The Lustration with Two Heads and the Myriapod Transitional Justice in Romania

1. Introduction

As matters currently stand, there are two bills on lustration and decommunization in Romania waiting for modifications and further advancement to the status of Lustration Law in one case, and of Anti-Nomenklatura Law in the other. Worthy of note is that the lustration bill fights on two fronts ? both lustration and decommunization ? hence the presence of the metaphor ?lustration with two heads? in the title. The second part of the title refers to the broader context in which the battle for lustration/decommunization is fought in Romania. This context is the multiplication of the institutions accredited by groups of politicians of different party calibre as autochthonous ?truth revelation/investigation commissions.? Last year’s clash between the president and the prime minister on the topic of Communism gave rise to two ?truth investigation commissions,? a presidential commission and a governmental institute. In meantime, smaller magnetic poles on the political scene manifested their interest in bringing up ?checking commissions? of the ?truth of investigation commissions.? Others, in a defensive and preventive manner, point non-constitutionality of the still pending legislative lustration proposals, as well as their political abuse.

1.1. Hypothesis

The inquiry aims to explore the way the current debates in Romania on defining the categories of exactly which agent or collaborator fell under the disclosure and prospective lustration drives, bear upon the strength of their legal implementation. More to the point, the paper traces the evolution of the concept of ?collaborator of the Securitate as a political police? in Romania, in the legal texts and the debates that dawdled the opening of the authoritarian regime?s secret police files and the issuing of the legislative proposal on lustration.

For this purpose, it also brings forward (however in a rather tangential manner) the carrier of the homologous German concept ? the ?unofficial collaborator.? Briefly stated, what is noticed in the Romanian case regarding the supporters of the lustration drive, is lobbying for loosening the indicators that qualify somebody as collaborator. According to them, this is an imperative, if the disclosure drive is to be carried out properly. Whilst in German case, the experience with disqualification brought about the strengthening of the criteria of decreeing somebody as former collaborator, especially in cases where it could have lead to disqualification.

The paper attempts to explain the Romanian case by the fact that the disclosure drive, unlike in Germany, produced visible victims mainly among figures from the political arena. Those disclosed as former collaborators tried ? and often managed ? to prove that even though they can be regarded as collaborators of Securitate,[1] they have not committed political police acts. The distinction is important, as for the purposes of disclosure evidence is required that somebody conducted political police activities, and not solely that he had collaborated with the Securitate. Furthermore, the ?octopus phenomenon/effect? (see the discussion later on in the paper on the term taken over from Maria Łoś[2]) did nothing but amplified the echoes of any disclosure and especially of the attempts to ?feign? disclosure. From this point on, the solution envisaged is that there are no innocents in collaboration or the intent of collaboration with Securitate. The lustration drive as such is also not indifferent to the debate, given that it directly adopts the ?disclosure victims.?

But before opening the discussion on the lustration drive in Romania I will present sketchily some remarks regarding the anti-collaborator drive in the broader post-Communist context.

1.2. The anti-Collaborator Pledge of Disclosure and Lustration

The article sets out with the assumption that there are three sorts of anti-passions that inspire the drives of disclosure, lustration and decommunization. These are the anti-Securitate, the anti-collaborator[1] and the anti-Communist ones. If the distinction between lustration and decommunization pertains ? i.e. lustration is concerned with the political police files, whilst decommunization is concerned with the cadres? dossiers ? than both disclosure and lustration are mainly anti-collaborator and anti-Securitate, whereas decommunization is anti-Communist.

The decision to focus on the anti-collaborator drive in the present paper is somehow bound to an assumption that can be derived from the literature on post-Communist transitional justice, according to which there is a prevalent interest ?in the region? to comply with the anti-collaborator request, rather than with the anti-Securitate or anti-Communist ones. There are reasons to believe that the assumption is based on high media coverage of disclosures of the collaborator past of high-profile public figures. But it is also revealing to raise for discussion the would-be criteria of assessing the efficiency of the process of transitional justice, so much so as it is still pending. In analyzing the transitional justice process as it is carried out in Central and Eastern Europe, Lavinia Stan[4] remarked the tendency to put emphasis rather on its quantity then quality. That is the quantity

of secret files made available publicly, of informers unmasked, of communist officials lustrated, of court trials initiated, of former secret agents retired to the detriment of the quality of the process (unveiling those who masterminded repression more than those the part-time spies, identifying and lustrating the „big sharks” more than the „small fries,” or distinguishing between degrees of involvement and degrees of guilt).[5]

However, to what extent this can be held as evidence of the fact that the process of transitional justice put the cart before the horses it is not a matter of concern for the present analysis. For the purposes of this paper it must be stated that in Central and Eastern Europe, the agenda of political justice pursued not only punishment and anti-A, anti-B or anti-C- sort of drives, but symbolic compensation as well. And close to this symbolic compensation there is also a more controversial issue of material compensation. In Romania, for one, granting of certain material privileges to the 1989 revolutionaries lead to a suspicious inflation of the revolutionary certificates that have been issued and also scandals around the selling of the properties received as compensation from the government. The phenomenon reached such proportions that against the background of the ?vulgarization? of the notion of ?hero of the revolution,? an Association of Revolutionaries without Privileges was eventually created.

Getting back to the issue of anti-collaborator thought, according to Stan[6] the pre-eminence of the ?ordinary spy? in the pantheon of anti-symbols in post-Communism amounts to the seventh position in the series of ten myths she identified as nourishing the debates around transitional justice in the region, i.e. Myth no 7 ?Spies Were Guiltier than Party Officials.?

If we take a specific case, like that of the former Democratic Germany for example, we see that the anti-collaborator drive had been also encouraged by the lack of a legal framework to sustain clear, en-gross, anti-Communist measures, or the difficulty to build such a framework.[1] Furthermore, former communists, even more so than former political police agents, seem to be favoured by the fact that nowadays it is difficult to allocate clear responsibility.[8]

According to Miller,[9] in the case of Germany, the less realistic anti-Communist drive privileged the pursuit ? on the part of society ? of ?personal clarification (Aufklärung) of the hidden forces that had blighted people?s lives for so long.? And hence, also the role of Gauck Authority has to be evaluated against ?secret relationship as its target.?[10] And this spring of ??revealing? of supposedly secreted knowledge? according to Ruti Teitel[11] irrigates all the narratives of transition, be they Latin America?s truth reports or post-Communist lustration for that matter. This issue takes us to the problem of truth, fear and surveillance in Communism. At first blush, everything happens as if the paradigm of the pre-eminence of the