Vice-president’s of the Constitutional Court Sanita Osipova’s speech at the international summit “World without Walls” dedicated to the 30th anniversary of the fall of the Berlin Wall.
The Freedom after Freedom
Berlin 8th of November, 2019
Having reached a certain age, I have the privilege to remember. To remember what? I lived the experience of summer of 1989 in Riga and Berlin. In Riga was happening what we call Atmoda [Awakening]. People were happy and dizzy as would be anyone who is suddenly exposed to a bright sunlight after a long period of darkness. You could actually feel what is Freedom with your senses these days. The freedom meant the end of the occupation, restoration of the independence of the State, and the breaking out of the control exercised by the foreign enemy power which was behaving in an obsessed and arbitrary way. The previous regime kept a close eye on every individual and set narrow limits of what you could do, the sanctions for crossing these limits were real. The Freedom for us was, first of all, the breaking out from the slavery and the right to self-determination as a free country and free individuals. Actually, the independence and democracy seemed for us a pre-condition of the individual freedoms of any citizen. In 1989 the Latvians were saying: we want freedom even if that means walking bare-foot. As you understand we meant by that the readiness to sacrifice the economic well-being to obtain freedom. Mass demonstrations were held in Riga, the people were singing that this people [this nation] has a right to live in its own State and decide its fate, it has the right to speak in its own language and to remember its history. The families separated because of the Second World War have a right to reunite. We felt as well the supportive shoulder of our brothers, since what was happening in Lithuania and Estonia was similar in essence.
In the middle of this same summer of 1989 I had the opportunity to stay one month in East Berlin as a member of a student delegation. We visited the law faculty of the Humboldt University and met lecturers and students. The streets of Berlin seemed quiet. We thought that the Soviet regime is in control of everything. The only threat or rather inconvenience for the Socialist Germany was the Perestroika process initiated by Mikhail Gorbatchev, one of its components was the Glasnostj which may be understood as freedom of speech.
This policy of Glasnostj meant that the lever which previously was used to prevent saying the truth, including the truth about the historical facts, was turned. Nevertheless, Glastnost did not imply any obligation upon the State. The Soviet Union continued to lie to its peoples, one such obvious example is the Chernobyl disaster.
However, it has to be recognised that Glastnost expanded considerably the scope of the freedom of speech. A striking example is the speech given by journalist Mavriks Vulfsons on 2 June 1988 in the plenary assembly of the Union of the Creative professions of the Latvian SSR. He spoke openly about the occupation of Latvia and read [lasīt: red, jo past simple, tulk. piezīme] out loud the secret protocols of the Molotov-Ribbentrop Pact. One year later he professed the same but already before the 2nd Congress of People’s Deputies of the Soviet Union in Russian and to all the Soviet Union, since the Congress was televised. Vulfsons was listed as a member of intelligentsia to be isolated, nonetheless no real sanctions followed.
These questions were not discussed in the middle summer of 1989 in the Humboldt University. The only things worth to remember from my private discussions with the German students was their conviction that the policy of Gorbatchev is not suitable for Germany, and that the socialism theory elaborated by Marx was adapted only for the German mentality, therefore the implementation of socialism in Russia corrupted and degraded the pure idea of socialism. I returned home to Latvia and already in August of that year [1989] the three Baltic nations joined their hands to commemorate the 50th anniversary of the Molotov-Ribbentrop pact. Riga was crossed by the Baltic chain – the peaceful demonstration of all three Baltic nations.
It must have been that in Berlin I didn’t speak with the right persons; otherwise how would the socialist regime had imploded just some months later? Since the Berlin wall was the tangible proof of a divided and unfree Europe – its fall truly meant the start of a new life. It gave hope for victory also for us in Riga. These hopes came true, although after a stormy chain of events, the outcome of which nobody dared to forecast. In December 1991 the Soviet Union disintegrated. It meant also the end of the Warsaw Pact, formally known as the Treaty of Friendship, Cooperation and Mutual Assistance, held together by the “helping hand” of the Soviet army.
Us, who liberated ourselves from the yoke of a totalitarian State, we are free people now already since almost 30 years. Are we actually free? Do we understand Freedom in the same way as then in 1989 when we stood up against the regime? These questions had been in my mind since some time now. I am grateful to share these thoughts with you.
Nobody was able to imagine the reality in which we would have to live after gaining the independence. First of all, it was the crash of economy, since the industries of Latvia were just a part of the enormous Soviet economic system. The actual price what the individuals had to pay was unpaid salaries, unemployment, professional and foreign language skills that nobody needed anymore. At the same time new opportunities arose, which we hadn’t enjoyed for 50 years such as freedom of press, freedom of religion, freedom of association, freedom of movement, private property to name just a few.
Following the abolition of total state control some parts of the society were in euphoria. Freedom was misunderstood as a license to do anything. In any society, freedom without a legal framework that ensures a reasonable enjoyment of each freedom leads to arbitrariness. There was no comprehensive regulatory framework for the new economic relations.
And yet it was clear to everyone that the Soviet Union was gone. It meant that people’s initiatives must not be restricted. All we knew before was that the world was divided between socialist countries and capitalist countries. We wanted to build a democratic state that respects the individual freedoms. We were no longer a socialist state, however all that we knew about the alternative to socialism came from what we had been taught based on Marxism. That is why in the 1990s we experienced the wild capitalism described in works of Marx and Lenin.
In the early 1990s, the Soviet law was still in force, however the judiciary using a certain degree of discretion applied these norms according to the new reality or simply disapplied them. For example, the Criminal Code, in force since Soviet times, still provided for criminal liability for speculation, which meant any private trading for profit, exchanging foreign currency, also homosexuality, and number of other rules were no longer applied by the courts.
Also new laws were created and old pre-occupation laws were re-enacted, since in 1991 Latvia restored the same Republic which was proclaimed in November of 1918 in accordance with the state continuity doctrine. This was a time when in the closed funds of libraries, we searched for the works of previous legal scholars explaining the laws of the Republic of Latvia during the inter-war period such as the Constitution, the Civil Law, the Law on Notaries, etc.
Luckily, we were not left alone in these complex times! We were supported by the ‘old Europe’ helping to raise awareness in the society about the democracy, rule of law, and the fundamental rights. Especially, the Scandinavian countries and Germany sent books, guest professors, and gave our students and teachers exchange opportunities to learn what means freedom under the rule of law. This is time when we were building the rule of law, we didn’t simply write new laws, we had to transform the legal system as such. Within about 10-year period, the socialist legal system was replaced by a continental European legal system. Already in the late 1990s, the foundations were laid to guarantee individual freedoms under the rule of law. We adopted the best European practices: in 1996 the Constitutional Court was created, in 1998 a modern bill of rights was added to the Constitution, in 2001 the Constitutional Court became competent to hear Constitutional complaints submitted by the individuals. Separate administrative courts were established in 2004, and finally the Ombudsman was established in 2007. Gradually we developed the three-level judicial system, allowing to strengthen the independence of the judiciary and the working ethics of judges.
The system was rebuilt so rapidly that those who did not participate in this process did not even realize how profound actually were these changes. Those involved in the rebuilding process did all they could to understand and to follow loyally the recommendations we received from the European Union to meet the requirements for joining it.
We haven’t spared any effort to build a democratic state governed by the rule of law guaranteeing individual freedoms. We have created this building from legal norms and institutions. And yet we may not avoid the question whether we are free, and do we want to be free? How many choices are we ready to leave for others?
In one conference I heard a theory about the inertia of collective thought: the collective thought of society, or social culture, is inert, that is to say, on the one hand, any changes appear only after prolonged exposure, on the other hand, they are also slow to disappear. The author said that during the Soviet occupation, the Latvian people had longed for their country and their freedom, as patriotism and pride for their land had been intensified before the Second World War. For 50 years this ideology has been submerged in the collective subconsciousness of the nation. Today, according to him, consequently this impression of Soviet ideology is emerging in our society. I do not know if I can fully agree with this conclusion, but there are some features that makes it worth to take into consideration.
Soviet ideology was aimed at restricting the freedom of the individual in favour of the collective values and interests. Society and individual life were regulated in all its details because the belief was that the many know better what the is needed for the few. Therefore, the individual had limited freedom of choice and limited right to self-determination. The belongings of the rich were seen as necessary stolen from the collective, so it was his responsibility to share if failed to prove the legal origin of this property! The State by restricting the freedom of the person, at the same time assumed all the responsibility over individual – it assumed the obligations not only to provide for free education and health care, but also to find employment for everyone and housing. Precisely it was for the State to ensure that everyone lives a dignified life!
In reality however the Soviet was unable to honour these promises. On the individual level, what we couldn’t get from the Soviet state we immediately started to expect that from democracy. Soviet people actually were deprived from awareness that enjoying one’s freedom also means being responsible for the consequences of one’s decisions. The end of the Soviet times thus marked the beginning of taking responsibility for our own lives.
It would be a dishonest exaggeration to claim that everything in the contemporary Latvian society may be explained by ideology, some attitudes are a simple consequence of everyday experience, let me give you an example! During my life, I have witnessed five monetary reforms and I lost a part of my savings with each of them. Therefore, don’t be surprised that when you compare the money-saving habits between different EU Member States, you see a very different picture compared to the countries of Western Europe. Our experience has been different!
It also explains the evasion from social security contributions, since still a large of the population simply sceptical of their chances to receive in the future the promised old age pension. There is a precautionary attitude towards making long-term investments since, as goes one Latvian saying, “the saver saves, the robber takes.” After the early day euphoria and the ill-understood freedom in the early nineties, and the subsequent period of laying down the foundations of the rule of law, I can say that today there is still a long way to go in order to feel familiar with the discourse on human dignity and fundamental rights. As long as a person continues to expect someone else to think and make decisions in her place, taking responsibility for her well-being, as long as the public institutions continue to assume that they know better what are the needs of the people, we may not call ourselves entirely free and enjoying human dignity. The not so bright reality often is that the slogan from the liberation period “We want to decide our own destiny” today sometimes means, “We, not the occupying power, determine how our people live by limiting their self-determination.” It is illustrated by the fact that in recent years, the Constitutional Court has assessed a number of restrictions on the fundamental rights of a person imposed by the legislator, which were “absolute prohibitions”. They were not limited in time, they could not be altered even after a change of circumstances, the legislator did not even consider the necessity to evaluate the individual situations. In one of these cases, the individual formally didn’t even have the right to ask for a legal review against an unfavourable decision.
The legislature is not shy to limit the right of adults to decide for themselves. For example, it determines the maximum size of bottles for alcoholic beverages to prevent people from drinking. Another bill, which was not adopted in the end, restricted a woman’s right for ovum donation, in other words, to decide on her body. Only the active resistance of women’s rights activists derailed this project before it became a binding law. The general public also knows how an individual should live, indeed, some of these restrictive laws are born in non-governmental organizations. As a scientist, my freedom of scientific creativity is curtailed year after year. In order to be a full-fledged scientist – an expert in the field – I have to publish on a regular basis, once a year, in journals of specific academic data-bases. I may be recognized as a full-fledged researcher by a special commission for three years only if this criterion is satisfied.
Another striking example of divergent understanding of civil liberties between one post-totalitarian society and the old democracies, in my view, was the case concerning the obligation to display the national flag on certain days, in which the Constitutional Court delivered its judgment on 2 July 2015. An individual lodged a complaint that she would face an administrative penalty if she wouldn’t raise the national flag for mourning on a set date, which is a family holiday in her family. In its assessment of the contested regulation, the court investigated whether other countries had similar restrictions on the fundamental right to freedom of expression. An interesting scene emerged: none of the old European democracies had anything like this, but several new democracies had similar obligations. Ivars Ījabs Political scientist and amicus curiae in this case pointed out that the assumption that the use of the Latvian national flag on certain dates promotes public education, patriotism and understanding of democracy in reality is a mere speculation. Looking back in history, he concluded that a strong demand for loyalty was characteristic of authoritarian and totalitarian regimes, but that this tendency was also seen in some new, not yet entirely irreversible democracies.
After these examples one may ask, whether people actually feel restricted in their freedoms? In my opinion it is a small minority feeling that way. The reason for this is that still a large part of society has still not sufficient awareness of their freedom as self-determination, of taking responsibility for one’s own life, of tolerance for another’s freedom of self-determination in ways other than we would like. Incoming constitutional complaints to the Constitutional Court can serve as a kind of indicator of what people expect from fundamental rights and the state. First of all, it is a fair trial, then it is material benefits: social benefits, pensions, property. Obviously in terms of prosperity ranks rather low in the Europe Union, this fact also determines the particular significance of the material goods. However, all the benefits and the protection of material goods become useless if they are not based on the human dignity and the possibility to make one’s own choices in her life. It comprises also the care of yourself and your loved ones.
Finally, I would like to emphasize that the fact that we finally have our own independent State unfortunately did not naturally lead to an immediate and general understanding about individual freedoms in the society and thus in the country in general. If the institutions of the democratic state are of opinion that they know better than the person about her needs, then the very meaning of democracy is lost. How would a person unable to make decisions about her life would suddenly become able to make decision of political importance? Therefore, in order to live a meaningful life after that the wall of Berlin has finally come down, it is our responsibility, and that of our democratic States, to develop and to be vigilant about the respect of human dignity in the sense that any human being is a reasonable and responsible individual with the right to self-determination. After all, shouldn’t we all strive to become genuinely better human beings?