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December 14, 2019
Battle of Ideas

Adam Bodnar and human rights’  “internal revolution” – commentary by Jerzy Kwaśniewski

Adam Bodnar, Ombudsman of the Republic of Poland.

 

By: Marta Muszel, 

Jerzy Kwaśniewski

 

International expert bodies responsible for the unexpected development of the human rights doctrine are deprived of democratic legitimacy.

In recent days, the media and commentators have been reminding us of many reasons for criticizing the incumbent ombudsman. However, it is worth reflecting on them from a perspective of the profound changes in the human rights system, which Adam Bodnar patronizes, despite resistance and criticism from a growing number of circles. We are witnessing a silent transformation of the catalog of unchanging fundamental rights – the right to life, freedom, health, security, conscience and property, into an extended catalog of new rights, the aim of which is not to strengthen these guarantees, but to deeply transform society.

 

A SPOKESPERSON FOR WHAT RIGHTS?

 

During a conference held at the Polin Museum in November 2018, the Ombudsman expressed the concept of human rights that guides his realization of tasks by this constitutional body in the current term. The concept of human rights according to him, appears on the basis of his statements as an area of positive law (i.e., a concept that obliges or specifies an action – JCz), subject to the decisions of international bodies, and is based on two pillars – narrowly understood human dignity and non-discrimination. The guiding principle of human rights is the “respect for multiculturalism” and constant progress in this area sees results, where “over time, successive groups are strengthened by international protection”, including “the assumption that women are exposed to discrimination because of the patriarchal model of society”. Among the few references to the philosophy of law is the puzzling reference by the public defender of rights to the concept of a “militant democracy”, advocating restrictions on freedom of speech and political freedom for arbitrarily defined enemies of democracy as a justification for criminalizing hate speech. The overemphasis of multiculturalism and diversity is accompanied by a fascination with Scandinavian human rights institutions, including the right of the Scandinavian Ombudsman to impose penalties on private business entrepreneurs who fail to comply with the principle of equal treatment. This perspective on the development of human rights is to be culminated within five to ten years’ time by a convention regulating the status of LGBT persons. As might be expected, the most serious concern expressed by the Ombudsman is that “it is often difficult to explain to the broader public why it is necessary to protect the law in certain situations” and also “how to define the boundaries between rights and how to explain those boundaries to the public. For example, between hate speech and freedom of speech”.

 

WHAT HUMAN RIGHTS ONCE WERE…

 

Such a concept of human rights should be strongly resisted by both the actual content of the sources of international law and the decades of development of its doctrine, which until recently strengthened the list of fundamental rights as concerns the protection of life, health, freedom, security, conscience, and property.

 

First of all, contrary to the position of the Ombudsman, the essence of the post-WWII human rights system was not the legal positivist protection of equality, but a shift towards the search for standards that would implement the principles of justice after the dark night of legal positivism of Nazi Germany. Instead of the cult of the certainty of established law, which required obedience to statutory injustice, the meaning of human conscience, reason and the “conscience of humankind” has been rediscovered. (The Preamble to the Universal Declaration of Human Rights). Human rights, deemed superior to national law and established by each country’s respective parliaments, were to become a protective armor against the temptations of modern tyrants, including the tyranny of the democratic majority. Therefore, the most important of these rights, even in exceptional situations, must not be restricted. They were supposed to protect not only individuals, but also the family as a “natural and fundamental unit of society”. (Article 16 pt. 3 of the Universal Declaration of Human Rights (UDHR)), which has been clearly stated not only in the UDHR document but also in subsequent, binding international conventions that followed. Moreover, the authors of the UDHR noted that “everyone has duties to the community in which alone the free and full development of one’s personality is possible” (Article 29 pt. 1).

 

This specific ecosystem and the harmony of interdependent rights and obligations, which constitute norms superior to the competences of national or international legislators, originated in a direct line stemming back to the Roman tradition of the “law of nations” developed in the legal tradition until it was rejected by the positivists of the Enlightenment period.

The 20th century version of the idea limiting the arbitrariness of rulers with the inherent rights of subjects and their communities openly drew on Catholic inspiration. John XXIII called the Universal Declaration of Human Rights a “step forward” and the UN called for

 “the effective safeguard of one’s personal rights; those rights, that is, which derive directly from one’s dignity as a human person, and which are therefore universal, inviolable and inalienable”. (“Pacem in terris” pts. 144, 145).

 

…AND WHAT ARE THEY BECOMING?

 

Dr. Tymoteusz Zych notes that the human rights system is departing from its sources in the direction of what John Paul II called “the use of human rights against man”. Instead of 30 undisputed rights, there are now over 300, with the majority being battled over for recognition, while many countries perceive their promotion as an attack on their sovereignty.

 

The last few decades have seen a systematic re-evaluation of the concept of human rights. It is no longer the affirmation of the rights of unchangeable and natural institutions of social life that has become the essence of the international system of human rights, but the creation of rights that serve to build an utopian society liberated from pathologies (poverty, violence, inequality, war). By converting into small change the hereto authority of fundamental rights (as the original, narrow catalog of rights is starting to be called), a multiplication of laws improving the fight against national laws and customs has begun, which have been trapped in the supremacy of an international system within the framework of a changing content.

This operation was made all the more simpler because international expert bodies responsible for the unexpected development of the human rights doctrine are deprived of democratic legitimacy and their members create a narrow group independent of national governments and electoral processes.

 

THE ISSUE OF CRUCIFIXES IN EUROPEAN SCHOOLS

 

An example of stopping the open redefinition of fundamental rights was the famous Lautsi vs. Italy case concerning the display of crucifixes in a school classroom, which was initially unexpectedly lost by Italy in the European Court of Human Rights. The Court by way of the typical redefinition path derived the concept of “freedom from religion” from the guarantee of “freedom of religion” particularly as concerns education. Such a direct attack on Europe’s religious and cultural identity, however, led to massive opposition from many European countries party to the European Convention on Human Rights (ECHR), unambiguous resistance from the Catholic Church and the Greek Orthodox Church, as well as dozens of voices coming from European social organizations. The Grand Chamber of the Court overturned the widely criticized ruling by a surprising majority (15 to 2).

 

Marek Magierowski at that time noted in “Rzeczpospolita” immediately after the first ruling of the Tribunal, what Adam Bodnar, then acting in the Helsinki Foundation for Human Rights had stated: “The judgment handed down in the case concerning another country is an important signal of how the Court interprets the European Convention on Human Rights. (…) Therefore, if it is common practice in Poland to display crucifixes in school classrooms, Poland cannot be indifferent to the judgment in the Lautsi vs. Italy case. Furthermore, Poland should adapt its behavior to Strasbourg standards”.

 

After the publication of the judgment of the Grand Chamber protecting the presence of crucifixes in schools, Adam Bodnar’s voice was no longer so loud and unambiguous.

AN INCREASING PACE OF CHANGE

 

In other fields, however, the transformation of human rights is gaining momentum. Situations are occurring where contradictory regulations apply at the same time. The protection of the family as a “natural and fundamental unit of society” with guarantees of parental priority in the choice of teaching (Article 26 pt. 3 of the Universal Declaration of Human Rights, Article 13 pt. 3 of the International Covenant on Economic, Social and Political Rights, Article 18 pt. 4 of the International Covenant on Civil and Political Rights) coexists with the provisions of the Istanbul Convention, which mentions the “family” only in the context of a violent environment and requires the eradication of customs and traditions concerning the roles of women and men (Article 12) or the implementation of gender-compatible curricula at all levels of education (Article 14). In a similar way to the Lautsi case in 2018, where “freedom from religion” was derived from “freedom of religion”, the United Nations Human Rights Committee denied the original meaning of the principle of “every human being having the right to life”, from which it derived the right to abortion. Sometimes there are caricatured attempts to reconcile contradictions, as in the positions of the Committee on the Rights of Persons with Disabilities, which supports abortion on demand, while opposing the legalization of the killing of unborn children solely on the grounds of their disability.

 

A CHAMPION OF PROGRESS 

 

Adam Bodnar is fully committed to supporting the “internal revolution” of human rights. Its goal is no longer to protect universally consensual fundamental rights and a very focused, values-oriented defense against arbitrary lawlessness of those in power. The goal of the new human rights system is to transform society into a progressive utopia, and this paradoxically requires a strong state capable of marginalizing various groups of people resistant to revolutionary trends. If this force cannot be placed in the hands of irresponsible governmental authorities, pursuing the will of a democratic but conservative sovereign,

the system of international and supranational organizations will need to be strengthened. Hence, the extraordinary activity of the Ombudsman as an animator of international criticism of Poland and the reforms of the justice system that have been carried out in our country.

 

In our capacity as observers or guests at meetings of the EU Commission or the Council of Europe, we have often encountered an unacceptable argument. Recalling the German or Scandinavian models, we pointed out the overwhelming role of the executive power of these countries in the appointment of judges. In response, we heard the following response, repeated like a mantra, that “the Polish model seems to be going in that direction, but the lack of a sufficient culture of Polish democracy imposes the implementation of more rigorous instruments of independence of the judiciary”. This tone resonates in the statements and actions of Adam Bodnar, who is ready to accept the Norwegian Rafto Prize “for taking a firm stand in face of the current political situation in Poland” but hasn’t uttered a word of criticism in the face of the growing harm to Polish families hounded by the Norwegian Barnevernet system. He is fully committed to supporting the rights of adult economic immigrants, but is not interested in Denis Lisov escaping with his daughters from Sweden and being pursued for the protection of his family by way of a European Arrest Warrant.

 

NEW HUMAN RIGHTS?

 

Meanwhile, Polish society by and large stands by the traditional concept of human rights as a guarantee of fundamental rights, the most important of which are rights to the protection of life, health, freedom, conscience and security.

 

We therefore have a common sense of dissonance when, in a high-profile case of the cruel murder of a 10-year-old girl, the Ombudsman focuses his attention not on the victim, her family and her right to security, but on the alleged oppressiveness of the coercive measures used by the police in apprehending the suspect. The inappropriate hierarchy of rights is a simple consequence of their continuing reassessment and ideological instrumentalization. The Ombudsman once is in favor of new rights for LGBT political circles or defends the possible perpetrator of a cruel murder, and is about to propose a restriction on the constitutionally guaranteed right of parents to decide on the upbringing of their children in the field of sex education. The common denominator of these seemingly contradictory actions is the goal of using his public function to push through the political demands of the radical left. Against this background, it should not be surprising that Adam Bodnar supports the international trials brought against Poland in order to undermine the definition of marriage as a union between a man and a woman, directly articulated in Article 18 of the Constitution of the Republic of Poland, while at the same time, absolutizing the restrictive interpretation of constitutional principles when it comes to the evaluation of the reform of the judicial system. It is also worth comparing the Ombudsman’s appeal against the decision and the subsequent ban on the Pride Parade in Rzeszów with his inaction, and even his advice given to the President of Warsaw in connection with the preventive ban of the Independence Day March. It is also worth noting that the Constitutional Tribunal will soon decide whether the Commissioner for Human Rights was correct in bringing about the decision of guilt of the Łódź printer who, using his fundamental freedom of contracting, refused to produce promotional materials for the “LGBT Business Forum” foundation.

 

As a fighter for the reformatting of human rights, Adam Bodnar is ready to move even further with his redefinition list of fundamental rights to safeguard social order. He has engaged his office in undermining the constitutionally confirmed identity of fundamental rights in order to promote controversial ideologies that tear apart the constitutional axiology. Only by becoming aware of the direction of change can we stop the “internal revolution” before a broad catalog of new, secondary rights finally stifles the basic guarantees of our unchanging rights and freedoms.

 

The author is an attorney and President of the Institute for Legal Culture Ordo Iuris

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Source: “Rzeczpospolita” newspaper

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