This article is published in cooperation with the ideaForum of the Batory Foundation.
By Grzegorz Makowski
Parliament will this week discuss legislation proposed by MPs from the ruling party that would exempt officials from punishment for breaking the law if they did so as part of efforts to tackle the coronavirus pandemic. It would apply retroactively, to actions already undertaken. This would be a dangerous move, undermining important legal principles and potentially facilitating corruption.
On 12 August, in the middle of the holiday season when Poles were taking a break from the pandemic and politics, a private member’s bill was submitted to parliament by MPs from the ruling Law and Justice (PiS) party.
It proposed an amendment to the act on specific solutions related to preventing, counteracting and combating COVID-19, other infectious diseases and resultant crisis situations. In just two days, without public consultations, the bill passed its first readings and committee discussions.
A “dirty bomb” is concealed beneath the innocent-sounding title, in the form of Article 1, Paragraph 1 of the bill. If this regulation into force, it will be just a matter of time until the bomb goes off, infecting and sullying Polish public life with further cases of corruption and abuse of political and administrative power.
The authors say that the pandemic means sometimes officials have to act in ways that are in the public interest but outside existing law.
The opposition claims the bill is designed to protect the health minister and other officials from prosecution https://t.co/cB1GHR3aYe
— Notes from Poland 🇵🇱 (@notesfrompoland) August 13, 2020
The paragraph in question states that: “Anyone who infringes official duties or the applicable law will not be deemed to be committing a crime if he or she is acting in the public interest, and the action taken would not be possible or would be significantly impeded without infringing these duties or laws.”
Its significance was immediately deciphered by lawyers from the Helsinki Foundation for Human Rights, legal professors and activist lawyers monitoring changes to the law. In brief: politicians, government officials, and in fact everybody (the scope is not specified) whose actions actually do have, or even only appear to have, the purpose of limiting the pandemic can be exempted from punishment, no matter how serious their crime.
For example, there will be no consequences if a government minister or ministry official arbitrarily decides to buy another batch of useless masks or virtual ventilators that will never make it to hospitals without a public tender or even a trace of any competitive procedure. Even if we, the taxpayers, lose billions of zloty as a result.
Another problem the Helsinki Foundation mentions in its expert report is that allowing such impunity denies the victims of crimes the right to seek justice and compensation. How can one assert one’s rights in a state of legalised lawlessness?
In addition, the regulation violates the constitutional principles of specificity of law. Not only do the legislators not specify what kind of acts would be excluded from liability and in what circumstances, the justification also lacks even a trace of analysis and arguments to warrant the implementation of such far-reaching interference.
This kind of immunity would also apply to actions that have already taken place. It would thereby violate the principle of non-retroactivity, which is one of the foundations of democratic rule of law.
Among the organisations to have issued critical opinions to the Sejm (the lower house of parliament) are the Lewiatan business confederation, the All-Poland Alliance of Trade Unions, the Business Centre Club and the Supreme Bar Council. The bar council, for example, refutes the argument presented in the justification for the bill, which suggests that countering COVID-19 can be treated as the greatest good in the hierarchy of legal goods.
Such actions are not a good in themselves, but potentially a method for protecting goods such as health or human life. This is therefore a lack of logic that could result in paradoxical situations.
Contrary to international recommendations
We might well wonder whether anyone outside of Poland has come up with similar responses to help fight the pandemic. Such examples are hard to come by, and there are none in the European Union.
Transparency International carried out a review of instruments used to counteract the pandemic in terms of corruption risk. There are no similar cases in the working paper from this analysis. It is true that legislation has appeared in the Czech Republic and Hungary resembling Poland’s “Anti-crisis Shield 2.0”, which was passed earlier this year and gives indemnity for white-collar crime and violation of public finance discipline for purchases associated with implementing COVID-19 policies.
Yet these are not as radical as those already binding in Poland. And that is without mentioning this new idea for impunity. Meanwhile, international organisations such as the Council of Europe, OECD, UNCAC Civil Society Coalition and World Bank recommend quite the opposite of the bill in question.
As with any crisis, the pandemic disorganises public life and the operation of the state. The risk of corruption naturally increases. Rather than loosening discipline, therefore, it is necessary to increase vigilance and create new solutions to protect the public interest, taxpayers’ money, and ultimately also our health and lives. Corruption will always be contradictory to these goods.
We have already seen the effects of slackened liability. After all, the purchase of masks that failed to meet standards, in bizarre circumstances, from a ski instructor friendly with the health minister, endangered the health of medical personnel. These masks had already reached hospitals.
Even more controversial was the purchase of ventilators from a company founded by an arms dealer. There is no sign of the ventilators, and tens of millions of zloty have been lost. There is no doubt that the money could have been put to better use.
These are just two cases of corrupt practices that have almost been “legalised” by the Shield 2.0 regulations, which absolve officials and politicians of liability for wasting taxpayers’ money and failing to satisfy or abusing obligations in public procurements. The latest initiative expands this impunity even further. And we can be certain that we have not seen the last such case.
Law and justice not for everyone
The shocking thing about this initiative is the very fact that it is being processed in parliament. It is outrageous that the prosecutor general supported it, declaring in a special letter to the Sejm that he had no comments to make.
The ways the bill has been defended by politicians and officials of the current government are also shameful. In the media, they repeat far-fetched arguments from the justification. They lament that in the pandemic they are working under such pressures that they need this law for Poland to be in a more comfortable situation.
Politicians and party officials are therefore to receive a licence for impunity. What, in this context, should doctors say, when they have been on the front line of the battle against coronavirus for months but another recently passed law, the “Anti-crisis Shield 4.0”, has surreptitiously handed them increased penalties for medical errors?
What should business owners say, when there is a bill on the table that will enable the state to preventively take away their assets and introduce compulsory administration in companies? Is this the equality before the law and justice the government envisages?
Less impunity and more responsibility and social controls
Rather than just criticising, it is worth mentioning at least briefly what could be done better. It is worth making use of the recommendations of international institutions and social organisations.
In matters of health, the government like to cite the authority of the WHO, so why do they not do this in matters concerning the rule of law and corruption, benefiting from the authority of organisations dealing with these subjects? In fact, all these organisations strike a similar tone.
They advise that, instead of absolving of liability, it is important to:
- specify who is responsible for what during the pandemic, improve coordination and design new control and supervision procedures.
- improve documentation of decisions and put together as precise criteria for purchase of the medical equipment essential for combating the pandemic as possible.
- intensify checks and audits – especially in public procurements and support provided for dealing with the pandemic and its effects.
- and above all, to produce conditions for better public oversight of the various public decisions made during the pandemic.
This last recommendation could be implemented by facilitating access to public information via digitising, obliging institutions to proactively publish information online, shortening dates for information access etc. The EU directive on protection of whistleblowers has been waiting for a year. During the pandemic, laws protecting people reporting corruption and fraud in the workplace are needed more than ever before.
Yet the current government is not making access to public information easier, but complicating it further on the pretext of battling the pandemic. There is no word on intensified oversight and checks in public institutions. The laws on whistleblower protection have not even begun to be implemented.
The current crisis demands accountability, not impunity. We must not increase its costs and at the same time expose the state and all of us to corruption, abuse of power and increasing mistrust of public institutions.
The original Polish version of this article can be found here. Translated by Ben Koschalka.