“When law can do no right, Let it be lawful that law bar no wrong: Law cannot give my child his kingdom here, For he that holds his kingdom holds the law.” So said Constance to Cardinal Pandulph in Shakespeare’s King John. This week, it’s an adult and not a child, a flat and not a kingdom, Gdansk and not Angers, but the Ministry of the Interior holds to the law to the same effect. How so?
Without going into a level of detail of interest only to lawyers and insomniacs, Polish law (well, if you insist, actually the Law of 24th March 1920 on the Purchase of Real Estate by Foreigners, as amended) requires that foreigners wishing to buy real estate obtain a permit from the Ministry of the Interior before doing so. One of the requirements is that the applicant demonstrate the existence of circumstances confirming his ties with Poland. And this is where it becomes interesting.
A homosexual from Chile applied to the authorities in Gdansk in 2013 to purchase a flat in Gdansk which he intended to share with his Polish partner. The applicant, to demonstrate his ties to Poland, stated that he should be categorized as a member of a Polish family, because of his being in a civil partnership with a Polish man in the United Kingdom. Needless to say the application was rejected with the local authorities noting that since Poland does not recognize civil partnerships the applicant could not be considered to be a member of a Polish family. The Ministry of the Interior agreed with this decision and so the Chilean took the case to the Regional Administrative Court in Warsaw, with the Helsinki Foundation for Human Rights as co-applicant. The lawyers representing the Chilean argued that the decision “violated the constitution and international conventions in its unequal treatment of persons purchasing property” but the court upheld the original decision. The applicant has said that he will take the case to Poland’s Supreme Administrative Court. Interestingly, Prime Minister Donald Tusk did try to introduce laws to legalize civil partnerships in 2013, but the legislation did not progress because there was a lack of unity on the issue within his own party.
Has there been an injustice or did the court make reasonable judgment based on the facts? Should the court simply have accepted the fact of the UK civil partnership as establishing a suitable tie to Poland or, in applying Polish law in Poland, was it bound only to look to how such a tie might be established under Polish law? Clearly for the two men concerned this looks to be an unnecessarily harsh outcome but given the pedantry of the Polish legal system the judgment does seem to have a certain logic to it. The Act mentions as examples of circumstances demonstrating the necessary ties to Poland, Polish nationality or origin, marriage to a Polish citizen, having a residence permit, being engaged in a business in Poland or being involved in the management of a Polish company. Thus on a strict interpretation (and there is seldom any other in Poland) of the words of the Law, the court’s decision may be said to be not wrong, if not just. Perhaps the supreme administrative court will feel able to take an approach which takes account of relationships which are not marriage as mentioned in the Law but which may have sufficient clarity to satisfy the requirement to demonstrate a tie. Or perhaps not.
Be that as it may, this case is but one example of how the law is increasingly having to grapple with modern arrangements and values which challenge those on which the law and the society of which it is a reflection are built. Do we say all values are equally valid or do we regard some values of being of such importance to the good order and survival of society that they must overrule the others? Presumably the latter because the former is the road to chaos. As ever, the problem is where the line is to be drawn especially when considering the differences between toleration, freedom and license.
Perhaps this is most clearly illustrated in relation to free speech. This week in the UK a Moslem tweeted a carton which depicted God saying “hi” to Mohammed. Immediately other Moslems went of the offensive about how offended they had been, one spokesman – ironically standing as a candidate for the Liberal Democrat party – taking to the television studios to suggest that the original tweeter – also a Liberal Democrat candidate – was no longer fit to stand for election. As we saw last week in The Word just because one person takes offence that is no reason for the remarks to be censored or give rise to legal sanction. As another journalist tweeted the question why is it blasphemous to depict Mohammed in a cartoon but not to name your child after him? In Europe we enjoy free speech and we must not allow the humorless bigots who form part of the coalition of the thin-skinned to undermine that. The militant of the Moslems in the UK are in effect saying you have to tolerate our wish to impose our intolerance on you: if we take offence you must be silent. And, incidentally, have you noticed how the atheistic elements in the coalition of the thin-skinned are always happy to take offence at the utterances of an Archbishop but rather less “brave” when it comes to Islam? Surely there is much for them to be upset about yet they remain silent.
The law must try to reconcile these competing claims but it can only do so on the basis of a generally accepted values: the rule of law, equality before the law, free speech, democratic accountability, and so on. These values, which themselves derive from the history and experience of European civilization, appear to be under threat as never before. Those who seek to take advantage of our values with the object of imposing others that are simply incompatible must recognize that even the tolerant have their limits. We need not be afraid to say this, leaving the last word to Shakespeare: “For pity is the virtue of the law, And none but tyrants use it cruelly.”