Abstract
This article shows how dissidents in the latter half of the 1970s “played the law” in the Polish People’s Republic. Laws established by an undemocratic government, and thus theoretically lacking democratic legitimacy, were used by the opposition to delegitimize the government. The author describes the goals of the opposition and the lines of argument it employed, and how the Communist party—the other player in this peculiar game—made reciprocal efforts to exploit the law in order to weaken the opposition. The article discusses the specific international and Polish legal documents referenced by both sides of this game—the opposition and the government. The law was an important resource for both sides. This analysis nuances and demythologizes popular claims about the “Helsinki effect” by illustrating the role and legal context of the Helsinki Accords against the backdrop of local laws and the strategies undertaken by both actors. Furthermore, it describes the important institutional setting that influenced the types of actions undertaken by the protest movement in communist Poland.
Introduction
On the anniversary of foundation of the Workers’ Defence Committee (KOR), one of the most important dissident organizations in the Eastern Bloc, at my behest a question was asked about the attitude of the opposition to the legal provisions in force in the Polish People’s Republic. 1 For context, it is worth to begin by citing three representative answers from former anti-communist dissidents. When asked about the attitude of the opposition to the law, Andrzej Celiński replied, “We searched for opportunities to fully follow the law. Wherever it was possible, we strictly obeyed the law, in this way showing respect for a defective, bizarre, etc. country . . . but ours.” In turn, Bogdan Borusewicz stated, “We felt superiority over those who were supposed to observe the law but did not (the authorities). And of course this led them into confusion.” Then, included, as it is relevant to the subject of this paper, Borusewicz praised the lawyer Lech Kaczyński’s lectures on labour law for workers at the time. He remembered the importance of this legal education: “Because it equipped them (workers) with the possibility of a defence . . . against repression.” The third of the oppositionists, Mirosław Chojecki, said, “We did not pay attention to the law, being aware that everything depends on its interpretation and that the court would be interpreting it against us. So often when referring to a law or to what the authorities said. . . . Well, today they said this, tomorrow they will say something else. . . . Besides, as Jacek Kuroń would say, ‘When I hear the word security, I begin to be afraid, when I hear the word law, I know that it means unlawfulness.’” 2 Because of the international dimension of the phenomena described, it is worth mentioning another laconic expression. The last president of Czechoslovakia and the first president of the Czech Republic, Vaclav Havel, answered the question about undermining the communist government by relying on existing laws in Czechoslovakia by saying, “The idea was to hold them at their word, and say: this is what is written, we want it to be respected. We demand our rights by peaceful means.” 3
The attitude of dissidents regarding the law in a regime that they politically challenged as being deprived of democratic legitimacy, necessarily had to be complex. The aim of this article is to put into question the oversimplified, “romantic” vision of anti-communist dissidents attitude towards law, frequently associated with the “trickle-down” vision of the Helsinki effect.
It should be emphasized that from the very beginning, issues of the rule of law were of paramount importance to the political opposition in the Eastern Bloc. 4 Until now, the study of this subject has focused on “natural rights” as motivation for opposition movements in the 1970s and 1980s against authorities in socialist countries 5 or on the tension in dissident thought between legitimacy and legality. 6 The following ideas, as they were described in the subtitle of this article, deal with select aspects of the attitude of dissidents to the state and law and should be treated as a pretext for further theoretical research. Therefore, in this text, I propose an assessment of which acts of binding international and national law dissidents in Polish People’s Republic based their arguments on, as well as a study of the phenomenon of “playing the law.”
A contribution to this reflection may be the analysis of the 1970s phenomenon of playing the law, which was done by Polish dissidents on one side, and by the communist authorities of the Polish People’s Republic on the other. This is a fragmentary representation of attitudes toward the state and the law held by individuals who entered the tightknit circle of major political actors after 1989. In the broader context, this text can be treated as a contribution to reconsider popular interpretations of the so-called Helsinki effect. 7 Often a loose adaptation of the trickle-down effect, this notion presumes that after the conclusion of the agreements in 1975 dissidents behind the Iron Curtain received direct legal and political impetus for more actively engaging in opposition activities. As we shall see in the Polish example, the situation was more complicated since leaders of opposition groups were already active earlier and the Helsinki Accords constituted only one of their many legal reference points. Moreover, opinions about the rule of law in the Polish People’s Republic differ to this day.
Moreover, the study of post-communist legal culture is a subject that does not lose its bearing or relevance over time. 8 Questions continue to arise about the real attitude toward the state and the law in countries that regained their freedom after 1989 and have been members of the European Union for more than a decade. Over the years, post-communist aspects of transitional justice have been thoroughly debated. 9 The subject of post-communist legal culture has recently returned to the fore along with questions relating to the problem of compliance with the rule of law.
Law and Politics in Polish People’s Republic
The construction of communist totalitarian regimes included an effort to drastically break with the existing legal culture. 10 A new legal culture was subsequently introduced, the features of which were so particular that it has driven researchers to attempt to name it, for example, “anti-legal culture.” 11 To this day, in Polish academia there is a discussion about whether this period should be considered one of lawlessness or a period of “twisted law.” 12 Certainly, in assessing the rule of law in socialist countries in Central and Eastern Europe, their dark “pedigree” must be taken into account, including the dependence of the local communist authorities on Moscow, high levels of lawlessness in the post-war period, terror and propaganda, show trials, etc. In the case of the Polish People’s Republic, the symbolic and real height of the Stalinization of the state and law is connected with the adoption of the new constitution on 22 July 1952, 13 which was not only modelled on the Soviet constitution of 1936 but also edited by Joseph Stalin himself. 14
The constitutions of countries in the Eastern bloc generally guaranteed fundamental freedoms to their citizens, but this had no practical implications. Basic legal acts were essentially façades. Societies in the Eastern bloc distrusted the new legal framework of the socialist state. 15 However, in the 1960s and 1970s, a new generation of socialist constitutions appeared, 16 and it can even be argued that in socialist constitutionalism in the 1970s the issue of civil rights and freedoms grew more important than it previously had been, as increasingly not only top–down legislative changes were significant. 17 With the emergence of organized opposition groups in the 1970s, some limited changes aimed at making the observance and enforcement of the law were implemented. 18 Even in the Polish People’s Republic, the phenomenon was noticed and explained, for example, by the weakening of the communist authorities’ real power in comparison with the earlier period (possibly due to the government’s growing indebtedness to ideologically hostile countries). 19 Paradoxically, therefore, laws—even those established at the height of Stalinism, such as the 1952 Constitution—gained a new political significance in the 1970s. They became some of the “legal instruments” embraced by opposition circles. The phenomenon of the birth of opposition movements in the Eastern bloc was supranational. The strongest opposition movements were born in Poland and in Czechoslovakia. 20 The newly forming groups of dissidents, such as the aforementioned KOR, ROPCiO, and Charter 77, decided to take a stand against the law as it was applied. Representatives of the opposition circles, instead of contesting the law in force in undemocratic states, highlighted specific existing legal provisions to defend civil rights and freedoms. The demands for reforms proposed in opposition programs generally included an increasingly broad look at the issue of the rule of law. Jiří Přibáň has tried to represent this political and legal strategy in his research. 21 The oppositions attempted to exploit the rift between the socialist concept of rule of law and the political reality. The Czechoslovak Charter 77 and other human rights groups and dissident organizations systematically tried to show that the whole nature of the regime, which claimed to be socialist, lawful and constitutional, was essentially openly discriminatory, repressive, and violated international standards of human rights and civil liberties. This was the strategy of delegitimizing the authorities in the eyes of citizens embraced by the opposition. 22 From the mid-1970s, dissidents in the entire Eastern bloc started to cite different legal acts, including the Final Act of the Conference on Security and Cooperation in Europe, but also many others, which began to bear fruit. A real respect for the provisions in it, relating to the respect for human rights and fundamental freedoms, could destabilize the most liberal versions of people’s democracies. 23 And so, the tactic of “x,” as described by Havel and practiced by the opposition since the mid-1970s, appears to contemporary researchers as an example of “breath-taking simplicity” and “pure genius.” 24 This strategy is often summed up as the “Helsinki effect,” 25 understood in principle as a process initiated from above, which became a “legal and moral trap” for the countries of the Eastern Bloc. 26 In practice, the process was more complex. The activities of the opposition circles were much more multifaceted, and the Helsinki Agreement was only one of many documents they cited. In practice, recognizing the violation and observance of national law was as important as citing general concepts of international agreements.
Assessing the significance of the Helsinki effect in this way seems overshadowed by the opinions of dissidents from years ago, as will subsequently be shown. From today’s point of view, the statements made by actors of past events should be treated with perspective. The diagnosis of reality at the time by dissidents, which were part of the establishment of a starting point from which to undertake actions and were undoubtedly tactical, may seem simplistic or even inaccurate (e.g., accepting that in the 1970s the Polish People’s Republic should be treated as a totalitarian state). 27
As far as the attitude of dissidents to the law is concerned, ex post we rather observe a complicated phenomenon, which can be described as playing the law. The law, established by an undemocratic authority and therefore theoretically deprived of democratic legitimacy, was exploited by the opposition, which according to its declarations wanted to lead to the democratization of the system. Playing the law served various purposes. It aimed to temporarily undermine the actions undertaken by authorities against the opposition. It was also certainly an attempt to attract the passive part of society and the international community to their cause. Dissidents not only pursued their moral convictions, but they also had to develop an appropriate strategy and tactics that were responsive to the evolving environment. However, the opposition did not adopt a stance of unconditional compliance with the law in order to show that the authorities behave contrarily. Because of the goals they set for their movement, representatives of dissident groups had to pick and choose which rules they would follow and which they would not. This was decided on a case-by-case basis, in response to the situation at hand. From a distance, it becomes astonishingly clear how the tactics implemented by dissidents to some extent reflected the tactics of the authorities, who—as confirmed by the archives 28 —also calculated whether in a given situation they should act in accordance with the law or not. In this sense, playing the law in the period of 1976–1980 can be treated as a taste of the situation during the mass anti-communist movement in 1980–1981 initiated by the sanctioned Independent Self-governing Labour Union “Solidarity” (NSZZ “Solidarność”), which can be viewed as a complete “legal revolution.” 29 What is more, playing the law can be associated with the coexistence of two levels of reality in socialism: the official level of an artificial harmony of interests ( apparent unity and social harmony) and the hidden level of real conflicts and tensions. 30 The opposition was aware of the authorities’ activities on both levels of reality, which explained the ambivalent attitude of the authorities to the law. On one hand, it was known that authorities could act with lawlessness, but on the other hand, they could not completely disregard the law (as the law served to the authorities as an instrument in many ways, including the domestic and international legitimization 31 ). Individuals involved in opposition activities drew conclusions from this as to the overall state of affairs. This is evidenced by the content of the explainer “The Citizen and the Security Service,” which instructed on what, according to the existing regulations, a representative of state security institutions can and cannot do (actually, the explainer, prepared by the lawyer Jan Olszewski, instructed its readers where the boundary lay between activities within and outside the confines of the law). 32
Following from the above, a hypothesis can be postulated that although the political motivations of actors involved in events in the 1970s could be radically divergent, devising a strategy and tactics within or outside the law took place in both the private apartments of opposition members and in the official buildings of the authorities. When assessing dissidents’ relationship to the law in the 1970s, the most important aspect to note is which legal acts were cited when undertaking opposition activities. All things considered, it can be said that there was a kind of “menu of laws” that the opposition could choose from.
The Law in Force: The International Backdrop
For Polish opposition groups, the following international documents were important points of reference: (a) Human Rights Covenants of 1966, (b) the Final Act of the Conference on Security and Cooperation in Europe of 1975, and (c) Conventions of the International Labour Organization.
Human Rights Covenants of 1966
The Human Rights Covenants were one of the most important legal points of reference for the political dissidents in Poland. In the very first document, issued by the Movement for the Defence of Human and Civil Rights (ROPCiO), these pacts along with the Universal Declaration of Human Rights, served as an argument for the opening statements (and preceded references to other documents, including the Final Act of the Conference on Security and Cooperation in Europe). 33 In 1966 the United Nations General Assembly adopted two human rights covenants: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These pacts were preceded by important as the United Nations Charter and the Universal Declaration of Human Rights, adopted by the General Assembly on 10 December 1948. In practice, these documents of 1948 were completely ignored in the Polish People’s Republic. The legal reasons behind this were significant. From a formal point of view, the declaration, being a resolution of the General Assembly, was only a recommendation, not an international agreement. The Human Rights Covenants, which were unanimously adopted on 16 December 1966 at the 21st session of the UN General Assembly, brought some change. 34 Both pacts, in comparison with the 1948 declaration, constituted “serious progress in the field of international protection of human rights.” 35 As international agreements, they were legally binding, and contained a list of human rights that was more complete than the Declaration, including provisions on the protection of and real respect for human rights. Political opposition in the communist countries eagerly recognized these international documents to highlight how national law was in conflict with them. 36 Eventually, the Human Rights Covenants were ratified in the Polish People’s Republic in 1977. On behalf of the Polish People’s Republic, the Council of State 37 declared that they were accepted, ratified, and confirmed, and promised that they would be invariably respected (International Covenant on Civil and Political Rights, Journal of Laws from 1977, no. 38, item 167, and the International Covenant of Economic, Social and Cultural Rights, Journal of Laws of 1977, no. 38, item 169).
The Final Act of the Conference on Security and Cooperation in Europe of 1975
In the second half of the 1970s for the entire Eastern bloc, including the People’s Republic of Poland, a new argument for the observance of human rights was the signing of the extensive “Final Act of the Conference on Security and Cooperation in Europe” 38 in Helsinki in 1975. Representatives from not only European countries but also the United States and Canada took part in this event. In the “Final Act,” which was part of a wider process of detente in international relations in the mid-1970s, 39 included ten principles that were defined and were to be followed by the states participating in the CSCE. Alongside declarations regarding refraining from the threat or use of force and the inviolability of borders, a declaration of respect for human rights and fundamental freedoms was included. The principles of the CSCE Final Act were signed by the Polish People’s Party delegation with Edward Gierek (1913–2001), the then first secretary of the Central Committee of the PZPR, at its head.
Interestingly, from the point of view of the law, it was not an obvious ‘weapon’ to use against communist authorities. As pointed out in the literature on the subject, the CSCE Final Act “did not formally constitute an international agreement or a peace treaty, but a kind of multilateral declaration of moral and political obligations, with different states looking to emphasize different aspects of the Act.” 40 And yet, it is the fragments of the Helsinki document regarding human rights that took on an unexpected significance in the second half of the 1970s. From the moment the Helsinki Accords were signed, “Moscow’s critics at home and abroad could argue that on the issue of human rights, the Kremlin violates an international treaty that it signed of its own will.” 41 The historian Wojciech Roszkowski even observes that “the Final Act of the CSCE proved to be a double-edged sword for the Kremlin: while confirming the status quo in Europe, it emphasized moral principles, the violation of which was fundamental to the communist system, and yet it encouraged them to enforce these principles.” 42
In Czechoslovakia, the establishment of Charter 77 is connected to the October 1976 publication of the text of the Helsinki Accords in the Czechoslovak Journal of Laws. The “Final Act of the Conference on Security and Cooperation in Europe” gained paradoxical significance also in the Polish People’s Republic. Its importance is emphasized, for example, when discussing the origins of KOR. 43 However, even before the establishment of KOR, a protest letter written by Polish intellectuals in 1975–1976 opposing changes planned by the communist authorities to the Constitution of the Polish People’s Republic of 1952 (Letter 59) cited the Final Act. The letter protested against restrictions on civil liberties. In January 1980, the Helsinki Commission was established in the Polish People’s Republic with the purpose of assessing the compliance of the authorities with the provisions outlined in the “Final Act of the Conference on Security and Cooperation in Europe.” The Helsinki Commission was to maintain contacts with human rights organizations in other countries, and was tasked with preparing a report on human rights in Poland to be presented at the Madrid Conference in 1980. 44
The “Final Act of the CSCE” was increasingly cited in protests against the communist authorities. Citizens demanded that its text be made available. During the tense summer of 1980, when mass strikes against price increases took place, the Helsinki Accords were also used as a kind of “legal shield.” In the Szczecin Agreement, concluded between representatives of the authorities and striking workers, the Final Act is explicitly mentioned. In the “Memorandum of Understanding Regarding the Conclusions and Postulates of the Inter-Enterprise Strike Committee with the Government Commission in Szczecin” dated 30 August 1980—in response to one of the workers’ demands 45 —it was agreed that “The Human Rights Covenants and the Final Act of the Conference in Helsinki will be printed by PRL publishing houses” and that “they will be reprinted again in the form of brochures.”
International Labour Organization conventions
To bolster their activities, and subsequent strikes in 1980, the opposition “discovered” the
– ILO Convention No. 87 (Journal of Laws of 1958, No. 29, item 1225), and
– ILO Convention No. 98 (Journal of Laws of 1958, No. 29, item 1226).
Direct reference to one of the ratified ILO conventions, as well as to the Human Rights Covenants was included in the “Charter of Workers’ Rights” published by Committee for Social Self-Defence (KSS) KOR. 46 The charter aimed to support working people in demanding that their rights be respected, and referencing the ILO convention was an effort to justify the law as it was written. In the study of the law in the Polish People’s Republic, it was believed that the conventions after ratification in full became a source of international obligations for the state, obligating the to establish or adapt national law to these standards. 47 Moreover, the study of the law in the Polish People’s Republic was dominated by the view that ILO conventions can and should be applied by courts and other state bodies after they have been ratified by the Council of State and announced in the Journal of Laws. From that moment, the conventions obtain direct binding power, and thus they can exert legal impact proprio vigore (i.e., without the need to transpose them into norms contained in relevant acts of national law). If the conventions concerned matters not covered by existing laws, then they were binding even without an announcement in the Journal of Laws. The ratified convention, like any international agreement, is binding until it is terminated by the Polish People’s Republic. This meant that subsequent acts, issued after ratification, could not violate the conventions. 48 However, this was only in theory, as the practical implementation of the ILO conventions in Polish People’s Republic differed significantly from how it was intended, even beyond the glaring incompatibility of national legislation. 49 References to the ILO convention were motivated by the lack of appropriate provisions in Polish labour law ensuring the protection of the independent trade union movement, and, in the opinion of the lawyer Ludwik Florek, due to a distrust of national law, which, it was thought, could be freely changed by the authorities and was therefore used as an instrument to achieve short-term political goals. 50 It seems that this conclusion can be drawn in relation to other acts of international law cited above.
The Law in Force: The National Backdrop
The constitution of 1952
The most important legal act in Poland that dissidents could refer to was primarily the Constitution of July 1952. Communist authorities changed this constitution from the Stalinist era several times. In the mid-1970s, they planned a tenth change, this time touching issues of fundamental political importance.
In December 1975, an Extraordinary Committee of the Sejm, headed by the chairman of the Council of State Henryk Jabłoński, was established to prepare a draft amendment to the Constitution. The committee included, among others, well-known lawyers who were closely associated with the authorities. 51 It was officially announced that “the preliminary draft of the amendment to the constitution prepared by this Commission was the subject of extensive consultations with various social circles, including the scientific community, as well as subject to public discussion.” 52 The most important changes included proposals to add into the constitution language on leading role of the PZPR in the state; provisions for a permanent and inviolable alliance of Polish People’s Republic with the USSR; and provisions for making the respect of citizens’ rights dependent on their obligations to the state. The proposed changes were in line with the effort to give the Constitution of the Polish People’s Republic the character of a binding basic act, albeit to a lesser degree.
However, before the changes were introduced through the Act of 10 February 1976, they triggered a wave of unexpected protests. The euphemistic term public discussion encompassed the protests that resulted in a flow of protest letters to the Sejm. One of them, the aforementioned Letter 59, was important for the development of the language of the opposition.
53
It began with wording that is worth quoting here: The guidelines for the VII Congress of the PZPR contain the announcement of a planned amendment to the Constitution. After the conference in Helsinki, where the Polish government along with 34 governments of other countries have solemnly confirmed the Universal Declaration of Human Rights, we believe that the introduction of these fundamental freedoms should become a new stage in the history of the Nation and in the life of Individuals.
54
The Constitution of the Polish People’s Republic and the legislation based on it, the authors of the letter emphasized, should therefore guarantee a list of civil liberties consistent with international law.
The protests did not mean that the opposition declared any kind of surprising “fealty” to the Constitution of 1952. They served rather as a tool to expose the legal hypocrisy of the authorities that do not respect the provisions of the binding law. At the same time the protest of 1976 revealed that referring to the legal norms ignored by the authorities may be of political value in the future. Opposition to the planned changes to the Constitution citied acts of international law. The announcement itself in September 1975, 55 which came after the signing of the Helsinki Accords, and the anticipated leadership role of the PZPR in the Constitution could be read as a “manifestation of the disregard for the commitments just signed” 56 in the Final Act of the Conference on Security and Cooperation in Europe. This Act had included a declaration to respect political freedoms as expected in a democratic system.
The Catholic Church in Polish People’s Republic also spoke out about the changes in the Constitution of 1952. Taking a stance in opposition to the proposed changes, the Church also embraced the strategy of citing existing national as well as international law. When the Polish Bishop’s Conference of 1976 sent the chairman of the Extraordinary Committee of the Sejm Henryk Jabłoński notes dated 9 and 26 January,
57
they state, Without assessing foreign policy, we strive to emphasize that relations between Poland, as a sovereign state, and other states are based on the same principles regardless of whether they are socialist or other states; these are the rules adopted at the conference in Helsinki as binding. . . . We are keenly interested in the announcement of changes to the articles of the Constitution that concern the rights and obligations of citizens. However, there is a concern that one ideological concept will affect the definition of citizens’ rights and obligations. Therefore, at least the provisions of the Universal Declaration of Human Rights and International Human Rights Covenants should be taken into account in regards to this matter. Both of these documents have been confirmed in the Final Act of Helsinki.
The Polish Bishops’ Conference demanded that “the Constitution of the Polish People’s Republic guarantee the Church not only the possibility of performing a religious function, but also religious freedom.” And again, the Final Act was cited: At this stage in the development of social awareness of nations in connection with the signing and acceptance by the Government of the Polish People’s Republic of the Declarations in Helsinki, section 2 art. 71 of the Constitution, which limits the basic freedoms of speech, printing, assembly and rallies, processions and manifestations guaranteed in section 1 of this article, is an anachronism. Until now, the courts of the Polish People’s Republic, citing this provision, refused to grant these rights to the Church, claiming that the Church is not an organization of the working people. This is contradictory with the reality that exists in Poland.
These numerous protests received limited recognition. 58 Any attention that was paid to protests was determined by the perceived importance of who was protesting rather than what arguments were used. During a speech on 10 February, Henryk Jabłoński stated that “the overwhelming majority of statements showed an understanding of the intent of the project, accepted it, supported it.” 59 He did not omit mention of the protests, which were directed at the Sejm’s Extraordinary Committee. However, he stated that they amounted to a “very small number of statements,” which he classified as coming from the opponents of socialism and the people’s state, “whose authors were confused people who neither understood the prepared changes nor the actual meaning of the proposed regulations and who were sent by those opposed to the development of democratic forms of our socialist state.” 60 On 10 February, the Sejm passed the proposed amendments with one abstention, which grew into a significant symbol. 61 They came into effect on their announcement on 14 February. Following the passage of the amendments, the full text of the Constitution of the Polish People’s Republic was published in a proclamation of the Chairman of the Council of State on 18 February. 62 It should be emphasized that although changes to the Constitution were met with protests, the amendments actually aimed to partially disclose the political reality of the Polish People’s Republic, for example, through the provisions officially cementing the already in existence political alliance with the USSR or affirming the leading role of the PZPR. In this sense, at least some changes to laws that had previously created a type of façade, paradoxically, disclosed the actual state of affairs rather than legally masking the reality. Thus, the changes made to the Constitution in 1976 unexpectedly strengthened the role of the law by revealing in the law the actual state of affairs, although the changes continued to be wrapped in the appropriate phraseology that articulated the official ideology. 63 Despite the protesters’ immediate sense of disappointment, the existing legislation confirmed its usefulness as a tool for conducting peaceful opposition activities and delegitimizing the authorities of the Polish People’s Republic.
The Labour Code of 1974
Among various legal acts that dissidents could cite, it is worth mentioning the Act of 26 June 1974, which established the Labour Code. 64 The Code granted a wide scope of protection of employees’ rights, which in practice were often not observed. The opposition, which undertook action on behalf of the workers, turned to the labour law as a tool against the authorities of People’s Poland.
It should be therefore mentioned here as an important instrument for “playing the law.” For it was relatively easy to convince workers that their workers’ rights were not properly observed on everyday basis in shipyards, factories, etc. The Code as a legal point of reference took its greater significance in the hot period of 1980–1981; however, the strategy of “taking the code seriously” by the political milieus was coined in the second half of the seventies. 65
“Playing the Law”
The breakthrough of 1976: The strategic choice
When looking at the attitude of the opposition circles towards the law in the Polish People’s Republic, the year 1976 can be considered a breakthrough for the dissemination of a reasonable strategy of action. That year, it became clear that even the Stalinist-era constitution could be used as a serious political weapon. 66 This led to a highly paradoxical situation. As Krzysztof Persak noted, “It seems to be a joke of history that provisions concerning the socialist state system, the PZPR’s leadership and alliance with the Soviet Union, removed by Stalin in his revisions in the autumn of 1950, returned to the constitution of the Polish People’s Republic a quarter of a century later.” 67
Protests against the proposed changes to the constitution had a clear impact, leading to the merger of opposition circles in 1976. To this day, however, less attention is devoted to the fact that the entire movement focused on events of not only political but also legal significance. Protests of this period failed to achieve their goals, and the PZPR easily passed the legislation they wanted in parliament. But, as was noticed then, “a measure of success was the dulling of some laws.” 68 In opposition circles, it was one of the arguments in favour of seriously focusing on the law in the Polish People’s Republic as part of the wider political struggle. All that was left was to decide what this would mean in practice. After all, the recent changes to the Constitution had included article 3, paragraph 1: “The leading political force of society in building socialism is the Polish United Workers’ Party,” 69 which the political opponents could not and did not intend to actually respect. Activists of the political opposition had to decide whether they would undertake initiatives sanctioned by law or whether they simply did not intend to comply with certain provisions of the law applicable in the Polish People’s Republic.
In the mid-1970s, the question had not yet reached a foregone conclusion, because, for example, Antoni Macierewicz (born in 1948) in a famous article titled “Reflections on the Opposition,” published in the second edition of Annex in 1976, in the name of political goals suggested abandoning legal actions. According to Macierewicz, “legality” was an unnecessary burden for the opposition, by diminishing its significance and moreover acting as an obstacle to the realization of its goals. The author believed that “our actions do not require any legitimacy from the state,” and that the opposition must be a “free public voice,” which must act openly, as only in this way can a resistance movement be created in the future. All appeals to the authorities are pointless, because the authorities ignore them. Macierewicz wrote, “Legality does not make sense. Perhaps, transparency of action does, but only when the opposition, a group conducting global politics, is replaced by a resistance movement.” 70 In the mid-1970s, the wording “resistance movement” itself could have been plainly associated by article readers with the activities of the Polish resistance movement in occupied Poland during World War II. Combined with the phrase “Legality does not make sense,” it might have led therefore to the conclusion that even the use of physical violence would be politically justified and adequate. This was just one of the theoretical proposals about the opposition in the second half of the 1970s. Macierewicz ultimately became a member of KOR, which, at least in principle, followed a path of “legalism.” 71
In the 1970s, this strategy was not a given not only in theoretical discussions on the subject. The opposition’s attitude to the law could have been radically subordinated to the cause of regaining independence, which reached for inspiration to the insurrectionary practices of the past that allowed for the use of physical violence. In June 1970, “Ruch,” an organization created in 1965 by Andrzej Czuma (born in 1938) with supporters from the veterans’ circles of the Home Army and the association “Freedom and Independence,” planned to undertake the destruction of the monument of Vladimir Lenin and the museum dedicated to him in Poronin. 72 Such deeds had nothing to do with respect for the binding law; neither did the expropriation campaigns (more plainly described as thefts) aiming to support the publishing of opposition magazines. 73 One would be remiss not to mention the blowing up the auditorium at the College of Pedagogy in Opole by Ryszard (1937–2017) and Jerzy (born 1942) Kowalczyk in October 1971. 74
The year 1976 can be treated as a breakthrough in thinking about the law as an important tool for conducting opposition activities. This meant moving away from questioning the state and the law as a whole for being deprived of democratic legitimacy in favour of a more nuanced strategy. KOR and ROPCiO both chose this strategy of playing the law, fully expecting it to elicit a response from the authorities. 75 As described by one of the founders, Jan Józef Lipski (1926–1991), “KOR knew that repressions (or their lack thereof) will depend on the self-confidence of the authorities, not on the legal status—but he wanted to have the law on his side to the greatest extent possible.” 76
KOR and the “Charter of Workers’ Rights”: The problem of the legality of undertaken actions
On 23 September 1976, a group of opposition activists set up the Workers’ Defence Committee (KOR), informing the Sejm about this in an open letter signed by the writer Jerzy Andrzejewski (1909–1983). At the same time, they issued an “Appeal to the Society and Authorities of the People’s Republic of Poland,” which offered a general outline of the organization’s activities. In the time of its existence, on one hand, KOR acted openly and referred to specific provisions of applicable laws to defend workers in legal cases brought against them. On the other hand, they broke some regulations that were in force at the time: publications were published outside the confines of censorship; money was collected without abiding by applicable provisions of civil law or financial law, etc. In practice situations arose that are difficult to classify legally altogether. 77
These difficulties are reflected in documents published by the dissidents. Among the various documents published by the Workers’ Defence Committee, it is worth mentioning the extensive Charter of Workers’ Rights. This document, to which great significance was attached and about which Jan Józef Lipski would later write that “it was the next step towards Solidarity,” 78 was published in the pages of the second edition of The Worker (Robotnik) in 1979. 79 First and foremost, it is important to think about their postulates and actions as being based on existing laws. At the outset, KOR explained the reasons behind why it was decided to “create a self-defence system for working people, above all independent trade unions.” Among the reasons they listed were depriving citizens of the right to participate in making decisions relating to them; limiting the basic rights of working people, such as the right to safe and meaningful work, to decent income, to rest; deepening inequalities and social injustices; lack of institutions defending people’s work; dispossessing workers of their basic defence, namely, the right to strike; transferring the costs of all errors of the authorities onto the shoulders of society, including the costs of the current crisis. The Workers’ Rights Bill addressed issues related to labour law and suggested specific changes to the code that had been in force since 1975. For example, it was recommended that factory management must explain in writing to dismissed workers the reason for their dismissal. That employee should then be allowed to work until all legal remedies are exhausted, and during any legal proceedings he should have the right to lawyer. Although the opposition was well aware of the fact that, in the light of existing legislation, workers were not entitled to strike, it was recommended that workers undertake strikes. They suggested, “Undoubtedly strikes are an effective course of action, even small ones. In general, however, they are only effective in the short term. In order to not undermine the strike’s goals, its participants must choose representatives who will represent their demands. If employees are able to act in solidarity and are not afraid, they can force the management to make concessions by the mere threat of a strike, by presenting a petition or sending a delegation.” At the same time, paradoxically, it was recommended that workers inform the authorities about actions that are not compliant with regulations, in particular health and safety violations, but even noncompliance with moral standards: “Speak loudly and protest when someone is wronged, when we see injustice; the activities of cliques and abuses of privileges must be uncovered, negligence and waste must be reported. . . . It is necessary to talk about this with colleagues and at meetings. Demands must be made of authorities that they take a stand. Inform independent social institutions, editorial offices of independent magazines” and make use of the help of official trade unions. Finally, organizing workers’ groups was recommended as they were supposed to “ensure that our activities are not ad hoc and random.” It was difficult to predict whether the activities of such groups violate existing laws; however, it was envisioned that workers’ groups “initially even secret, could formulate a program of activities, organize a series of actions, shape opinions, and in time manifest themselves as independent workers’ committees.” A powerful recommendation of the Charter of Workers’ Rights was the creation of free trade unions: “wherever there are strong organized workers’ milieus that can defend their representatives from being thrown out of work and arrested.” Examples of “experiences of people working in democratic Western countries” were cited to confirm that “this is the most effective way to defend employee interests.” 80 It was foreseen that “only independent trade unions supported by the workers they represent have a chance to oppose power; only they will be a force with which power will have to reckon and with which it will negotiate as an equal.”
A hugely persuasive argument highlighted that the actions being undertaken were “in accordance with the existing law.” It therefore played a significant role in the Charter of Workers’ Rights. KOR explicitly emphasized, “Our activity is in accordance with the law.” However, the legal classification of advised actions was not at all obvious. In order to dispel doubts, the Charter of Workers’ Rights explained that by ratifying the Human Rights Covenants and the International Labour Organization Conventions, the authorities of the Polish People’s Republic had thus recognized the right of workers to associate 81 and to strike. 82 The Charter of Workers’ Rights was not a document produced for the needs of intellectuals but was produced to convince workers to undertake the actions proposed in it. 83 It is significant, therefore, that all legal doubts that may arise from the tensions between international and national law are omitted in the document. It was more important to outline tactics for action for the opposition based on applicable laws. 84 The very idea of changing certain existing regulations in the future, at least in theory, was founded in an acceptance for the existing legal order of the Polish People’s Republic.
The strategy of citing existing laws and popularizing usable legal instruments gradually “came into force” in the pre-Solidarity period. For example, when the farmers in Lisów in the Radom voivodeship appointed a Provisional Committee of the Independent Farmers’ Trade Union 85 in September 1978, its founders cited article 2 of Convention No. 87 of the International Labour Organization, and article 22 of the International Covenant on Civil and Political Rights as the basis for their actions. The aims of the Provisional Committee of the Independent Farmers’ Trade Union were defined as follows: representing individual farmers to the authorities, defending the professional interests of farmers, as well as the defence of discriminated citizens. In turn, the Committee of the Independent Farmers’ Trade Union adopted a policy of independence from state and party authorities, along with self-governance, cooperation, and solidarity of farmers and industrial workers. 86
On the one hand, one could say that the whole farmer’s endeavour turned out to be pointless. The authorities recognized the Committee’s activities as “illegal” and began close surveillance of the founders. The Security Service and the Citizens’ Militia undertook actions against the organizers of the Committee, including Jan Kozłowski (1929–1996), whom they accused along with his neighbour of beating a Citizens’ Militia collaborator. Afterwards the Social Self-Defence Committee “KOR,” 87 the Lublin Catholic journal “Meetings” (Spotkania) and independent intellectuals launched a protest but on 1 February 1980 Kozłowski was sentenced by the District Court in Rozwadów to two years in prison, while his neighbour, Tadeusz Kolano, was sentenced to one and a half years. The Lublin Committee for the Defence of Jan Kozłowski, individuals who were involved in writing protest letters and distributing leaflets, were subjected to repressions by the authorities. 88
On the other hand, however, one could observe here a change of cultural codes of behaviour against the People`s Poland authorities. In the context of the 1970s, it was still rather unusual to see Polish farmers not acting outside the boundaries of the binding law, but trying to act transparently, setting up trade unions and citing existing laws, including the ILO conventions. Again, one shall bear in mind that at that time such deeds as creation of new trade unions were not “simply legal.” Trade union activity in the Polish People’s Republic was completely subordinate to the authorities. Therefore, no spontaneously created free trade unions could count on being officially registered in the trade union register. 89 This had numerous practical consequences. In particular, it meant that free trade unions could not acquire legal status. This made their day-to-day activities impossible.
Movement for Defence of Human and Civil Rights (ROPCiO)
A little later than KOR, in March 1977, the Movement for the Defence of Human and Civil Rights (ROPCiO) was created. In contrast to the left-wing KOR, ROPCiO had a more right-wing conservative profile. 90 It became the second largest grouping of the democratic opposition in the Polish People’s Republic of the 1970s. The movement adopted the loose arrangement of a “civic” movement, which was based on the actual involvement in activities rather than building a clearly defined organizational structure. In this way, formal and legal problems involving registration of the organization were avoided; however, it also had negative consequences in practice, including that the organization was more susceptible to internal conflicts and to infiltration by the Security Service. 91 Information about the formation of ROPCiO was relayed to the Sejm and the Polish Episcopate in the form of “An Appeal to Society.” The founding of ROPCiO was announced three weeks after Poland’s ratification of the International Covenant on Civil and Political Rights. 92 The question of whether and to what extent to comply with the law, as encountered by KOR members, also faced individuals involved in ROPCiO. The movement also tried to inspire activities among workers, and on its initiative the Free Trade Union was formed in Katowice, founded by Kazimierz Świton. 93
The very name of the movement somewhat answered the question about its attitude to the law in force. To some extent, it also expressed the strategy and tactics of the organization. It is, therefore, worthwhile to note significant ROPCiO activities, including
– the organizing in the various Polish cities of so-called Consulting and Information Points; 94
– on 1 May 1977, ROPCiO sent an open letter to the Sejm regarding the freedom of conscience and religion;
– on 3 May 1977, ROPCiO published a document titled “Declaration on the Freedom of Speech,” in which it justified the importance of freedom of speech for the whole of society and all groups of citizens, and on 18 May, they sent a motion to the Speaker of the Sejm proposing the debate and adoption of an act on the freedom of speech;
– the organizing of a campaign regarding the publication in the Journal of Laws of the People’s Republic of Poland, the ratification on 3 March by the Council of State of the International Pacts on Human Rights, and the adaptation of the national law of the People’s Republic of Poland to it; 95
– the preparation of a statement for the conference of the signatories to the Final Act of the CSCE in Belgrade, which took place in October 1977, in which it was advocated in the settlement of individual states on the principle of respect for human and civil rights, etc. 96
The historian, Andrzej Friszke, states that “in analysing the difference ways in which KOR activists and ROPCiO leaders thought, it should be noted that the latter paid less attention to partial changes, such as improving the rule of law, extending freedom of speech, improving the economic system.” 97 In reality, both organizations differed more in their political profile and in personality of their leaders than in their relation to the law in the Polish People’s Republic. However, the progressive formalization of the content produced by the opposition is striking. Their departure from revolutionary rhetoric, proclamations for independence, and literary pathos is visible. 98
In the times of their existence both KOR and ROPCiO were milieus of heated political debates. From legal perspective however the documents of KOR and ROPCiO reveal that the ways of thinking about playing the law, undertaken by activists in both organizations were surprisingly similar. 99 The activist chose different legal tools from the international and national acts of binding law, while thinking of achieving more ambitious, political goals. From this long-term perspective, in practice they had to select which provisions of the Polish law they would obey, and which not. As we have seen, both KOR and ROPCiO were urging the authorities to comply fully with the law, and both volens nolens had to print their samizdat publications outside the scope of the official regulations.
. . . the authorities also play
In this article, we focus on the attitude of Polish dissidents towards post-Stalinist and international law before the period of Solidarity. It is however important at least to mention the role of the third “players” against whom both groups actively protested. Representatives of the Polish People’s Republic monitored the formation of various opposition circles with the utmost attention. When any new organization formed, the Security Service relatively quickly learned about it. On the basis of reports from the “field,” an assessment was made about whether their actions would be compliant with existing regulations. One must wonder, What inspired the Security Service to give the operation for deciphering the workings of KOR the codename “Players” [sic]? 100
Opposition activists were often hindered with specific provisions of the law in order to make it more difficult for them to act in advance, as their actions were immediately assumed to be political in nature. The internal documents of the Polish Interior Ministry show that the authorities sometimes even saw a “mirror image” of their own practices reflected in the activities of opposition circles.
101
References to provisions of international or national law were seen as actions undertaken to mask the true intentions of an anti-state character. For example, a document from the end of 1977, reads: The KSS-KOR and ROPCziO groups, camouflaging their actual political goals with the slogans of combating violations of the rule of law, securing civil rights and freedoms, etc., actually carry out activities aimed against the external and internal policy of the state, and by spreading false messages, and biased information and evaluations in Poland and abroad, they aim to activate and attract different circles around the slogans and actions they are undertaking, bringing about a political ferment directed against the authorities of the People’s Republic of Poland.
102
Throughout the existence of KOR and KSS “KOR,” an investigation into their activities was carried out by the Ministry of Interior’s Investigative Office, 103 during which the noncompliance with the law of individual actions undertaken by dissidents was comprehensively assessed. The assertion of “obviousness” led to unintentionally absurd effects. As an example, at the request of the Prosecutor’s Office, the Central Office for the Control of the Press, Publications and Performances declared ‘second circulation’ print illegal. 104 The same absurdity was reached when the Warsaw authorities officially responded that an association under the name KSS “KOR” had not been officially registered, while claiming that an application for registration had not been received. 105
In the case of ROPCIO, one could effortlessly find similar examples. In 1977 in Wrocław after a series of repressions, the activists not only tried to demonstrate that they acted in full compliance with the law but also sent a proposal to the local authorities to cooperate in order to defend human and civil rights in Poland. In return, they received decisions from the district offices that ROPCIO’s unregistered existence was completely illegal. The activists tried to appeal (unsuccessfully) against the decisions on the ground that ROPCiO was not a society or foundation but a movement. 106
These examples are multiplied by the fact that directives issued to prosecutors in the field showed that on the side of the authorities, playing the law became increasingly sophisticated. In situations where the options of open repression or legal process for belonging to illegal organizations would be considered, these options were instead treated as a last resort. 107 Recommendations from the Ministry of the Interior to initiate legal proceedings on the basis of the collected materials were rejected for reasons that had nothing to do with the observance of the law. Rather, the lack of “good press” abroad was cited as adequate reason. 108 Abstaining from physical violence or politicized legal proceedings, paradoxically, required increasingly greater familiarity with the current regulations among lower-level officials. Undoubtedly, such a strategy on the part of the authorities contributed to allowing opposition circles to play the law.
Conclusion
Certainly from the perspective of over forty years we can venture a hypothesis that the ability to cite human and civil rights legislation by opposition groups was made possible because of important changes in information flow within the power system in the Eastern bloc. The legal and moral trap of Helsinki, mentioned at the outset, would not be possible without changes taking place within the Eastern bloc itself. Attitude towards existing national and international law should therefore be treated as a litmus test of this process.
Moreover, it is instructive that the undemocratic authority was de facto weakened politically by even just the temporary enforcement of effective compliance with the existing legislation. Citizens, on the other hand, gradually recognized this situation as a new opportunity, and they adapted to it, which potentially opened the way for further sociopolitical changes. 109 From this perspective, playing the law in the second half of the 1970s remains an important overture for the real clash that arose in early 1980s. During the tension in the period between the summer of 1980 and December 1981, representatives of NSZZ “Solidarity” and state authorities engaged in a struggle, in which the law played a very fundamental role. One notable example of this is the fact that during workers’ strikes, demands were proposed that, before the imposition of martial law, were turned into national laws. This took place, moreover, through the unprecedented, open, and bilateral negotiations on the content of the new law. 110 That topic is a completely different story, however, its beginnings can be traced back to the second half of the 1970s and the phenomenon of playing the law. 111
