The Ghost of an Authoritarian State Stands at the Door of Your Home
The following is a speech given at the 48th European Presidents’ Conference of Lawyers 2020 in Vienna.
In the late hot summer of 2033, in the home of a retired judge, a copy of a letter dated 21 February 2020 was lying on a desk. It was a father’s letter to his lawyer son. Here are its contents:
we had a long, emotional conversation about things that happen in the place
that is most precious to us. Most precious because with the view to history, the
present and the future. Your future of and that of your children.
is a recapitulation of the conversation. A recapitulation sine ira et studio, as you would expect of lawyers. The emotions it
evokes, the lack of comprehension of and the disagreement with the destruction
of the constitution, democracy, the rule of law and human rights are
understandable. We are only human beings, being at the same time citizens and patriots.
Residents of at least two countries – Hungary and Poland – which have started
to race in a bad competition. Competition so bad that the winner turns out to
be the biggest loser.
But let’s leave the emotions behind.
almost imperceptibly. The presidential and parliamentary elections won by the
same political option were irreproachable. Their legality and legitimacy were
not in question.
the first move lit a red light. It was the exclusion of the most important
safety net of constitutional democracy, which is the constitutional court. The
methods – first the Gleichschaltung
and then the Ausschaltung of the
constitutional court – have passed into the textbooks for staging a coup d’état. No army, no change of the constitution,
and no effective reaction of international public opinion then.
the civil service was liquidated and replaced by party Nomenclatura. Public
media were completely subordinated to political power.
political authority then completely took over and subordinated the prosecutor’s
office. Prosecution is not willing to see where the government cronies violate
ceased to fulfil its constitutional role. The legislative process became a
farce. The Parliament is only a mechanical voting machine. Speeches by
opposition MPs are limited to 30 seconds. For a 40-second extension, the
speaker of the chamber imposes a fine of 700 euros. The law is passed within a
few hours, often at 5 a.m. and comes into force on the day of its promulgation.
And – in Hungary – the constitutional amendments are adopted within 72 hours
without any attempt to deliberation.
court packing of the Supreme Court begins – initially, the dismissal of all
judges of the Supreme Court and eventually 40% of the court’s members under the
pretext that they had reached the freshly proclaimed retirement age. The
constitutional guarantee of the stability of the judicial status and the guarantee
of the 6-year term of office of the president of the Supreme Court are of no
importance. It is now clear why the constitutional court ceased to exist – to
make it possible to achieve these goals. And a Disciplinary Chamber of the
Supreme Court is established as a special court and was recently disqualified
as a court for this reason. Because a special court can only be established in
a state of war.
The aim of
the changes – cynically called the “reform” of the justice system – is to
subordinate judges and courts to political power. The Minister of Justice, who now
is also the Prosecutor General, has the unlimited right to appoint and dismiss
court presidents and other leaders of the courts.
You have counted
and could not believe that the terms “disciplinary court”, “disciplinary
proceedings” and “disciplinary officer” appeared 596 times in “The Supreme
Court Act and amendments to other acts”. If there is a shotgun hanging on the
wall in the first act of the drama, you know what will happen in the last act. Judges
are threatened with disciplinary accountability – and it is already strictly
applied – for the correct application of the law, for referring questions for a
preliminary ruling to the ECJ, for defending fundamental principles of the
constitutional order, for judgments that do not meet the expectations of the
takeover of the constitutional system is almost completed.
* * *
from having seen events over the past years that the instruction to destroy the
constitutional state is trivially simple, and trivially effective.
A state is
being created about which an astonished Gustav Radbruch would probably say –
statutory law and suprastatutory lawlessness.
know that violating the first constitutional norm for the first time triggers a
domino effect: violation of the constitution generates a growing avalanche of violations
of democracy, the rule of law as well as individual rights and freedoms. Society
loses the foundation of its existence. The state loses its sovereignty because a
state whose constitutional authorities violate the constitution is not a
sovereign state. A “technological sequence” of the destruction of the
constitutional state is being created, in which all state bodies, institutions
and procedures are involved in turn.
violation of the constitution is an expression of contempt for its axiology. Also,
contempt for its axioms. The constitution ceases to be the basis and the limit
of activity of the public authority. It becomes a false justification for the
true abuse of power. Just as when the president, the speaker of parliament, the
judges of the Disciplinary Chamber or the prosecutor’s office refuse to execute
a final court sentence. Or when the constitutional court changes the law only
to prevent the execution of a judgment that does not please the political
authority, a constitutional provision ceases to be a norm. It becomes one of “many
son, in yesterday’s conversation, your voice trembled when you said that
actions against constitutional democracy are carried out by the constitutional organs
of this country: parliament, president, government. That a situation has arisen
in which the first victim of the war against the constitution, namely the
constitutional court, has become a co-creator of actions violating the
constitutional order of the state. That the brake pedals have become gas
pedals. And the oath of fidelity to the constitution sounds like mockery.
asked, how is that possible? How is it possible that lawyers are involved in
the process of destroying the constitutional order?
answer. Lawyers are necessary to build constitutional democracy. For the destruction
of constitutional democracy, graduates of law faculties are enough. Regardless
of their grades and titles, professional or academic.
the ones for whom Carl Schmitt and his “Dictatorship” is the inspiration and
the guidance. And they leave the “Pure Theory of Law” and all of Hans Kelsen’s
works on shelves full of dusty books.
the right to ask if someone can be called a lawyer if they are willing to
accept the position of a judge in the Disciplinary Chamber of the Supreme Court
knowing that he will be paid 40 % more than fellow judges in other chambers of the
have the right not to shake their hand – in the name of the dignity of the
legal profession (judge, lawyer, prosecutor). But above all, in the name of all
the victims of the machine of injustice, whom the lawyers, precisely the
lawyers, were unable to rescue.
will not agree to any argumentative swindle, be it by substituting closely
related meanings for permanently established content or by identifying concepts
that are linguistically similar but different in substance. Or implemented in
any other way. Because it is a form of lying. A lie which is a cynical means to
an evil purpose. Favored by every populist authority. Illiberal regimes lie to
citizens, often making them accomplices in their lies. But we know that “you
can fool all the people some of the time, and some of the people all the time,
but you cannot fool all the people all the time” (A. Lincoln).
it is precisely judges who are being harassed, subjected to disciplinary
proceedings, and subject to a campaign of slander likewise organized by people
working in the Ministry of Justice. As a reward the slanderers are appointed
judges of the Supreme Court. The slander campaign has been excellently
orchestrated. But this is not the score by Verdi or Strauss and neither Arturo
Toscanini nor Karl Bohm stand behind the podium.
right to say that the next target will be the advocates. For their stance in
defending the fundamental values of the constitutional state. Dozens of advocates
are involved – pro bono – in the defense of judges and prosecutors who are
subject to disciplinary proceedings. The advocates have well-earned the
government’s revenge. Then it will be scientists and people of culture,
intellectuals, the genuine elite of the country. Some of them are already experiencing
legal harassment. And the moment will come when there will be no one to defend.
have to rebuild your country’s reputation. As a lawyer, you will be treated
with limited trust by others, foreign lawyers. But at least lawyers will give you
a chance. Your foreign partners want to believe that what happened was an incident
at work. An incident. Painful, incomprehensible, with dramatic consequences,
but still an accident. You are not to blame for what happened, but you carry
the burden of professional and moral responsibility. Take this chance, if you
get it. You won’t get a second one.
you asked what lessons we can draw from the constitutional reality that has
emerged? I will limit myself to five that have a universal dimension.
is the awareness of what we lose when the constitution is degraded. It is, as I
mentioned before, a loss of sovereignty; it is a loss of legal security, (both
within the state and in relations with other legal orders); it is a loss of
constitutional identity as a basis for considering the normative and social
order; it is a loss of credibility of the state in international relations; it
is a loss of confidence in the sustainability of the rational organization of
the state and society and in the inviolable constitutional principles,
including those of the nature of “perpetual clauses”.
is the awareness that the beginning of a collapse may not be easily visible,
seemingly justified by an accurate diagnosis of the need for change. Changes
will always be called reforms. And yet, a reform presupposes objective
knowledge and good intentions. Good faith is after all supposed to be an
unquestionable assumption. What we know is a hint – look at the end, and above
all look at the mechanism being created. Look with a cold eye. Don’t let yourself
look with eyes wide shut. Your deficiencies in historical memory – after all,
we have seen it all before and your deficiencies in imagination are not and
will not be any excuse.
even the longest war ends some time. Conditions for a ceasefire and then a
peace agreement arise. The war against the constitution will also end. And then
the reconstruction of constitutional democracy will have to start. For the
reconstruction of a constitutional state you cannot use methods appropriate for
its destruction. The reconstruction must respect the principles of democracy
and the rule of law. Restoration – we know this from history – is the opposite
of revolution. The devil’s circle of revolutionary chaos must be sundered. The
use of the methods of destroyers of democracy – so tempting for many – would in
effect create a poisoned tree; it could not bear healthy fruits.
Fourthly, don’t leave
people in need alone. A few weeks ago, we marched in a march of a thousand
gowns. Also, to express our gratitude to the dozens of European lawyers who
walked with us. The statement of The Bar Council of England and Wales is likewise
important. Symbolism matters. Don’t leave the lawyers in need alone. This
applies to your colleagues from the National Bar or the Judicial Association. To
those who are persecuted, harassed, imprisoned. Also, abroad. Think of nearby Turkey,
for example. And for whom the slightest sign of solidarity is often the
thinnest, but the only, and the strongest, thread allowing them to survive of
the most important. A few weeks ago, you had tears in your eyes when we
listened to the moving speech of one of the last living prisoners of Auschwitz,
Marian Turski. Der letzte Häftling added a XIth commandment to the Decalog: “Thou
shalt not be indifferent. Because if you are indifferent, Auschwitz can fall
from the sky any day.” This is a Commandment addressed to each of us: “Thou
shalt not be indifferent.” The ghost of an authoritarian state stands at the
door of your home. It will not knock on the door. It will come in uninvited.
And it will stay a long time.
Wyrzykowski, Mirosław: The Ghost of an Authoritarian State Stands at the Door of Your Home, VerfBlog, 2020/2/26, https://verfassungsblog.de/the-ghost-of-an-authoritarian-state-stands-at-the-door-of-your-home/, DOI: 10.17176/20200226-105246-0.