choice between one form of authoritarianism and another, you can expect people to keep turning to the superficially “fairer” version.
As for the suggestion that this is about the will of the majority in a democracy, and the desirability of courts enforcing the democratic will, remember what Jefferson had to say about the attitude of a democratic majority to minorities: “Bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression.” Or John Adams: “That the desires of the majority of the people are often for injustice and inhumanity against the minority, is demonstrated by every page of the history of the whole world.” Or Ben Franklin: “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!”
This is why there is a separation of legislature, executive and judiciary. It is right for the judiciary to protect minorities by considering the common-law implications as well as the democratic will of the people. Remember, Hitler and Mussolini came to power through democratic elections, and many of the measures they implemented may well have had the support of the majority of the population for a while. The same goes for Hugo Chavez at the moment.
First of all the idea that modern courts are likely to defend the interests of people like John Adams (i.e. conservative folk) or libertarians is not likely.
True there are cases when they do (such as the recent striking down of the de facto ban on private firearms in Washington D.C.) but to put one’s faith in the courts is unwise – to say the least.
After all the judges tend to be university folk – i.e. A.C.L.U. folk. Remember the A.C.L.U. – founded in the 1920’s by socialists who (in their private letters were full of contempt for the basic principles of the Consistution of the United States whilst outlinning their plan to wrap themselves in the flag as a deception tactic).
If anyone doubts whether the A.C.L.U. is still controlled by people like this, let them look into (for example) the A.C.L.U. position on the 2nd Amendment. Instead of defending the basic civil liberty (indeed the foundation of all other civil liberties) the private owernship of firearms, the A.C.L.U. holds the 2nd Amendment to be a “state militia” right only, and supports “gun control”.
The real agenda of these people (and people like them in Europe) is to undermine traditional society by all means that they have access to. Their objective is to destroy civil society and replace it with a new “progressive” order based on welfare rights.
Family, religion (traditional Western religion as opposed to “progresive” or “social” religion), and cultural tradition are a barrier to their ambitions and they will do anything (anything) to destroy them.
“But I am an athiest, who has no family and who lives in counter culture way” – such a person should still be opposed to the self proclaimed liberals, for they wish to control people’s lives from the cradle to the grave (far more so than any but the worse elements of the past did).
As for marches. Soon the European powers-that-be will move against marches they consider “xenophobic” (for example anti E.U.) or “racist” (or people who use “hate speech”).
So there clearly is no general right to march – only a right for favoured groups. As for the link – sorry Ralf I do not follow links from people I do not know (no offence meant).
Actually I see one point in favour of the powers that be here. After all who uses a road is up to the owner of the road – and the state owns most roads now (although it did not use to – in the days of Turn Pikes and other such).
However, the general idea that the European Court (I know there are several of them) has some deep attachment to civil libertities (so that, for example, it would defend the right of private armed individuals to march up the road to show the most basic civil liberty) is absurd – it supports certain groups (who are in line with its “progessive” agenda) although there may be a publicity stunt (to try and show it supports non progressive folk) from time to time.
Perhaps it is even possible that it will defend the right of “Orangemen” to march down certain streets than they have been marching down for hundreds of years.
After all these Orangemen (however bigoted they them be) march unarmed – so there is not even a “gun control” reason to oppose them.
But I will not hold my breath.
Ralf – why is it right for (say) homosexual activists (not that all such activists are actually homosexual of course – there is Herbert Marcuse style use of homosexuals here, some real homosexauals are actually quite conservative and would not dream of marching down the street trying to be as offensive as possible) to march down a street – but not for “Orangemen” to march down the same street?
After all if one is really concerned about a “Roman Catholic theocracy” one would be very supportive of the rights of “Orangemen”.
But of course there is no real concern about the supposed dangers of Christian theocracy (in Poland or anywhere else).
The “ex” Marxist elite (who control European insitutions as well as some Polish ones) hate traditional Protestants as much as they hate traditional Catholics.
Of course they also hate athiests who do not go along with the “progressive” agenda.
Indeed these high priests of “tolerance” hate everyone apart from themselves.
Perry,
You and the Polish government may have very strong views on Communism. But, do you really think it is the job of any government to “vilify and stigmatise communism and anyone who cooperated with it”? Is that in their constitution, to limit the thoughts of the citizenry?
Second, the Poles were occupied by a foreign power and then made a satellite for many decades. It was a rotten fate. How should they have acted? You seem to think that all aspects of a person’s life should be subordinated to (your) politics. Sometimes it is tough enough just to get by and make whatever sacrifices are necessary to do so.
In a sense, yes I do. De-Nazification was not optional, the Nazi party was banned and its members kept out of office for a time by law. Of course I am aware that such a process can be done ‘wrong’, but I think the opposite is probably more of a risk, which is to say doing nothing and allowing communists and their supporters to escape any consequence or even be forced to admit their roll in decades of repression.
In order to avoid confusion I should make clear that the “Orangemen” are a Protestant organization (indeed organizartions – for there is the “Black” as well, still I am making things too complicated) in Ulster (founded in the 18th century).
Under special regulations they are not allowed to march down certain streets (that they have marched down for centuries) – or rather they have to ask for permission (and do not get it for certain streets – when other groups would get it).
This is because these streets are now inhabited by Roman Catholics and the government (correctly) believes that they would be made angry by the sight of “Orangemen” marching down the street.
Exactly the same as the Polish government concern about homosexual activists marching and making local Roman Catholics angry.
Of course it is possible that the European Court will rule that the “Parades Commission” treat “Orangemen” differently from other groups (which they do). But this would be a bit of a stunt – the European Court (any of the various institutions) does not really care about the liberty of “Orangemen” any more than the people who control such insititutions would care about the liberty of John Adams of Massachusetts (a man of his opinions would not do well in the courts in Massachusetts these days).
They care about groups that can serve their agenda (to create a “progressive society”) – no one else.