In exchange for truth: The polish lustrations and the South African amnesty process

Abstract

Poland and South Africa have each inherited a similar legacy of human rights violations perpetrated by previous authoritarian regimes; they each underwent complicated political transitions and used similar methods of dealing with the remnants of their previous regimes. South Africa granted amnesty from criminal prosecution to perpetrators in exchange for truth about their involvement in the violations of the past. In Poland leading public posts were granted in accordance with the same principle of truth exchange. However, existing frameworks for the study of transitional justice do not allow for immediate comparison of the relative benefits and pitfalls of granting amnesty to criminals vis-à-vis measures to provide public sector employment. This paper extends the existing framework of transitional justice and applies it to the study of the major policy choices of the Polish lustration process (1999–2002) and the South African amnesty process (1996–2000). They encompass components such as the formal scope of truth, the choice of particular procedures, sanctions, transparency and impartiality. The comparison provides us with a more nuanced understanding of the institutional mechanisms that allow for the utilisation of the meaning of truth in complicated transitions from authoritarian regimes.

*The original version of the paper was presented at the joint annual meeting of the Law & Society Association and the Canadian LSA in Vancouver in 2002.

Acknowledgments

The author would like to thank S. Choi, C. Monteiro, A. Fijalkowski and C. Roederer for their comments on the paper.

Notes

*The original version of the paper was presented at the joint annual meeting of the Law & Society Association and the Canadian LSA in Vancouver in 2002.

1. The Czech word lustrace and the Polish lustracja have revived the forgotten English term lustration, which is derived from the Latin term lustro. Lustro means ‘to review, survey, observe, examine’. After 1989, lustration has come to mean the examination of certain groups of people, especially politicians, public officials and judges, to determine whether they have been members or collaborators of the secret police, or held any other positions in the repressive apparatus of a totalitarian regime. Lustration law is a special public employment law that regulates the process of the examination. The law defines who can/must be subjected to the examination, who is in charge of the examination, how the lustration procedure works, and the consequences of an eventual positive lustration. A finding of positive lustration means the examination uncovers evidence that a person worked for the repressive apparatus of the previous regime. On this, see David (2003, pp. 387–388; 2004).

2. The model is only approximate. Various factors and constraints, such as leaders’ beliefs, dominant actors, structural constraints etc., may prevent the new leaders from adopting a comprehensive and robust approach to retribution manifested in punishments and exclusions. Due to these factors, we can only claim that the particular balances of political forces are necessary, though not sufficient, conditions for selection of a particular method of dealing with the past. In addition to this, there is a continuum of regime changes, which, as Huntington acknowledged, makes it difficult to distinguish transformations from transplacements, especially when the former result in a power-sharing pacts. Time is another factor. Prosecutions may not be possible immediately after transition but may become available after, e.g. an electoral defeat of a former ruling party and vice versa, initial prosecutions may generate a response from the old elite, which may effectively curtail them.

3. Economic constraints were a significant limitation in South Africa, where leaders worried that trials would be too lengthy and, consequently, too costly (Asmal, 1997, p. 19; Tutu, 1999, p. 27). International human rights standards and the experiences of other countries also influenced the process, both in South Africa and Poland. The South African TRC adopted many features of the Chilean TRC, as well as of similar commissions established in other Latin American countries. The Polish elite learned not only from the experiences of countries that conducted lustrations, such as the Czech Republic, Germany and Hungary, but also from international criticisms (David, 2004).

4. Although the old South African and Polish regimes differed in their character (the former was a racially-based authoritarian regime democratically legitimised by the white minority, while the latter was a politically-based totalitarian regime), they were comparably brutal. For some data on human rights violations in Poland, see, e.g. Kobos (1999). For data on South Africa, other than the TRC Report, see ‘South Africa Survey’, in Jeffery (1999). However, there were two significant differences, which may have had an impact on their dealing with past policies. First, the racially-based regime facilitated the identification of adversaries, whereas the population of the politically-based totalitarian regime was evenly distributed along the continuum of victim-perpetrator; overcoming the past in a homogeneous society is easier than in a heterogeneous one. Second, unlike Poland, South Africa did not enjoy the political ‘protection’ of any superpower. As a result, the policies of the South African regime were declared a crime against humanity. There was no such resolution condemning the policies of the Polish communist regime.

5. For data about the history of lustrations in the context of Polish transition, see Los (1995, p. 117); Kauba (1999); Misztal (1999, p. 31); and ‘Constitution Watch: Poland’ East European Constitution Review (quarterly country reports).

6. There is one more advantage of the focus model of transitional justice. In choosing mechanisms that aim to overcome past divisions, the new leaders may not only adopt a new model that enhances the Polish lustration with features of the South African amnesty process and vice versa, but also combine both approaches on different levels, making dealing with the past policy more coherent and efficient.

7. The Polish lustration process is legally defined in the Act ‘on the revelation of work or service done in State security organs or of collaboration with them between 1944–1990 by persons carrying out public positions’ (1997). The Lustration Act (the Act has been amended several times). For its characteristic, see, e.g. David (2003); Constitutional Watch (1997–98).

8. Promotion of National Unity and Reconciliation Act (1995), No 1111 (Truth and Reconciliation Act, TRA) Art. 20 (3).

9. Despite rampant mistrust across racial groups, only a minority considers South Africa to be a better place without other racial groups (19.4 per cent of Africans, 19.1 per cent of Whites, 5.7 per cent of Coloreds, and 14.7 per cent of Asians (Gibson and Macdonald, 2001, p. 33, table 8; Gibson, 2004a; 2001, p. 33, table 8; Gibson, 2004b).

10. For example, Announcement of the Chairman of the Court of Appeal in Warsaw from 21 Dec. 1999 on the essence of affidavit submitted by persons holding public offices (Mon. Pol. Nr 41, poz. 641) (‘On the basis of [the Lustration Act] the following is presented to the public knowledge: I. Zbigniew Mlynarczyk, son of Edward, born on Nov. 16, 1930 in Warsaw, resident in Warsaw, has stated that he worked in security organs within the meaning of the [Lustration Act].’).

11. For example, Communication of the Court of Appeal in Warsaw, Department of Lustrations, from 28 Dec.1999 (Mon. Pol. z 2000 r. Nr 1, poz. 9) (‘The Lustration Court of Appeal in Warsaw, Department of Lustrations, informs that in its decision from Sep. 15, 1999, No. V AL. 6/99, confirmed that Wanda Bobek, maiden surname Nalepa, daughter of Andrzej and Helena, born in 13 June 1929 in Niechobrze, submitted a lustration affidavit [that was found to be] not in accordance with truth as required by the [Lustration Act], because she concealed the fact of conscious and secret collaboration with security organs according to the [Lustration Act].’).

12. The process is silent about the status of an informer in respect of his or her position in the repressive apparatus. This might have been sufficient to estimate the scale of collaboration. Collaboration with the repressive apparatus was hierarchical, ranking reliable sources to formal positions higher than those who were, for example, forced to collaborate occasionally (David, 2004).

13. The ‘Instytut Pamieci Narodowej’ launched investigations and prosecutions in several cases of crime committed under the communist regime, which did not bring any substantive results by the end of 2001, <www.ipn.gov.pl>.

14. This concerns sanctions for failing to make a full disclosure, not for failing to qualify for being considered in the process. The inability to meet other requirements, such as political objectives and gross human rights violations, means that the applicant is not eligible for amnesty and that his request should be dismissed without sanctions.

15. The impression that trials are lengthy, costly and unsuccessful, and should therefore be avoided was exacerbated by the need of the Commission to justify its existence (TRC, 1998, Vol. 1, p. 5).

16. ‘The Act provided expressly for the establishment of subcommittees or hearings panels to deal with amnesty applications. This provision enabled the Committee to arrange for various hearings panels to hear different matters simultaneously and so expedite the finalisation of its work. The composition of these panels was not fixed, which resulted in different permutations of Committee members … .This situation created the potential for inconsistencies of approach between the different hearings panels … It is important to point out that the Amnesty Committee was an administrative tribunal, and that no formal system of precedent applied to its activities.’

17. For the proportion of amnesties decided in chambers as opposed to public hearing, see TRC (1998, Vol. 5, pp. 119–124).

18. For the RIP's effort to clarify these misinterpretations, see <www.rzecznikip.gov.pl/actu.html>.

19. The Committee seldom had the benefit of acting in full composition.

20. Jeffery also notes some inconsistencies in its first Report, which resulted in a bias against the IFP.