Fiasco! Polish Lustration Law – not constitutional

Key parts (at least half) of the articles in the Lustration Law – an issue that has been tearing Poland apart - breaks the Polish Constitution.

That’s the verdict of three days of deliberations and argument by the Constitutional Tribunal.

The government’s flag ship policy is in an ugly mess.

I have just been watching - along with millions of Poles - the verdict by the very formal looking tribunal, read out by two judges, one with a black hat on. This was serious stuff. Their verdicts took one hour 15 minutes to read out.

“Governments are not above the constitution”, said the judge. “If they are then that is the way of a dictatorship…The law should not be retroactive….There must be a guarantee of a legal defense [which there is not, at the moment]…the aim of lustration should not be revenge.”

This is a damning verdict against the government.

Jaroslaw Kaczynski has already pre-empted such a verdict by insinuating that the Constitutional Tribunal is itself full of commies…but then he would, wouldn’t he?

Here are the main bits of the verdict

* The lack of a right to appeal a decision in the Supreme Court is unconstitutional.

* Lustration of journalists is not constitutional.

* Lustration of rectors of universities is not constitutional.

* Lustration of scientists working in private research labs [?] is not constitutional.

* Lustration of heads of publishing houses is not constitutional.

*The public listing of previous secret service operatives is not constitutional.

*The current lack of access to files by anyone lustrated is unconstitutional.

*Lustration of heads of stock listed companies [??] is unconstitutional.

*Lustration of debt collectors [???] is not constitutional.

* Even the layout of the form that people have to fill in saying that they never collaborated with secret services is not constitutional.

* The tribunal also ruled that proof of collaboration with communist authorities must include, not only evidence that the subject agreed to collaborate – as it is in the present law – but that there must be evidence of actual collaboration. So the burden of proof now weighs much more heavily with the accusers: the government.

The Lustration Law is in tatters

The new Lustration Law, which came into force in March, requires hundreds of thousands of people in media, law, etc, to fill in a form declaring they have never collaborated with any secret services which spied on Poles during communist times.

This includes foreigners such as myself, a journalist. This was unconstitutional. I am extremely pissed off.

The law – which is a widening of the net of two previous laws – has created an atmosphere of suspicion, and for many people, fear.

I wasn’t scared, I just thought the whole thing was ludicrous. It’s good to know that the Constitutional Tribunal agrees.

Lustration worse than Stalinism?

At least under Stalinism it was Moscow persecuting Poles. Now it has been Poles persecuting Poles.

That’s an argument I heard on the television today. And you can see what they mean. Instead of trying to unite Poles around some common sentiment – a true solidarity – they pick over the scabs of the past. And the puss weeps out. A fractured society gets more fractured still.

What’s worst of all is that the Institute of National Remembrance is not required by law to share whatever information they have about someone. They make a decision based on what is in old, dusty files from many, many years ago, and that seems to be that. Everything is done behind closed doors. In secret. No transparency whatsoever.

Sounds familiar of another, even darker age?

The best solution is to open the files to everyone - a suggestion that the government has itself made if the verdict went against them - and let’s see what is inside. Then the court of public opinion can decide who is guilty, and who is not.

What a strange country, with a sad past that twitches like a corpse, refusing to recognize that it's over. Finished.