Poor legislation and pandemic fatigue will make Poland’s new lockdown hard to enforce

By Bartłomiej Biga (published in cooperation with the Jagiellonian Club think tank)

They say that the law is not retroactive. But the way the Polish government has battled the pandemic has led to a situation in which the law does not work prospectively either. This is surprising, because early on in the pandemic it appeared that Poles had easily adapted to the legislative bungling and conformed with even the most severe restrictions. But this mechanism became much weaker in the autumn, and it might prove almost impossible to introduce restrictions effectively in the coming weeks.

Rebuilding fear

It is not even the decline in the quality of legislation in Poland that is responsible for the dissipating respect for restrictions – the level was so low anyway that it is hard to notice any change. The difference is fear.

This was what made us accept the contradictory laws announced at press conferences. Later, although the virus was no less serious, to a great extent we got used to the threat. This relative calm was not even significantly disrupted by the alarming number of excess deaths that Poland recorded in the second half of 2020. Despite the government’s best efforts, it will not be easy to rebuild the sense that coronavirus poses a real danger.

Firstly, society is tired of the pandemic. People are disillusioned, for instance, to see that despite assurances this Easter will be another holiday that is not “normal”. Meanwhile, vaccinations, which were supposed to be a quick solution to the problem of the virus, for now are not bringing a noticeable relief (outside of the medical community).

Of course, the problems with availability of the vaccine are not the government’s fault. But it is hard to reconcile the extension of restrictions with boasting about the record pace of vaccinations.

Secondly, many people in a sense have nothing to lose. This is particularly the case among the most affected sectors of the economy. The “anti-crisis shields”, though generous, have left many workers and employers without adequate support.

Help for businesses has also often been delayed, as well as excessively bureaucratic. The increasing numbers of Covid convalescents also feel they have “nothing to lose”, and that, at least for a few months, they are immune.

Thirdly, social trust has not only been frayed, but trampled into the ground. This is shown emphatically by a compilation of statements made by Jonasz Jasnorzewski for RMF24 showing a selection of government politicians and doctors providing contradictory information about the threat of the virus and the need to wear masks.

Consequently, even information about more dangerous variants or mutations of COVID-19 does not result in the same fear as before, and the government can no longer steer society with its legislative bungling so easily.

I am not saying whether the current level of threat should cause fear and shut things down or we should be happy at society’s “awakening”. I am only evaluating the effectiveness of the legal methods of dealing with an epidemic.

Six basic errors that have made governing harder

There is much to suggest that the government is aware of its diminishing capacity in introducing restrictions. Even if the “business owners’ strike” did not achieve the scale its organisers imagined, the level of ignoring the law is ever greater. The government is trying to counter this with shows of strength from the police, but “underground” economic activity seems unstoppable.

To a large extent, the government has itself to blame. Even with the current fatigue and decreasing fear levels, more effective management of the epidemic is possible. The condition is a professional approach to formal and legal questions. The Polish practice, however, is the complete opposite. Let us look at the most serious shortcomings.

First, most of the restrictions did not have the appropriate legal basis. Of course, I am not saying that each detail of opening/closing/restricting must be introduced with an amendment to the law in every case. But it is hard to understand why it was out of the government’s reach to prepare a law containing correct – i.e. hard to challenge in court – delegated legislation for issuing pandemic decrees.

After all, this is a government with a parliamentary majority and its own president, yet one that still prepares defective laws. As a result, many people do not abide by restrictions. They are buoyed by court rulings that challenge the penalties imposed by the police and the state sanitary authority.

Second, many regulations are contrary to elementary logic. The requirement to wear masks outside of buildings and concentrations of people is criticised even by members of the medical council. Rather than relaxing it, however, it has been tightened.

Third, there is a lack of solidarity. I mean here not only the flagrant breaking of prohibitions by politicians and their families, but also laws passed in the particularistic interest of their own circles. The best example came in the Christmas and New Year period, when people involved in preparing material for companies with a broadcast licence were granted an exemption to stay in hotels.

This, of course, was about allowing state broadcaster TVP to hold its “Dream New Year’s Eve” show. As if this was not enough, even this “nod” to television contained an error, because TVP’s public status means it does not have a licence. But this was not a problem, because the decree was quickly amended so that the exception included the wider category of “media employees”.

This leads to the fourth type of negligence – frequent amendments and announcement of the contents of restrictions at the last moment, often less than an hour before they enter into force. This is understandable – the epidemic is a dynamic phenomenon that requires frequent changes and ongoing adaptation.

But we have the right to expect the normative act to be ready ahead of the press conferences at which restrictions are announced. That would also increase the chance of coherence between politicians’ statements, infographics on the government website and the contents of decrees.

Fifth, publication of laws at the last minute reinforces the suspicion that these are regulations dashed off in a hurry. There are dozens of examples of terrible errors in pandemic normative acts.

Sixth, the government violated the social contract. The closed sectors were promised generous help. In certain aspects, this was provided – especially in the Polish Development Fund shield in the summer. But the support on offer in autumn and winter was delayed and full of holes.

And in the context of breaking the social contract, we also cannot ignore the abandonment of the roadmap presented in autumn specifying the numbers of infections that would lead to particular restrictions.

In this context, the government representatives now claiming that it was unwise to base actions only on this indicator only make things worse. When announcing the infamous thresholds, were they not aware that other data must also be taken into account?

What could have been done differently?

It will be increasingly hard to introduce new restrictions. The reasons are complex. Dominant, though, are those for which the government is to blame, caused by disastrous legislation. There is much to suggest that it could have been different.

Of course, even much more coherent action from the government would not have prevented fatigue, bitterness, and even desperation in society. Yet it is hard to resist the impression that to a large extent Poland squandered the advantage that it earned last spring.

This article focused on the legal aspects. But we could equally have criticised the government for much more – especially for the actions of the sanitary authorities. The problems described above are exacerbated by the fact that many people (not without reason) avoid getting tested, and in key moments the track and trace system has been an illusion.

The most interesting questions on the battle with the epidemic are still waiting for an answer. Will courts confine themselves to revoking unduly imposed penalties? Or will they also look favourably upon the applications for compensation that businesses are promising to make? How quickly will civil disobedience increase? And above all, when will this all end?

But I will not ask whether this lesson will teach us anything. Based on the experience of recent months, there are no grounds for optimism in this regard.

The original Polish version of this article can be found here. Translated by Ben Koschalka

Main image credit: Kuba Bożanowski/Flickr (under CC BY 2.0)

Bartłomiej Biga is an assistant professor at Cracow University of Economics and an economic legal analysis expert at the Jagiellonian Club Centre for Analysis