Threats to civil rights in the Czech Republic
Kohák, Erazim
This is the law: The Communist Party of Czechoslovakia, its leaders and its members, are responsible for the way our land was governed in the years 1948-1989 and in particular for the...
...Philosophically, we continue to honor the lofty ideals of T.G...
...Far more basically, the law sets a precedent of the presumption of guilt, and that is far more serious...
...It really was like that...
...Though worthless as proof, the lists could sow seeds of suspicion— and did...
...Postscript: After I wrote this, I received a copy of a new Higher Education Law in which the Czech Parliament abolished tenure and terminated all tenured contracts...
...But while philosophers can speak of moral absolutes, politicians responsible for the transformation of our society must follow the rule of utility, the greatest amount of good for the greatest number of people...
...it is wise to weigh one's words carefully...
...Similar considerations apply to the law condemning the leaders and members of the Communist party for the tragedy of the past forty years...
...Here we are dealing with two equally practical considerations, the basic contradiction of all de-Nazification...
...Some of the de-Nazification measures were significantly harsher than the much-criticized Czech legislation today...
...After all, you can't make an omelette without breaking eggs...
...As priests and psychiatrists know, there can be no absolution without a confession...
...The bill of particulars that follows that preamble is grim but painfully factual...
...Presumption of innocence is absolutely crucial for a free society, yet here the accused are deemed guilty until they clear their name—and the accusation can be based on something as untrustworthy as the records of the communist secret police reprinted in a tabloid...
...Just like the communist legislation after the 1948 coup, it admits only the righteous, and bids us consign anyone who might be suspect of waywardness to the nethermost regions of hell...
...It does bear the marks of the binary vision so dear to John Foster Dulles and Vyacheslav Molotov, not of Masaryk's democracy or Havel's call for national reconciliation...
...There was nothing but the heritage of Communism—and the urgent need to break its stranglehold on our society...
...Yet it was absolutely urgent to break the Nazi stranglehold on German life...
...There is also the practical problem that the men and women of the old regime lack both the competence and the interest for carrying out the democratic transformation...
...It details the persecution, oppression, violence, murder, torture, arbitrary harassment, crimes, and all the sordid daily realities of an oppressive regime behind the facade of brighter tomorrows...
...In addition to actual collaborators, they included the names of persons whom some policeman or other at one time considered susceptible to cajoling or blackmail...
...Before wounds could start healing, we had to admit that there were wounds...
...It was crucial for very mundane legal reasons, for instance to protect the former political prisoners who would otherwise continue to be simply persons with a criminal record—with all that entails in a very bureaucratic society...
...Here the argument that we are comparing apples and oranges—abstract moral principles with practical politics—does not hold...
...Perhaps the Czechs and the Slovaks and all the survivors of communism will have to outlive it, too, over the course of a generation...
...That, too, is a blunt instrument, and there will be individuals whom it will penalize unjustly...
...That, again, is a problem one could counter with the principle of the greatest good for the greatest number...
...Vaclav Havel's name appeared on them: it seems that when he was first interrogated, years ago, the agent mistook his habitually courteous demeanor for friendliness...
...So did the Germans after the Second World War...
...To some observers, Czechoslovakia seemed about to take its place alongside General Pinochet's Chile...
...Self-righteousness is not to the point...
...If approved, we can receive a term contract of two to five years...
...Havel as president must accept the responsibility for acting—and, as Goethe knew, the one who acts is always guilty...
...It is all too easy to criticize such legislation...
...How do you go about purging a society penetrated at all levels by a very great evil...
...The State Security (StB) were masters of disinformation: their records were not only inaccurate but also intentionally falsified...
...As Americans found out in the 1950s, that is not a very good way to build a free society...
...Americans did not solve that problem after the Civil War: they gradually outlived it...
...Unfortunately, the solution is not only painfully reminiscent of the old regime but also a bit too neat...
...Prior to the passage of that law, a person who served the Soviet-imposed regime as, say, a radio propagandist remained a worthy citizen, the person who repeated news from Radio Free Europe a criminal...
...The communist rule in Czechoslovakia lasted forty-two years...
...Yes, there will be innocent people hurt in the process, we are told, and that is regrettable...
...In practical politics, however, we are realists, recognizing the principle of utility and accepting, however regretfully, the price that entails...
...The task of decommunization was far more daunting: after more than a generation, there were few personalities or institutions left over from the precommunist era to be dusted off and revived...
...Masaryk and of Vdclav Havel in his dissident days: philosophy is the realm of the moral imperative...
...The problem is also the injury to our budding legal system...
...Yet whenever a person can be judged guilty simply by belonging to a particular group— being a Jew, being a Christian, being a communist—building a free society becomes devilishly difficult...
...Resistance to this regime by individuals or groups of citizens, based on a democratic political, religious or moral conviction, manifested by acts of resistance or other activities or knowingly and publicly expressed, whether on the territory of this state or abroad, even if in cooperation with a democratic foreign power, was legitimate, just, morally justified and is worthy of respect...
...But it is a price we must accept for the sake of a far greater good...
...The problem is not simply the injury to the innocent that we might accept as a regrettable but necessary price...
...So the problem with the lustration law is not simply the few—actually, not so few— innocent who get hurt by it...
...So reads the preamble of the "Law Concerning the Illegitimacy of the Communist Regime" passed on July 9, 1993 by the parliament of the Czech Republic, one of the two rump states that emerged from the second dismemberment of Czechoslovakia...
...There is really not much that the West can do to help build a free society in the postcommunist lands except perhaps to remind us that there are two sides to every story . . . but having made that point, to help us keep our priorities straight...
...Except for one consideration: in thirty years, the men and women of the old regime, however abhorrent, will fade from the scene, but the legal principles that we now establish will still be very much with us...
...The task of purging secret police agents from public life is too crucial, too urgent...
...Yet at the time critics took the occupation authorities and the successor regimes to task for not carrying out deNazification radically and swiftly enough...
...It was absolutely urgent to say that the nightmare regime of the past forty years was an illegitimate, contemptible one—and the people who kept faith with the tradition of Masaryk's Czechoslovakia were patriots, not traitors...
...The term "lustration" was resurrected from Roman jurisprudence, where it referred to the practice of banning from public service persons judged guilty of serious misconduct...
...Unfortunately, the secret police lists are rather less than dependable...
...The law ignores all such differences...
...Even if every single one of the persons on the list were truly a villain, presuming them to be so until proven innocent renders a society vulnerable to every rabblerouser— and there is no shortage of those in the postcommunist world...
...WINTER • 1994 • 37 Politics Abroad The problem is not simply that some innocent people will be hurt by it...
...Yes, in the ethereal realm of moral philosophy, civil rights—presumption of innocence, rejection of collective guilt—must be sacred...
...Nor does the argument from social utility and the regrettable need to accept casualties...
...The reaction abroad, including in the European Human Rights Commission, was unambiguous: so much for velvet...
...Yet such criticism, however justified, conveniently ignores the hard realities of the postcommunist world...
...Those of us who wish to continue in our posts will have to reapply—and our suitability as teachers will be judged by commissions appointed by the Ministry of Education...
...That is regrettable...
...Those two needs are both legitimate, both painfully practical— and all too often contradictory...
...Inside the country, the criticism was rather subdued...
...But we need to act...
...The Communist Party of Czechoslovakia was a criminal organization, deserving condemnation, just like other organizations based on its ideology...
...So the law draws the conclusion: The regime based on Communist ideology, which determined the direction of the state and the fate of its citizens in Czechoslovakia from February 25, 1948, to November 17th, 1989, was criminal, illegitimate and deserves condemnation...
...But it was crucial also for national reconciliation...
...It is, in a way, a typically Czech solution— the wolf gets fed but the goat is not harmed...
...The problem is not just that it is morally abhorrent to have murderers and torturers 36 • DISSENT Politics Abroad continue in their posts...
...It lumps together people of vastly different motivations and deeds...
...Or so runs the argument...
...Anyone whose name appeared on the secret police lists of collaborators was to resign unless s/he could present evidence to clear his or her name before the appropriate commission made up of persons whose names did not appear on the list . . . or had been deleted in time...
...With the yellow press and its passionate following ever on the alert to raise the cry of "Soft on Communism...
...Actually, Vaclav Havel's signature also appeared earlier on another bit of legislation that would raise the hackles on the back of a brass human rights activist, the notorious "lustration" law...
...Similarly, there is a world of difference between a person who joined the Communist party during Dubëek's attempt to give socialism a human face and the person who joined it in the 1970s to take advantage of the Soviet occupation...
...We all, they argue, honor the noble ideals of Havel's dissident years...
...The problem with the decommunization laws is not only that, as practical legislation, they deviate from abstract moral ideals, but that their very practical impact is harmful...
...In this case, the law banned for a period of five years all persons guilty of collaboration with the communist secret police— not a particularly harsh or unreasonable measure...
...Far more serious is that the law enshrines in our legal practice the principle of collective guilt...
...Yes, the "lustration" law is a very blunt instrument: a certain number of innocent people will suffer harm along with the many guilty...
...We need to purge our society of those who ruled it for the past forty-two years, but we also need to build the legal foundations of a free society for the next forty-two years and more...
...Promptly leaked to the yellow press, they did not help build an atmosphere of toleration...
...Among the signatures is that of Vaclav Havel, once a human rights activist and a prisoner of conscience, now the president of the Czech Republic...
...It all sounds so wearily familiar, except that this time the authors are genuinely convinced that they are fighting for democracy—or perhaps for democratic capitalism—against totalitarian socialism, the road to serfdom...
...It simply is not a clear-cut issue but a genuine dilemma...
...There is, surely, a difference between a person terrorized and blackmailed into formal cooperation with the police and the eager, voluntary agent...
...So, too, with the law condemning the Communist party as a criminal organization...
...After twelve years of Nazi rule, the entire social structure of Germany had become an interlocking system of various levels of collaboration...
...It may not tell the whole story but it does not exaggerate...
...To its defenders, though, it is again a conflict between the lofty ideals of philosophy and the demands of practical politics...
...After forty-two years of totalitarian rule, we need to purge our society of those who perpetrated and perpetuated that rule—and we need to purge it of the principles on which that rule was based...
...This is the law: The Communist Party of Czechoslovakia, its leaders and its members, are responsible for the way our land was governed in the years 1948-1989 and in particular for the systematic destruction of the traditional values of European civilization, for the conscious violations of human rights and freedoms, for the moral and economic decline accompanied by judicial crimes and terror against dissenters, for substituting a command economy for a market one, for the destruction of the traditional principles of the laws of ownership, for the misuse of education, training, science and culture for political and ideological goals, for the reckless destruction of nature...
...There really is no conflict, since we are dealing with two wholly distinct realms, that of philosophical speculation and that of practical action...
...In the world of practical policy, the injury of the innocent is a regrettable price we must accept the same way a commander must accept casualties...
...its activity was aimed at suppressing human rights and the democratic system...
...The basic parallel is not with America's McCarthy era but with Germany's postwar years and the problem of de-Nazification...
...Had the Allied authorities scrupulously observed all the niceties of law, they could have never penetrated that interlocking system...
...The defenders of the various decommunization laws present it as a tragic conflict between high moral principles and the reality of practical politics...
...We need help more urgently than I realized...
...The Nazis ruled Germany for all of twelve years...
...Havel as dissident could indulge in the luxury of moral imperatives...
...WINTER • 1994 • 35 Politics Abroad On the lists are the names of countless others, not nearly prominent enough to be above suspicion like Havel...
Vol. 41 • January 1994 • No. 1
