"Purification" Laws Enacted by Post-totalitarian or Post- Authoritarian Democratic Regimes

This paper examines one distinctive method of dealing with an authoritarian or totalitarian legacy in a context of democratic transition: purges and/or "purification" laws. Like the Czech lustration law, these laws often focus on participants or collaborators with the ousted regime and ban them in some respect from public life. In each of the cases discussed the engineers of democracy have used some form of these laws to shore up democratic institutions and principles. ln each of these cases, the laws have proved imperfect in principle and/or in practice.

It is important to clarify the scope of this paper at the outset by stating what it will exclude as well as what it will include Many regimes struggling to establish democracy seek to prosecute past human rights violators, either exclusively or in combination with purification laws. In the Latin American cases, for example, where dictatorial and/or military governments regularly used torture, murder and other violent acts as instruments of repression on a large scale, the concentration has been on criminal prosecution of the perpetrators and/or on fact-finding commissions that compile histories of the ousted regimes' activities and attempt to place blame for the worst episodes on those who are responsible. Thus, the Latin American cases are not addressed here. In some cases that are presented, such as those concerning post-World War II transitions to democracy, states employed both criminal prosecution and purification laws resulting in civil or a mixture of civil and criminal sanctions to punish transgressors and to purge society. The discussion here will include both but focus on the purification laws.

In addition, it must be noted that this paper primarily concerns itself not with ousted authoritarian or totalitarian leadership, although they may have been included in the reaches of the laws discussed, but with lower and medium-level administrators and collaborators, who tend to be significantly larger in number and more ambiguous in definition than the higher-ups who are often more appropriate subjects for criminal prosecution. Finally, this paper is not designed to catalog every instance of purification laws in democratic transitions. Instead, it focuses on a more detailed discussion of three cases, and conducts analysis based on those cases.

Part I of this paper outlines the reasons most often given for the use of purification laws in post-totalitarian or authoritarian societies and some of the counterarguments to those rationales. Additionally, it outlines some of the dilemmas posed by their use. Part 11 describes two historical twentieth-century cases: post World War II Japan and post-Vichy France in the aftermath of World War II, and culminates with discussion of the primary case for this paper, that of the Czech Republic. Part III then analyzes the questions posed in Part I in light of the cases and historical context discussed in Part II, and attempts, where possible, to draw conclusions regarding the efficacy of purification laws and their role in a burgeoning democratic society governed by the rule of law.

[Excerpt from pages 3-5]