Preventive counter-revolution. On the draft amendment to the Penal Code

On August 4, the opposition-controlled Polish Senate rejected the government’s amendment to the Penal Code. The bill is now returning to the Sejm, where the government coalition has the necessary majority to nullify the Senate’s veto. The amendment, which increases criminal penalties and the repressive nature of the state, largely duplicates the solutions proposed in the government’s draft of the Code from 2019. The bill was then declared unconstitutional by the Constitutional Tribunal for procedural reasons (the bill was pushed through the Sejm in 2 days).

As then, the project provides for the introduction of a legal basis for political repression against communists. The key is to amendment Art. 256 of the Penal Code, which now reads:

§ 1. Whoever publicly promotes a fascist or other totalitarian system of state or incites hatred on the basis of national, ethnic, racial, religious differences or due to lack of religion, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

§ 2. The same punishment shall be imposed on anyone who, for the purpose of dissemination, produces, records or imports, acquires, stores, possesses, presents, transports or sends a print, recording or other object containing the content specified in § 1 or carrying fascist, communist or other totalitarian symbolism. [By the verdict of the Constitutional Tribunal it lost power, in part including the words „or carrying fascist, communist or other totalitarian symbolism”].

It was on the basis of this article that members of the legally registered Communist Party of Poland or the Trotskyist portal „Władza Rad”, among others, were repressed. The repressed were accused of promoting „other totalitarian system of state”. These actions were unsuccessful, because the persecuted nowhere called for the use of methods considered „totalitarian”.

In the government draft amendment, the above provisions take the following new wording:

§ 1. Whoever publicly promotes a Nazi, communist, fascist or other totalitarian system of state or incites hatred on the basis of national, ethnic, racial, religious differences or due to lack of religion, shall be subject to penalty of deprivation of liberty for up to 3 years.

§ 1a. The same punishment shall be imposed on anyone who publicly promotes a Nazi, communist, fascist ideology or an ideology calling for the use of violence in order to influence political or social life.

§ 2. The same penalty shall be imposed on anyone who produces, records or imports, acquires, sells, offers, stores, possesses, presents, transports or sends a print, recording or other object containing the content specified in § 1 or 1a or being a carrier, for the purpose of dissemination, of Nazi, communist, fascist or other totalitarian symbolism used to promote the content specified in § 1 or 1a.

In the new wording, communism is explicitly identified as a totalitarian system, the propaganda of which is forbidden, and the punishment for which is significantly increased. In addition, there is a new paragraph 1a, which prohibits the propagation of ideologies inciting the use of violence, including communist ideology. At the same time, the government is trying again to ban communist symbolism.

In the justification of the amendment, the authors of the draft indirectly admit that the changes are dictated by the failure of the previous attempts at anti-communist repression. It reads:

Therefore, the draft provides for a change in Art. 256 § 1 of the Penal Code consisting in indicating expressis verbis the hallmark of public promotion of the Nazi or communist system. Although these regimes should be regarded as totalitarian, and thus constituting designates of the current hallmark of „other totalitarian system”, it is necessary to specify them in order to confirm by statute and emphasize that they constitute totalitarian regimes whose public promotion will be punishable even if the promoter does not refer to historical emanations of them (e.g. Stalinism, Bolshevism), but publicly propagates e.g. the communist system described in Marx’s books. The draft confirms the social harmfulness of the public promotion of such systems, and indicates that the legislator considers the public promotion of the communist system to be as dangerous as the promotion of the fascist and Nazi system – for the proper functioning of the state in accordance with democratic principles, for social peace and for the formation of correct social and historical awareness.

The authors argue that the „communist system” falls within the scope of „other totalitarian systems”. If this is the case, why change the rules? The government may babble about the need to „specify”, „confirm” or „emphasize”, but it is clear that it is trying to quietly push through among numerous changes, without public debate, provisions enabling anti-communist repression that didn’t exist before.

The government drew conclusions from the fiasco of the persecution so far. Since neither the CPP nor the WR referred to the practices of Stalinism, government changed the regulations in such a way that it would be enough to refer to the „communist system described in Marx’s books” (the fact that the communism described by Marx is stateless does not seem to hinder its classification as a totalitarian system). It is worth noting here that the authors of the draft – contrary to their argumentation a little further in the same justification – admit that there is a difference between Marxism (and the vision of communism promoted by it) and Stalinism.

References to Nazism should not confuse us, they camouflage the anti-left character of the amendment. The argument for changes focuses on the difficulties of anti-communist repression. Besides, there was no problem with the conviction of Nazis under Art. 256, as evidenced by the case of the group that celebrated Hitler’s birthday. If there was an impunity for Nazi propaganda, it was only because of the government’s support (e.g. the prosecutor general’s intercession for the detained members of the National-Radical Camp (ONR), chanting racist slogans under the government’s patronage at the Independence March, official support of the Ministry of Interior and Administration for the neo-Nazi terrorist Janusz Waluś).

The addition of Nazism to the list of „totalitarian systems” has another, potentially sinister, consequence. Until now, Nazism could be interpreted as a German form of fascism. In the proposed wording, fascism and Nazism become separate phenomena, not national variants of the same phenomenon. The term „fascism” can be reduced in practice to describe the political system and ideology of Mussolini’s Italy. This may leave the door open to impunity for propaganda of, for example, Francism or National Radicalism (which would certainly please the pets of the prosecutor Ziobro). The new changes would not, therefore, mean – contrary to the claims of their authors – the curtailment of far-right propaganda, but its protection (it is enough not to refer directly to Hitler and Mussolini).

However, changes are not limited to expanding the category of „totalitarian system”, there is also a ban on „propagating ideology„. Here is its rationale:

The implementation of the above objective is complemented by the introduction of Art. 256 § 1a of the Penal Code, which criminalizes the public promotion of Nazi, communist, fascist ideology or an ideology calling for the use of violence in order to influence political or social life. There is no doubt that totalitarianism has two constitutive elements – the state system and the ideology that legitimizes it. (…)

It is indicated in the doctrine that ideology leads to the formation of a system, creates its foundations and constitutes its justification. The political system is, therefore, a consequence of ideology, and not the other way around (M. Budyn-Kulik, op. cit., s. 14; M. Kalitowski, [in:] Kodeks karny. Komentarz, ed. M. Filar, Warszawa 2016, p. 1445; R. Tokarczyk, Rozważania nad pojęciem ekstremizmu, Annales UMCS, Sectio G. Ius 50/51, 2003/2004, p. 273).

The opinion that the political system is a consequence of ideology can be argued against. In 1917, Lenin stood on the standpoint of Soviet democracy, and a month before the storming of the Winter Palace, he was predicting that the Soviet system would be multiparty and that different parties would freely compete for government power. For some time after seizing power, the Bolsheviks remained in a coalition with the Left Socialist-Revolutionaries. The Bolsheviks banned other parties only when they tried to overthrow the Soviet power. As late as 1922, at the 11th Congress of the party Zinoviev, representing the Central Committee, envisaged the possibility of future legalizition of parties that would accept the system of Soviet democracy.ⁱ After the Bolshevik victory, the processes of bureaucratization and replacement of the workers’ dictatorship with the dictatorship of the nomenclature gradually progressed. Lenin tried to resist those trends whose political representative was the clique around Stalin. After his victory, Stalin tried to justify the dictatorship of the bureaucracy by invoking … „Marxism-Leninism”. None of the Bolsheviks in 1917 foresaw that the fruit of their actions would be what was later referred to as Stalinism. Can we then say that the Stalinist system of the USSR was the inevitable consequence of Bolshevik, Leninist, Marxist ideology? (As noted above, even the authors of the draft must admit that there is a difference between the postulates of Marxism and the practice of Stalinism.)

Besides, wasn’t one of the characteristic features of Stalinism precisely the hypocritical gap between the declared egalitarian, libertarian, and democratic ideology and the reality of despotism and bureaucratic privileges? (This was one of the differences between Stalinism and fascism, which openly promoted the cult of The Leader and contempt for democracy.) So how was the political system a consequence of ideology?

If we continue to reason according to the logic of the draft’s authors, we will come to even greater absurdities. Karl Popper in the anti-communist screed „Open Society and Its Enemies” sees the sources of „totalitarianism”… in Platonism. Karl Wittfogel in his Cold War work „Total Power” put under one umbrella the Stalinist USSR, Maoist China, Pharaohs Egypt, ancient China and the Roman Empire. Putting aside the value of these „works”, we have the right to ask the question: do Plato’s „Laws”, Confucius’ „Analect” or Marcus Aurelius’ „Meditations” promote – in the sense of the proposed amendment – a totalitarian ideology?

We should not, however, cling too much to the flawed logic of the philosophical arguments of the amendment’s authors. They are not the actual cause of the criminalization of „totalitarian ideologies”. This justification is revealed further:

In this context, there is a loophole in the current law, as only the public promotion of one of the elements of totalitarianism (the system) is punishable, while the public promotion of a totalitarian ideology has not been identified as a crime. (…) It is also emphasized that “ideology is also easier to verbalize, it shapes attitudes, and it influences, among other things, through emotions. Its social harmfulness is therefore higher than that of the system itself. In addition, the promotion of the system understood strictly as the entirety of legal principles defining the organization and functioning of state organs, the mutual relationship of central organs and their relationship to local organs, as well as the legal and organizational structure of the state appears to be much rarer behavior than praising or promoting ideology” (M Budyn-Kulik, op. cit., pp. 14-15). In this context, it is justified to criminalize the public promotion of Nazi, communist and fascist ideology, which will complement the regulation provided for in Art. 256 § 1 of the Penal Code.

So we see again that the changes are motivated by the failure of political repression within the law. None of the persecuted communists promoted „totalitarian” systemic practices, so the bourgeois state uses legal solutions that enable repressions simply for their worldview.

Propaganda of the „communist system described in Marx’s books” would be banned, the propaganda of the „system justifing” ideology would be banned, and any legal anti-capitalist propaganda would indeed be impossible. By removing the possibility of legal activity, „the project also criminalizes the public promotion of an ideology calling for the use of violence in order to influence political or social life” due to the „external and internal security of the Polish state” (the government clearly follows the example of allied Ukraine).

To hide that they advocate prosecuting people for their views, the authors argue:

„Ideology differs from a worldview because its subject is a social group, and the subject of the worldview is an individual, a man who, by following a specific ideology, introduces individual properties into it. Ideology is closely related to politics because it constitutes the political basis of the program of action and unites the political movement” (Z. Klimczuk, op. cit., p. 248). In order to commit the proposed crime, it is not enough to publicly promote only one’s own worldview calling for the use of violence in order to influence political or social life, if it is not an ideology, i.e. views supported by a given social group (e.g. a social movement), and not only by a single person.

And regarding „carriers of the symbolism of totalitarian ideology” they add:

The carriers of Nazi, communist, fascist or other totalitarian symbolism must be used in a way that promotes a Nazi, communist, fascist or other totalitarian system or ideology, and the perpetrator must act to disseminate it. The above limitation in the form of the necessity to use carriers of Nazi, communist, fascist or other totalitarian symbolism in a manner serving the public promotion of a Nazi, communist, fascist or other totalitarian system or ideology causes that there is no doubt that the proposed provision meets the requirements of linguistic specificity.

The distinction between the criminal propaganda of ideology and the permitted propaganda of a worldview is introduced „according to life experience, meaning in social perception and the context of their use in a specific factual state”, that is, arbitrarily and according to the political needs of the bourgeois state.

The proposed amendment to the Criminal Code should be treated as a preventive counter-revolution. All over the world, exploited classes feel an exacerbation of poverty and distress. Interimperialist contradictions are heightening, resulting in an increasingly aggressive foreign policy of the great powers. In a situation of deepening crisis of the international capitalist system, the ruling class must arm itself with the means necessary „for the proper functioning of the state in accordance with democratic principles, for social peace and for the formation of correct social (…) awareness„, i.e. to fight the potential resistance of the exploited classes.

However, persecution cannot effectively solve objective social and economic problems. You can’t put inflation in jail. The verdict of the court will not stop the disintegration of the current world order. A police raid will not intimidate the falling rate of profit. With repression, the bourgeoisie will not stop the crisis of overproduction.

History has assigned us – Polish anti-capitalists – a difficult task in conditions of potential illegality. On the other hand, she condemned the bourgeoisie to annihilation. She is on our side. After all, history is much more just than the bourgeois courts.

i„I say that we are the only legal party in the country, that we have, so to speak, a ‚legality monopoly’; it is offensive to party patriotism, but let us say more clearly: we have a ‚legality monopoly’, we have deprived our opponents of political freedom. (…) We did the right thing and we cannot do otherwise today, and no one can say when the time will come when we will be able to revise our view on this matter. Perhaps it will happen when we finally strengthen ourselves and are not surrounded on all sides by the bourgeois element „(„XI Zjazd RKP(b). Stenogram”, KiW, Warsaw 1971, p. 531)