ILS PAN has published a report by the MEMOCRACY team, which carried out the project under the direction of Dr Gliszczyńska-Grabias. The subject of the publication Memory Laws in Poland and Hungary : Report by the Research Consortium ‘The Challenges of Populist Memory Politics and Militant Memory Laws (MEMOCRACY)’is a comparison of so-called memory laws in Poland and Hungary.
Both Poland and Hungary are active players in the area of historical memory and legal governance over the past. Their history has always prompted those in power to use – and abuse – the past for political gain and for a power-consolidating effect. However, with the rise to power of populist and nationalistic forces, the tendency to support the one-sided, national heroism-oriented vision of the past became the official state policy in both Poland and Hungary. This presents the general observation that different ‘waves’ of memory laws and policies reflect different constitutional regimes and times of their implementation. Some come at the time of democratisation and coming to terms with the past (as in the case of post-War Germany), while others are characteristic of democratic backsliding (Poland and Hungary). In recent years, the move away from the standards of the European Convention on Human Rights in both states, the new constitution in Hungary, and the controversial memory laws in Poland have accompanied other adverse developments that today seem to leave Poland and Hungary on the edge of the European legal sphere.
Poland and Hungary share the matter of legal governance from the past, their focus on two core thematic areas and their still open wounds in national narratives about history: the tragic heritage of the Holocaust and the communist past. Thus, the commemoration of Nazi and communist crimes is the backbone of memory culture and memory laws in both Poland and Hungary.
Even though the two states (and legislators) use different tools to regulate these two areas of memory, it seems that the standard message behind these attempts is the same: to minimise narratives about the crimes committed by Poles and Hungarians during WWII and strengthen the remembrance of the communist past with strong emphasis on national victimhood. To a vast extent, the latter approach is understandable because of the lack of common knowledge outside the CEE zone about the nature and consequences of communist crimes. Still, measures taken in this respect need to remain in compliance with national and international legal norms. This particular Polish-Hungarian unity in reading and understanding the past was seriously broken in recent months by completely different attitudes towards Putin and Russia’s brutal aggression against Ukraine, with Hungary’s isolated lack of support for the sanctions and condemnation of the aggression. It is yet an open question if this position means that Orbán started to accept Putin’s vision of the past, particularly the role of the ‘Soviet heroes of the Great Patriotic War’.
The great importance of the past and history in public life means that Poland has always been open to legal mechanisms governing historical memory. However, in recent years under the PiS government, the struggle for historical truth or commemoration of victims and past atrocities has been primarily instrumentalised, becoming an excuse to try to legitimise actions intended to weaken, distort, or even destroy the essence of constitutional democracy. Furthermore, the official state historical policy has been focusing on self-exculpatory activities, including memory laws that can distort the understanding of the past and reinforce the belief in the historical heroism and martyrdom of the nation. New memory laws by which the state has chosen to pursue historical policy far more boldly restrict the rights and freedoms of individuals than before and, most importantly, they do not respect the established international standards of human rights law regarding freedom of expression and its proportionate limitations and the standards regarding a non-democratic past. The adequacy and proportionality of the mechanisms introduced into the objectives the set by the Polish legislator are questionable.
The defective, poorly drafted regulations have further distanced Poland from European standards of protection of human rights, provoked unnecessary memory wars, and contributed to the polarisation of Polish public opinion. The rule of law backsliding aggravates the negative impact of the new memory laws on human rights. In particular, the politically captured Constitutional Tribunal no longer provides a centralised constitutional review and delays adjudicating in ‘sensitive’ cases that are especially important for respecting human rights in Poland because of political pressure. In some cases, the Constitutional Tribunal’s persistent and unjustified inaction to pass judgement on motions regarding memory laws leads to delays in the administration of justice by the domestic courts.
Additionally, the risk of abuse of memory laws for discriminatory legalism and harassment of anyone who speaks up in the public interest, including through criminal and civil Strategic Lawsuits Against Public Participation, has dramatically increased in the current political and legal context characterised by mnemonic and penal populism. Revanchist enactment and application of memory laws add insult to injury. Polish democracy is at a crossroads, reflecting, more generally, the fragile state of Polish – for the time being – ever-backsliding democracy.
Meanwhile, Hungary’s law and memory relationship is one between particularity and commonness. FIDESZ’s high level of involvement in memory politics sets the country apart from most other states, which, while constantly being involved with collective memory, do not do this on the same level as present-day Hungary. The country’s government uses the past effectively as an instrument on various levels.
Such an approach to matters of memory is clearly seen in the country’s constitution – written anew by FIDESZ, it links the Hungarian past with its present and future. Despite its adoption as recently as in 2011, it has already been rewritten several times, including in order to clarify certain memory narratives propagated by the government. On the other hand, the country’s lustration and other decommunisation processes were comparable to those of other countries in the region.
As for the collective memory of the Holocaust, while Hungary punishes denialism, it not only also bans the denial of other crimes, such as communist and various totalitarian and fascist symbols, it also actively whitewashes the involvement of its population and authorities in WWII atrocities, supporting the ‘double occupation’ narrative.
This constitutes a part of a more significant phenomenon, with Hungary’s relationship with the past centred around four main themes, lying at the basis of the propagated official narrative: that of the continuity of the Hungarian state through the ages, that of the continuous relevance of the Trianon Treaty, the importance of the 1956 Revolution as the foundation of modern Hungary, and the (current) obliviousness to the circumstances of the 1989 transition. These are all used instrumentally by the government, which translates into FIDESZ’s education policies, with many changes to the national curriculum and the creation and recreation of a myriad of research institutions now tasked with conducting studies supporting the government’s official narrative.
While on the surface it seems that Hungarian memory policies are in line with the standards of the EU and the Council of Europe, their closer analysis shows that they are not only rather distinct but also in breach of the established standards, which is part of the FIDESZ government’s greater strategy of pursuing illiberal policies, with power over collective memory being their central element.
In accordance with the Party’s slogan in Orwell’s ‘1984’, whoever controls the past controls the future, and whoever controls the present is in command of the past. This seems to be true of all governing authorities which aim to impose official versions of history of their states and nations by spreading heroic myths and omitting or even negating difficult truths about former atrocities and wrongdoings committed very often against minorities or other nations. However, Orwellian reality remains fictitious, and even though the current ruling elites in Poland and Hungary have been very active in promoting the unilateral, often nationalist narratives about the past, including with the use of the law, these attempts have fortunately not been fully successful yet.
Authors: Aleksandra Gliszczyńska-Grabias, Grażyna Baranowska, Anna Wójcik, Mirosław Sadowski, Anastasiia Vorobiova
Revew: Prof. Dr Hab. Ireneusz C. Kamiński
e-ISBN: 978-83-66300-76-7
DOI: 10.5281/zenodo.8014240
Ilość stron: 76
The publication by the MEMOCRACY team is available in the Law e-Library under the Open Access model.
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