One of the books written by Professor Wiktor Osiatyński was entitled “Your Constitution” (Twoja Konstytucja). It is not a scholarly book, but rather a handbook for pupils and ordinary citizens. It was written and published in 1997, when the new Polish Constitution was adopted. Professor Osiatyński argued that the Constitution should be of value for every citizen, that people should know what it contains, that it regulates their rights in respect of public authorities.

At that time he was one of very few who explained the Constitution to people in this way, who understood the importance of civic education and that the Constitution may unite people. Also, the courts did not know how to apply constitutional provisions directly.

Poles started to understand the importance of the Constitution at the end of 2015, when the conservative ruling majority started to attack constitutional principles and values, when the “Law and Justice” party started to undermine the foundations constitutional democracy. Poland started its march down a path towards illiberal democracy, following the Hungarian pattern. The ruling majority implemented similar strategies of nativism in politics, promotion of a strong, centralized state, as well as traditional values in society.

Wiktor Osiatynski would be delighted to see the emergence of the new Polish constitutional patriotism in diverse forms: street protects, discussion clubs, new social movements (especially grassroots movements fighting for women’s rights), direct application of the Constitution by courts. But it seems the most important date was July 2017. A moment which Wiktor Osiatyński was unable to see.

In July 2017, thousands of people protested in more than 200 Polish cities in order to fight for judicial independence. The symbol of those protests was a poster, later to be put on T-shirts, bags, buttons, pin-ups and other items. The poster is a very simple one. It comprises the word KONSTYTUCJA (written in bold letters), with two words underlined in white and red – “TY” (which means “you”) and “JA” (which means “I”).

Thanks to this poster, which has been reproduced thousands of times, the Constitution stopped being just another book on the library shelf. Polish citizens, protesting against authoritarian tendencies, started to feel why the Constitution is important, that it is addressed to everybody, that it may unite people in their belief in human rights and the rule of law.

But those difficult times of 2015 – 2019 are important also because of the re-emergence of the values of solidarity in public life. Poland, as the birthplace for the “Solidarity” movement in the 1980s, once again started to experience what solidarity means to human rights. This meaning is certainly different than it was some 30-plus years ago.

Taking into account the experiences of the last few years, I would like to briefly sketch a few dimensions of solidarity in the context of human rights.

1. Solidarity with those under pressure: judges, prosecutors, civil society activists

The drive towards authoritarian power means that some groups are under constant pressure, in the form of disciplinary proceedings, threat of sacking from positions, initiation of court proceedings or other forms of shrinking the space for civil society.

There are different means of demonstrating solidarity with those under pressure:

– letters of concern

– documentation of abuses (important role of the Osiatyński Archive)

– demonstrations and symbolic actions

– providing legal representation (“Committee to Protect Justice”, a coalition of NGOs created on 4 June 2018 to protect judges, represents them in disciplinary proceedings and monitors trials. The idea of the Committee is a direct reference to 1976, when the Committee to Protect Workers was established.

Such solidarity measures are important because:

– they are a direct invocation of Polish history and the tradition of the “Solidarity” movement

– some actions are inspired and supported by former “Solidarity” leaders (e.g. Lech Wałęsa wears a “Constitution” t-shirt on a daily basis)

– some methods are copied from those times

– for those under pressure they create a feeling of “not being alone”

– they enable certain professional groups to share similar values (solidarity of lawyers is important in the Polish context)

– showing solidarity, as a form of protesting against state power, is a form of civic engagement for regular citizens.

2. Solidarity of Ombudsman institutions

Being the Ombudsman, my daily challenge is not only to represent citizens, but also to protect the independence of the institution. For me, solidarity has a specific dimension. I am not only supported by Polish citizens and NGOs, but also by international umbrella organizations. When I was subjected to pressure (budget cuts, lawsuits by public television, personal attacks by some politicians), I could count on ombudsman institutions, such as the International Ombudsman Institutions. Their involvement was bigger than expected. It included monitoring missions, statements, but also a feeling of support from the community. Thanks to this I continue to serve in my function, despite the pressure to dismiss me.

3. Solidarity with groups which are politically targeted

One of the methods used by the ruling party is the constant search for enemies. Some groups are the usual targets – e.g. refugees and the LGBT community. In the fact of overwhelming propaganda, the language of human rights is not enough, as the authorities are not concerned with this (they simply ignore or present alternative interpretations of the idea of rights). Sometimes they openly ignore it.

The Constitution and human rights might be of value for those who defend vulnerable groups. But pure legal argumentation is not enough. There is a need to find a formula for counteracting propaganda measures. Creating bonds of solidarity with such targeted groups is a good method. Once again – they should not be left alone with their problems, pressure, hate speech and hate-motivated violence. But even such measures require good organization, leaders with fresh ideas, as well as social mobilization. I am not sure whether we have done enough in Poland to support such targeted groups.

4. Solidarity and marginalized groups

The ruling party seeks legitimacy through huge social spending and investment in social rights. Liberal elites have a dilemma: how to overcome this challenge without increasing spending?

Solidarity cannot be an alternative to social rights. Solidarity may complement some actions of the state, but it will not replace them. At the same time, as Wiktor Osiatynski always argued, the constitutional regulation of social rights should be limited. Therefore, it is up to policy makers to define the actual day-to-day content of social rights.

In my opinion, liberal elites cannot ignore the value of social rights. But they should be smart in conceptualizing how social rights are actually realized. Here I see five components:

1. new technologies and environmental damage – consequence for social rights
2. constitutional language v. reality (e.g. health, right to education)
3. privatization of some state functions (e.g. social foster homes)
4. right to political participation (e.g. consultation on infrastructure projects affecting the lives of citizens and their living conditions, or on specific measures supporting specific rights)
5. going local (showing solidarity by merely showing interest and willingness to resolve some problems)

In my opinion, in order to overcome populism based on big numbers, nativist trends and investment in social rights, we need a modern social rights agenda.

Conclusion

The Preamble to the Polish Constitution says that the Constitution should be applied by those to whom it is addressed with “paying respect to the inherent dignity of the person, his or her right to freedom, and the obligation of solidarity with others.”

So perhaps the Polish framers, including Wiktor Osiatynski, have provided us with an answer. You cannot have individual freedom without the obligation of solidarity with others. Some people in Poland show solidarity to those who are vulnerable, under pressure or marginalized. The question is whether it is enough to overcome the illiberal spirit.