IN TRANSITIONAL-JUSTICE CONTEXT
Delivered on 5 May 2005 at the Harvard Ukrainian Research Institute
Published in Ukrainian translation in Krytyka, November 2005
2006 Note: Hotlinks to other Jurlandia writings added.
Lustration is a sub-topic within the broader subject of “transitional justice” or “historical justice” (as it is sometimes called). Understanding lustration requires consideration of that broader context.
Transitional-justice problems arise whenever a country, in seeking to make the transition from tyranny to democracy, must determine whether — and, if so, how — to identify … and, where appropriate, to penalize … those who led, collaborated with, or unfairly benefited from that previous tyranny.
The focus is upon righting historical wrongs, identifying and punishing the major culprits of a shameful past, and moving towards a hopeful future based on Open Society values, individual and institutional accountability, and constitutional democracy upholding the Rule of Law.
“Rule of Law” is more exacting than “rule by laws” in the same sense that a government “under” law is healthier than a government which uses law as an instrument for controlling its subjects but not itself. A sustainable constitutional democracy must be governed by a hierarchy of abiding values — including standards of fairness and rationality encompassed in the phrase “Due Process of Law” — which, on principle, no “government” worthy of that word may lawfully change or ignore.
And one of the most important of those Due Process standards is non-retroactivity: People are entitled to prior notice of the law’s requirements. Unknowable law is absurd, and hence is lawless. Conduct that was allowed or required yesterday cannot be lawfully punished today. Yet life is complicated, especially in countries crawling out of the quagmire of tyranny, and seemingly-simple standards like non-retroactivity are far from simple when subjected to deep examination based on previous efforts at practical implementation.
For example, retroactive applications of criminal laws, or laws of similar nature (including laws whose penalties can include loss of a profession or livelihood), should be avoided unless the behaviors they condemn are independently reprehensible — that is, they must violate fundamental standards of decency reflecting generally-recognized imperatives of civilized conduct. That last phrase is indeed a mouthful. Let me try to illuminate it with a hypothetical case that builds upon Professor Lon L. Fuller’s classic gem, The Problem of the Grudge Informer. You can find this famous hypothetical in Fuller’s book, The Morality of Law (rev. ed. 1969). It is also available on the Internet. I highly recommend this hypothetical to any serious student of transitional justice.
The “Purple Shirt” tyranny followed a period of democratic, law-based normalcy. Let us suppose that, under the constitution — which was not explicitly repealed even though it was generally ignored by the Purple Shirts — freedoms of inquiry and of communication were guaranteed. Notwithstanding, the Purple Shirt regime, by presidential decree, outlawed listening to foreign news broadcasts. Indeed, this offence was punishable by death.
During that tyranny, Albert secretly listened to such broadcasts. He was thereafter arrested, prosecuted, and executed based on information supplied to the Purple Shirt regime by his neighbor, Bob, who thereafter courted and married Albert’s wife, Cathy.
After the Purple Shirt regime was overthrown, Cathy learned of Bob’s role in causing Albert’s death. She immediately sought to have her marriage to Bob annulled, asserting that her consent to marry him was fraudulently obtained because she would never have agreed to marry Bob if she had known of his role in causing Albert’s death.
Cathy’s suit for this annulment thereupon triggered a criminal prosecution of Bob for the murder of Albert. In essence, the “transitional justice” regime that followed the Purple Shirt tyranny asserted that Bob used the Purple Shirt’s unconstitutional prohibition against listening to foreign broadcasts to get rid of Albert so that he could marry Cathy.
Now, among the many thought-provoking issues  raised by this hypothetical case, the one I want to highlight here is that even if we accept, for purposes of argument, that what Bob did was permitted by the Purple Shirt regime, we might nonetheless condemn this conduct as being independently reprehensible because it violated fundamental standards of decency reflecting generally-recognized imperatives of civilized conduct.
We might even conclude that Bob had “constructive prior notice” that what he was planning to do — turning in his neighbor Albert for engaging in conduct whose lawfulness was guaranteed by the constitution — was so morally reprehensible that, well, it ought to be unlawful … and in any civilized state (so the argument goes) it would be a crime. Premeditated conduct causing another’s death so as to advance a sordid, selfish, lustful scheme, cannot go unpunished. Bob must have known this. He cannot assert lack of prior notice. It would violate a “higher law” for us to allow him to thus pervert Due Process requirements in this way.
Put differently, perhaps, we should support Bob’s prosecution for murder in order to serve notice to anyone in the future — to warn of the direst consequences that will follow if anyone takes advantage of state lawlessness so as to destroy another for personal gain, as Bob destroyed Albert so as to marry Cathy.
For these reasons, we might agree — albeit reluctantly — that Bob’s prosecution for murder does not violate Due Process prohibitions against retroactive applications of criminal law. Bob knew, or should have known, that his conduct was contrary to legal standards that transcend and ultimately trump Purple Shirtism. This, in essence, was the argument supporting the Nuremberg Trials. The defendants complied with the German law in force at the time, yet they violated a higher law, a law they knew or should have known would ultimately trump Nazi lawlessness.
But prosecuting Bob presents a comparatively easy problem. Suppose, instead, that Albert had been denounced to the authorities by a busy-body neighbor, based purely on this neighbor’s idealistic commitment to the Purple Shirt cause? Or suppose that Albert had been arrested following an investigation by agents of the Purple Shirt’s Internal Security Apparat? Would we be as supportive of murder prosecutions against dedicated, albeit misguided, neighbors and government agents? Maybe we would, but we would likely agree that these agents were less evil than Bob was.
Surely much turns on detailed investigations, including an assessment of precisely what law ought to prevail with reference to judging particular conduct at specific times. For example, a country like Ukraine might currently find itself focusing on important distinctions between the legal standards that governed before 1991, and after — especially after Ukraine officially adopted European human rights standards. Arguably, those standards — for example, governing fair prosecutions and trials, or free and fair elections — provided due notice to Ukrainian officials, and ought to be used in judging whether to prosecute abuses that the European Court of Human Rights has condemned without ambiguity during the past decade.
With this introduction to transitional justice generally, let us now focus on lustration specifically.
The word “lustration” in its modern meaning arose in Czechoslovakia around 1989 to denote compiling and/or consulting a database to see whether it contained information about an individual. Subsequent controversies regarding who could access such databases, and whether secret-police inventories naming communist-era collaborators were reliable or should be generally available, morphed the meaning of “lustration” to suggest that a person who was “lustrated” had (or might have) a shameful past, especially as a secret-police collaborator during the Czech Republic’s communist past.
Perhaps because this word had an etymological association  with the ancient Roman ritual of purification, “lustration” morphed further and took on post-1989 overtones of “political house cleaning” in the sense of vetting or even barring from public office those who played significant roles in support of the communist regimes in Czechoslovakia and, in due course, other East-European countries. The word has now gained worldwide currency, although its meaning remains unsettled. As a minimum, all apparently agree, it refers to vetting current or prospective officials to determine whether they must, or should, or might be ineligible for appointment or election to high (or any?) public office.
Although “lustration” implies making publicly known what was previously secret, the term is easily confused with “decommunization”: vetting or barring from office those who were closely associated with the communist regimes, regardless of whether that association was open or secret.
The term “lustration” is also sometimes applied to barring persons not only from governmental service — whether legislative, executive, or judicial — but also from quasi-governmental or non-governmental professions such as practicing law, teaching in a university, or presenting news on television.
These distinctions and confusions are important, but they should not be unduly emphasized. Rather, discussions of lustration should focus on such issues as the following:
(1) whether a public official or a candidate for high office, etc., should be vetted and judged based on past associations and activities;
(2) whether such associations and activities violated positive (enacted) law or otherwise violated fundamental standards of conduct that somehow transcend positive-law requirements;
(3) whether, or under what circumstances, it should make a difference that a person acted openly or acted clandestinely;
(4) whether the lustration or vetting process should itself be secret or public;
(5) whether this process should result in a public record, including official findings and conclusions as to each vetted individual;
(6) whether such conclusions should be subject to judicial or appellate review;
(7) whether a person’s “shameful activity” was especially morally repugnant and caused great harm to others or to society, and — if so — whether it should result in a conventional criminal prosecution, not mere lustration; and
(8) whether a person’s “shameful past” should result in an absolute bar to future high office or merely be considered as one of several issues in determining his or her fitness for such office.
The above issues must be addressed in terms of the goals of lustration. While people differ in prioritizing them, almost everyone agrees that a major goal is, quite simply, illumination — truth as a good unto itself and as the foundation for open, accountable governance.
First, people have a right to know the truth about their tyrannical past. Second, people have a right to know the truth about those who aspire to be their leaders, and this includes the right to know whether public accusations against specific individuals are true or false. Third, people have a right to know whether an official or a candidate for high office has lied about past activities or associations.
To many, it is of perhaps greatest importance that all officials “come clean” about their past; if they do, then they should be forgiven or at least treated leniently; if they do not come clean, however, then they should be liable to penalties — including, in egregious instances, to prosecution for lying or even (in some contexts) for the abusive conduct which they dishonestly denied.
Such “lustration” does, indeed, emphasize “purification” as part of the larger goal of reconciliation. In this regard, South Africa’s “Truth and Reconciliation” process is often cited as a model.
Another goal of lustration that is often cited is the necessity to bar from office those who participated in or collaborated with communist oppression … or, indeed, post-communist oppression. Some would bar them for a period of years, even for a decade, or perhaps for life. This, it is asserted, allows society to make a decisive break with its oppressive past. Yet it also carries elements of an oppressive future in which personal redemption and new beginnings are devalued. Guilt by association is especially unfair, it would seem.
Some urge that lustration is essential for national security, if only to keep former officials and secret collaborators from being blackmailed or forced into acts of disloyalty. If you have already told all, you have nothing to hide and, hence, you cannot be blackmailed or induced to betray the public trust.
Finally, a formal and systematic lustration program is favored by some as an alternative to so-called “wild lustration” in which charges are hurled hither and yon, often for nefarious political purposes. This not only smears the innocent, it also debases public debate.
All the above goals and considerations require that, if lustration processes are undertaken, they must be scrupulously lawful — pursuant to legislation that balances numerous contrasting and even conflicting values. The medicine of transitional justice, and especially of lustration, must be carefully calibrated, balanced, focused less on curing past maladies than on securing future health.
Those who create and perpetuate tyrannies condemn their countries to a long and troubled nightmare. The waking process can be slow and fraught with reality-testing confusion. It is as though the previous regime scattered landmines over both the landscape and the mindscape, daring those who must establish transitional justice to untangle and dismantle the effects of old injustices without triggering chain-reactions of new injustice. No metaphor can suffice. It is what it is, and it is messy at best.
One wonders whether tyrants ever ponder who will clean up the messes they leave behind. We live and learn — but oh, the costs of this education!
 For example, whether an annulment ab initio is proper (in which case the court might have to rule that the marriage existed only for a scintilla of a second, just long enough to give the court jurisdiction to declare that there never was a marriage) or whether, in contrast, a divorce is proper. In an annulment situation, almost certainly, Bob must return to Cathy any and all properties he may have obtained during his purported marriage to her, especially where that property might have belonged to Albert before his execution. These and many similarly-complex “unscrambling the eggs” issues, especially relating to arguably-vested interests in property obtained during the previous tyranny, are a major aspect of transitional justice. They often have no bearing on lustration, as such. As a general point, I suggest that often “unscrambling eggs” takes up valuable resources that might better be devoted to building more henhouses and producing more eggs. A long-ago mansion might have been an orphanage for the past 50 years; does the original owner have vested interests that trump those of the orphanage, and of those who devoted a lifetime to converting the mansion to serve homeless waifs? [Go back]
 According to the Wikipedia online encyclopedia, the word “lustration” has long meant “a sacrifice, or ceremony, by which cities, fields, armies, or people, defiled by crimes, pestilence, or other cause of uncleanness, were purified.” See https://en.wikipedia.org/wiki/Lustration (4 May 2005). The source there offered is the (Merriam) Webster’s International Dictionary of the English Language (1904). [Go back]
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