1 Accountability.– Discretion + Power of Monopoly = Corruption ‘equation’: Klitgaard classic the fits it once, For phenomenon. complex a is Corruption always amajorfactorbreeding corruption,asRobertKlitgaard rightlypointedout. is which in, way easy an finds discretionarybehaviour crisis, of relevanceprocedureslack during and tough decisions. Policies and procedures tailored to normality may be seen like a burden. While laws rapid, require crises Moreover, accountable. or transparent financially be to prone less and cedures, issue ofsavingtheirlives or assets,tryingtorecover. Peopleare lessattentive to standards andpro- a crisis. Ittendstoaccompanylessprosperous spells,aspeopleconcentrate onthemore burning indirect threats, too. Corruption is usually one such indirect, yet serious, factor that will aggravate All crises–economic,health,military or other–notonlycreate inherent problems butoftenspawn Grzegorz Makowski, Marcin Waszak and JusticeStateProject? Anti-crisis Shields:CompletingtheLaw vs. Corruption Polish LegislationduringthePandemic tutions whose resources should, in principle, be accessible based on openness, equal opportunity or opportunity equal openness, on based accessible be principle, in resourcesshould, whose tutions group oraparticularsocialgroup) are capableofcontrolling variouspublic,businessandotherinsti- better captured intermsofparticularism, when relatively narrow groups (apolitical party, aninterest cy, whichwill be fundamentaltoouranalysis later in this paper. Yet the nature of corruptionmay be Controlling Corruption R. Klitgaard, Controlling , Berkeley 1988.

1 Accountability is not plausible without transparen -

1 Stefan Batory Foundation way whileopeningthesessionof8 of Polish Prime Minister ), the senior speaker, formulated this concept in the best father (the Morawiecki Kornel agenda. political its pursue to them use freely can party The stitution. people, orthesovereign, andthatit alone canwieldall the instrumentsofpower, includingtheCon- that thepower ofthepolitical partythatwontheelections is the pure emanationofthewill of the belief the as described briefly be can It documents. policy PiS in and politicians party ruling by made ism, another characteristic of the PiS style of government, as constantly manifested in statements known“Nowogrodzkaas addressthe Street”, PiS’sof .in headquarters decision- to leads This has divertedthereal decision-makingmechanismoutsideformalinstitutionsintoitspartyapparatus, government PiS the Meanwhile, balances. and checks of system democratic the of part and debate has been strippedof its prerogatives, becoming a voting machine rather than a platform forpolitical vice and otherconstitutional institutions, including the Supreme Chamber ofAudit.Theparliament Prime examples includethepoliticised Constitutional Tribunal, commoncourts,theProsecution Ser- tive branches ofgovernment, which in principle shouldprovide the right amountofcounterbalance. as trade associations,civil society organisations andsoon),ithasalsoweakened othernon-execu- taken over all the instruments of governance, thus weakening local and regional governments (as well only not has government central the power: of concentration the Firstly, characteristics. basic of ful at the analytical and research paperspublishedso far anda set of direct observations point to a hand plete profiles of the party (PiS) system of government have been developed yet, a look while usingittostrengthen itspower. discretionary decisionsandincreasesto keep theriskofcorruption. Itmustbehoping control itunder it reduces thechancesofitbeingheldaccountable formisconductoromissions,giveswaytomore ruling coalition must realise that,by weakening themechanisms ofsocialandinstitutional scrutiny, outlined above, and in a sense to amplify corruption as such. ‘In a sense’ because we assume that the be usedthroughout this paper to mean a conscious endeavour to amplify its major characteristics, as ble to corruption than any other system. The term ‘closing the gaps’ in the PiS government system will transparent and unscrutiniseddecision-makingmechanisms.It is therefore inherently more vulnera- far hadsomedegree ofautonomyfrom theexecutive, butalsocreates more spaceforinformal,un- The whole construct not only undermines the division of powers andall the institutions that have so of government. vant in our further assessment: the conservative Catholic national ideology that underlies the system of power, party patronage anddecisionism, there is another characteristic that will appear less rele- enable themtotake control ofallthekey institutions. Besides theconcentration anddeformalisation partners consistently bypassed orbreached theConstitution while making lawsinawaythat would 2 4 itarianism, Chaos”,https://www.youtube.com/watch?v=HsqkkqV0i90 [accessed:28October2020]. , Oxford 2019;StefanBatoryFoundationDebate:“LawandJusticeinPower.’s ConstitutionalBreakdown Democracy, Author- w latach 2015–2019.Diagnozaandkonsekwencje Stefan BatoryFoundation,Warsaw 2020;G.Makowski, Koncentracjawładzyasasposóbrządzenia obozuZjednoczonejPrawicy 3 countries/zambia/48912957.pdf, s.25–36[accessed:30September2020]. room forcorruption and abuseofpower, leveraging adistinctive style of governing. Even before thepandemic,right-wingfactionthatrulesPolandhadconsiderably expanded the exclusively, availabletothegroup inpower orcircles thatsupportit. free competition (suchasjobsinthepublicadministration orpubliccontracts) yetare mainly, oreven us. Lawthatdoesnotservethenationequalslawlessness”. See: ContextualChoicesinFightingCorruption:LessonLearned Transcript ofthesecondsessionSejmRepublic ofPolandon25November 2015. for“grandcorruption”:See: G.Makowski, thePolishgovernment’s Layingthegroundwork (anti-)corruptionactivitiesin2015–2019 , „StudiazPolitykiPublicznej”2019,Stefan BatoryFoundation,4(24);W. Sadurski, th The law is there toserve “The lawisthere proclaimed: he when 2015, in , editedby A.Mungiu-Pippidi,2011,http://www.oecd.org/ 4 Inthefollowing years,PiS and its coalition 2 3 While no com- , -

2 Stefan Batory Foundation 1.  course; here, weuseoneofthem): dis- public in used been have shields the numbering of ways different (several COVID-19 to directly We assessedfourpiecesoflegislation known asanti-crisis shields andotheracts of parliamentlinked the pandemic,aswellpotentialempiricalstudies. preludein-depth assessmentsofthelinksbetweencorruptionandpolicyresponse tofurther, to a as interpreted be therefore must It 2020. September of end the until March early from period the the pandemic(new versionsofshieldshavealready beendrafted) whenitwascompleted.Itcovers of this paper believe to be corruption-generating policies adopted under the guise of the fight against aspire tobeexhaustive, especially because little was known aboutthereal impactofwhattheauthors not does analysis This laws. other to changes of back the on laws these to ‘added’ were that visions pro- on mainly but corruption, foster that pandemic the to linked specifically provisions the on only not focus will we shields, the Evaluating pandemic. the to response party’s ruling the of part major a Several special-purpose lawswithassociatedsecondarylegislation, known asanti-crisis shields, form The Anti-crisisShields:PillarsofAnti-COVID Policy accountable. will faction right-wing remain beyond control and liability for its decisions, and with decreasing chances of ever being held the where one government, of system the in gaps’ the all ‘close finally to of current government’s policies to mitigate the impact of the pandemic, has not been taken advantage the by specifically more and virus, COVID-19 the by caused crisis the whether test we Secondly, rule. of powerabuse and corruption thatexceedsrisk level theveryhigh afterseveral yearsofright-wing main components of PiS-governed Poland’s anti-contagion policy have contributed to a higher risk of Based on these considerations, this paper has two objectives. Firstly, it seeks to demonstrate how the 2.  harmful. authors. Needless to say, anyformormanifestation ofcorruptionshouldbeseenasdangerous and the to according threat, corruption a of terms in weight relative the reflects addressed be will issues ment approach toevaluate the impactofsomelanguagein legislation. The order inwhich This paperwill not analyse these provisions individually. Instead,it will use acorruptionriskassess - 4.  3.  374, aslateramended)– and Associated Crisis Situations and Certain Other Laws of 2 March 2020 COVID-19 Diseases Combat Contagious and Other Counteract and to Prevent, Measures Specific on Law of Laws2020,Section568,aslateramended)– Contagious Diseases and Associated Crisis Situations and Certain Other Laws of 2020 31 March Other and COVID-19 Combat and Counteract Prevent, to Measures Specific on Law the amending Law of Laws2020,Section1086,aslateramended)– in of Connection Composition Process with Approval the Incidence of COVID-19 of 19 June 2020 Simplified and COVID-19 by Affected Enterprises to Extended Loans Bank on Interest Subsidised on Law (Journal of Laws2020,Section695,aslateramended)– (Journal Law on Specific Support Instruments in Connection with the SARS-CoV-2 Spreading Virus of 16 April 2020 Shield One. Shield Two . Shield Four. Shield Three. (Journal of (Journal Laws 2020, Section (Journal (Journal (Journal (Journal

3 Stefan Batory Foundation process creates acorruptionriskonitsown. unveiled some new ways of ‘closing the gaps’ in the system. The lack of transparency in the legislative tive process ofadoptingtheshieldsrevealed theclassicmodusoperandiofthisgovernment, butalso legisla- The power.exercising of system or model its in gaps’ ‘closethe to efforts faction’s right-wing Firstly, we will discuss what seems to be a technical issue, but really touches on the key question of the Lobbing Non-Transparent LegislativeProcess andUncontrolled have used existing instruments to mitigate these types of crises. In particular, the government could seems tobenoreasonable excuse forthisconduct,especiallyinlightofhow the government could illustrates thehaste,rashness andunavoidabledefectivenessassociatedwith thelegislation. There anti-contagion legislation has beenacaptivatingexercise inits own right.Thisvery basic summary A the needtoclearthemforcompliancewithhugebody oflegislation applicable attheEUlevel. forced amendments through inotherlaws,alongwiththesecondary legislation, was enormous,withoutmentioning of number the and legislation of volume the Meanwhile, sub-committees. or took a few days to enact – again, without consultations or extensive debate in select committees only shields two first The days. 14 just was laws these pass to time average the Sejm, the the In records. in filed review interdepartmental an even or consultations any without all, at time no in drafts the processed government the but proposals, government are amendments the of Most case. the activity It mightonlyhavebeenaformalmistake,analysis suggests. butitstill should nothavebeen website (RCL) Centre Legislative Government the on nature oftheprocess ofdrafting andadoptingjustfourbills. The Shield One bill was even published The table above summarises a handful ofsimple statistics that illustrate the intense and helter-skelter Source: Authors’analysisbasedoninformationtheSejmandGovernment LegislativeCentre (RCL)websites Shield 4 Shield 3 Shield 2 Shield 1 thorough analysis of the legislative process in connection with these and other ingredients of the 9 April of 2April) members’ bill private (concurrent 7 April 26 March 2 March RCL website publication Date of (32 days) 22 May–22June (15 days) 2–17 April (5 days) 26–31 March (6 days) 1–6 March Sejm process inthe of legislative Total duration 56 65 66 15 laws or repealed # ofamended after it had beenpublishedby the Sejm, website 0 1 3 33 documents legislation secondary # of Total: 94 3 (PaperNo.382-A) 91 (PaperNo.382) Total: 203 64 (PaperNo.324) 139 (PaperNo.330) Total: 153 68 (Paper299-A) 85 (PaperNo.299) 22 reasoning) draft ofbill(w/o # pagesinthe1 st

4 Stefan Batory Foundation have announced a stateofnaturalhave announced disaster 8 , „StudiaSocjologiczne” 2010,Issue1(196),p.73. capture as awhole”. See:Ł.Afeltowicz, Zawłaszczonepaństwa,siecispołeczne andwyobraźniasocjologiczna.Krytycznaanalizak sectors by wayofdistortingthefundamentalprincipleslawand regulation withapotentialtocausemassivelossessociety officials. Inaddition: “Allformsofstatecapture geared towards obtainingbenefits byasmall groupofindividuals,companiesor laws, regulations, decrees orgovernment programmes inexchange fortheunlawfulandsecret deliveryofprivategainstopublic companies) orgroups ofthem,bothinthepublicandprivatesector,withintentionto exert influencetoobtainfavourable 7 wyborow-prezydenckich-28-czerwca/ [accessed:27October2020]. 6 three emergency statesdefinedinPolishlaw. not capture thesituationdiscussedhere precisely. However, theconceptof“state istoogeneral, asitcovers ofemergency” all 5 es, but also because it breached the European Electronic Communications Code (Directive 2018/1972 The latter amendment sparked controversy, not just because it was putforward in those circumstanc- changed theappointmentprocess inawaythatwouldremove theSenate’s input(Article61). and (OEC) Electronic Communications of Office the then-presidentof removalthe allowedthe of that provisions containing amendment an forward put suddenly MP PiS one session, night a Committee, Select Finance Public the in shield the drafting of stage last the During cancelled. be to (5G) Internet high-speech of development and construction the for frequencies for auctions ongoing the allowed and thefailure toappointanExtraordinary Select Committee. Specifically, the Ombudsman questioned the failure to observe a minimum interval between readings nal, arguing that the amendments hadbeenmadein violation of the Rule of Procedure of the Sejm. The Ombudsmanchallengedall four anti-crisis shields by referring them to the Constitutional Tribu- promised thelegitimacyofdemocratic institutions andprocesses topushitsagenda. 2020 breached the Constitution capture, to further the ruling party’s interests. The presidential election held in late June and early July unconstitutional changes forced onto other legislation and foster corruption, broadly defined as state with filled are shields four all result, a As re-election. of chances Duda’s reduce would crisis evolving ter wouldautomatically postpone theelection,even formonths,andtherulingcampfeared thatthe that President would be re-elected for a second term. Declaring a state of natural disas- simply becausetherulingpartywantedpresidential electiontogoaheadassoonpossible,so imal dialogue with the public and the parliamentary opposition. That measure was never adopted, some ofthepressuredecision-makers off legislators todevise and detailedpolicieswithatleastmin- contained an Article 14 Paragraph 8, which amended the TelecommunicationLaw. the amended which 8, Paragraph 14 Article an contained April 16 on adopted Three Shield system. government PiS the in gaps’ the ‘closing of context the in The hasty and untransparent legislative process has given rise to another development that is crucial this process washandledwouldalwaysbearecipe forincreased corruption. adequate legislation. Indeed, this alone of may be sufficient tostandards question the laws’ constitutionality.the In general, how all mocked parliament and government the by processed were shields essarily act in the spirit of public interest or laws and regulations. Furthermore, the way in which the all of this is conductive to a process of changethat favours narrow interest groups that do not nec- of amendmentstootherlawsimposedbylack ofpublicconsultationsandhugenumber theshields – 9 pl/7,75398,26373486,adam-bodnar-zaskarzyl-do-trybunalu-konstytucyjnego-cztery-tarcze.html [accessed:27October2020]. J. Łukaszewski, antykryzysowe” AdamBodnarzaskarżyłdoTrybunału Konstytucyjnego „czterytarcze According totheclassicdefinitionused by the World Bank,statecapture isasetofactions by individuals,entities(e.g.private Statement Regarding Presidential Electionson28June,https://www.batory.org.pl/oswiadczenie/stanowisko-w-sprawie- Polish lawdistinguishesbetweenthree typesofstatesemergency. TheEnglishconceptof“state does ofnatural disaster” Journal ofLaws2019,Section2460(Codification); JournalofLaws2020,Section374and695. 6 and was a classic case of state capture. 5 at the start of the pandemic, which wouldhavetaken atthestartofpandemic, 8 Thehurriedparliamentaryprocess, 7 Again, the ruling party com- , https://wyborcza. 9 Theamendment oncepcji state

5 Stefan Batory Foundation competing for the frequencies if it is found to be a threat to national security. national to threat a be to found is it if frequencies the for competing from disqualified be to vendor any allow that provisions included bill draft The September. early in consultations public for Law Procurement Public the and System Cybersecurity National the on Law nies, ahypothesis well substantiated by the factthat the government sentoffabill on amendingthe compa- US to favourable contract frequencies 5G a of awarding the for way the pave to wanted ably prob therefore - It influence. US to susceptible quite is government right-wing Polish The companies. land. Ithasalsobeenknown thatthekey playerswithanappetiteforthismarket are USandChinese extremely lucrative with the advent of the 5G, especially in relatively large European countries like Po- lomatic lobbing. It has beenknown awhilethatthetelecommunicationservices market will become One possibleandfairlyplausibleansweristhattheseamendmentsmayhaveresulted from USdip- could havebeenbehinditotherthanthedesire totake totalcontrol ofanotherpublicinstitution? had barelyin mindthattheseamendments – whatelse anythingtodowithcombattingthepandemic paper). draftingthis of time the reactionat authorities’ Polish the about or matter the on Commission bythe steps further possible about information other any received not had Directive(we the violated shield the that reaffirmed and decision Warsaw’s about concern expressed market internal for missioner com- the digitisation, of minister the to letter special a In answers. requested Commission European unequivocally see this bill as an ‘anti-Huawei law’. The Chinese group itself speaks openly about it. about openly speaks itself group Chinese The law’. ‘anti-Huawei an as bill this see unequivocally involving the opposition-controlled Senate. legislation as atool to remove the president of OEC and replace him with their own appointeewithout should haveautonomyandneutrality from current politics. PiS and its allies used theanti-contagion on anopportunity to take full control of onemore institution which, in principle andinline with EUlaw, ad- be to ought case this dressed, of too. It illustrates aspects the process of other ‘closing the process, gaps’ in the legislative PiS government system the as PiS jumped of quality abysmal the Besides 2018). December 11 of Council the of and Parliament European the of 13 marcin-cichy-aukcja-5g [accessed:30September2020]. UKEprzerywamilczenie:Ija,iaukcjaS. Czubkowska, 5Gpadliśmyofiaramiwirusa Prezes pl/7,156282,25939333,niesterowny-prezes-uke-dlaczego-pis-chce-skrocic-kadencje.html [accessed:30September2020]; 12 uke-and-domaga-sie-wyjasnien-6510106822035585a.html [accessed:30September2020]. szefaUKEanddomagasięwyjaśnień broni Komisja Europejska concerned-with-polands-plan-to-change-telecoms-regulator-head-idUKL8N2CW5PF [accessed:30September2020];W. Ziomek, 11 biznes/46662-prezes-uke-na-tarczy-nocna-poprawka-do-tarczy-3-0-and-moze-sie-pakowac [accessed:30September2020]. 10 the process. in countries other with relations Poland’s leveraging fashion, untransparent utterly an in powers its triggered by the pandemic have created an environment in which the ruling party can freely extend haste the and lobbing of regulation inadequate the legislation, of standards any observe to Failure ful andobsoleteLobbingLaw. to totally uncontrolled lobbing(suggesting corruption),thelatter evidently aggravated by theunhelp- competition, itclearlyfellshortintermsofthetransparency ofthelegislative processresistance and Whether ornot the ruling party acted in good faithto protect national security or in bad faith to thwart huawei-kryteria-w-nowelizacji-law-ksc-sa-polityczne-a-nie-merytoryczne [accessed:30September2020]. 14 projekt/12337950/katalog/12716608#12716608 [accessed:30September2020]. Bill ontheAmendmentofLaw National CybersecuritySystemandtheP See: P. UKE. Szostak,„Niesterowny” Cichego?,https://wyborcza. prezes kadencjęMarcina DlaczegoPiSchce skrócić head,https://www.reuters.com/article/poland-eu-telecoms/eu-EU concernedwithPoland’splantochangetelecomsregulator See: U. Zielińska, A. Kozłowski, Huawei:kryteriawnowelizacjiUstawy oKSCsąpolityczne, aniemerytoryczne 11 Prezes UKE na tarczy? Nocna poprawka do Tarczy 3.0andmożesiępakować NocnapoprawkadoTarczy , https://cyfrowa.rp.pl/ UKEnatarczy? Prezes 12 Moreover, in relation to the previous point – and bearing , https://www.money.pl/gospodarka/komisja-europejska-broni-szefa- ublic Procurement Law,https://legislacja.rcl.gov.pl/ ublic Procurement , https://spidersweb.pl/plus/2020/05/ 10 , https://www.cyberdefence24.pl/ It was only natural that the 13 Experts in the field the in Experts 14

6 Stefan Batory Foundation questions sent to the Ministry of Health; simple some mentioned the to word ‘censorship’. replies for waiting kept were Journalists virus. the combatting for strategy government’s the and COVID-19 of severity the to came it when chaos massive there spring, the in pandemic the of peak the At information. public to access for requests as processed be would requests their Law, to journalists, professionals whoseworkrelies on thesearch fornew information.UnderthePress right of access to public information, the right has been denied not only to ‘ordinary’ citizens, but also resolve the dispute in court. In addition, as a result of amendments to the legislation that defined the request for access to public information effectively lost his or her right to obtain this information or to citizen involved in adisputewithanypublicentity over not beinginformedwithregard to his orher object on the grounds ofstalling on the part ofpublicauthorities. Based onthe new provisions, any not could client the and ignored be simply could request A proceedings. of kinds these initiate even entity,public not bya could information public to grantedaccess being not requesting,but party the – Article15zzrParagraphinformation, tobesuspended 1 Subparagraph 1 ofShieldOne.Furthermore, shield introduced provisions allowing administrative proceedings, suchasgranting accesstopublic first the dimension, regulatory purely the In problems. of types two to rise give policies Anti-COVID information naturally increase the riskofcorruption. speech andmediacannotbeguaranteed. Allmeasures, legislative or other,thatlimit access topublic cannot exist without access to information and whencivil rights and liberties such as the freedom of they are the ones wholegitimise the process and must therefore be informed.Again,accountability democracy and theruleoflaware foundwhere thepolitical process is transparent to citizens because mental Impact Assessment of 3 October 2008. Environmental Protection Information, PublicParticipation in Environmental Protection and Environ- on hold all requests for access to public information filed under the Law on Sharing Environment and right). of Article233 Paragraphcivil and human 3 oftheConstitution(accesstojusticeisafundamental of their right to defend their right of access to public information before courts, a clear violation man andCitizensNetwork Watchdog Polandalso pointed out that the parliament deprived citizens information, defined as a human right according to Polish and international standards. The Ombuds- public to guaranteesfreeaccess which Constitution, the of provisions61 breachedThe Article clearly consultations ofdecisionsbefore they were finally made,either. es regarding nature conservation, a cause close to many citizens’ hearts. They could not participate in to PublicInformation shrined in the Constitution and primary legislation, including the Law of 6 September 2001 on Access subsidies orgrants orare otherwisesupportedby the government isafundamentalcivil right en- state-controlled companies,municipalentities that provide publicservices, use public Access to information on the performance ofpublicauthorities and publicsector entities, including Thwarting AccesstoPublicInformation 17 16 15 dostepu_do_informacji_publicznej.pdf [accessed:30September2020]. 30 September2020];Ombudsmanletter ref. VII.6060.19.2020.MM,https://www.rpo.gov.pl/sites/default/files/WG_do_MSWiA_ws_ 2020 Counteract andCombatCOVID-19 andOther ContagiousDiseasesandAssociatedCrisisSituationsCertainOther Lawsof2March 19 18 pozniej-uciekamy-z-kina-wolnosc-z-punktu-widzenia-lukasza-warzechy/ Ł. Warzecha, 30latpóźniejuciekamyzkina„Wolność”–punktuwidzeniaŁukaszaWarzechy Journal ofLaws2018,Section1914(Codification) Journal ofLaws2019,Section1429(Codification) the Law on Specific Measures to Prevent, Statement by theCitizens NetworkWatchdog to PolandAssociationregardingPrevent, theLawonSpecificMeasures Journal ofLaws2020,Section283t.j. (Journal ofLaws 2020.374),https://siecobywatelska.pl/wp-content/uploads/2020/04/List_Marszalek_Grodzki.pdf [accessed: (Journal 19 Following theposition of Watchdog Poland,it should beunderlinedthattherightmustnot 15 and the Press Law of 26 January 1984. 18 Citizens could no longer participate in public process- [accessed:30September2020]. 16 Underlyingthisrightisthebeliefthat , 14April2020, 17 The rulingparty put https://sdp.pl/30-lat-

7 Stefan Batory Foundation pandemic in June. in pandemic that themayordiscloselevelwho haddemanded of bonusesandpromotions granted duringthe For example, the Provincial Administrative Court in Łódź ruled in favour of a local community member the validity of theprovisions,In addition,somecourtschallenged only little whichoffers consolation. mation aboutcitizens’healthandsafety. demonstrates the potentially grave social consequences of the government withholding Foundation critical infor - ePaństwo the by exposed case The 2020. May until suspended was information public as accessto much later.Thepublicscrutinymechanismwasnotworking, surfaced plans ofthiskind (for example, modifications of local zoning plans can have a fundamental impact on the community). to keep track of this decision-making process and it is vulnerable to abuse with serious consequences their voting choices and sent them on to their colleagues for more signatures. It is virtually impossible repeatedly adopted as a result of the chair sendingout drafts to council members, whothenmarked deadlines ofadministrative proceedings. the reinstated that amendment an of virtue by 2020 May in repealed was law above-mentioned The legislation inthefirstplace,whichaddscontroversy totheseprovisions intermsofconstitutionality. withheld, even inastateofemergency. Infact,theshieldswere awayofavoidingtheemergency state 24 pdf [accessed:10October2020]. samorządu, https://www.batory.org.pl/wp-content/uploads/2020/11/Tarcze-antykryzysowe-dokończenie-budowy-państwa-PiSu. 23 22 WUDFkUIyuSxI8w7nE5TItdGnusWHfyY [accessed:28October2020]. pl/2020/10/23/ministerstwo-zdrowia-nie-mialo-zadnej-strategii-walki-z-koronawirusem/?fbclid=IwAR3Vqm7ldooaIrJMrijxKY-4xX0Z 21 20 sessions were held by circular. decisions from home,whichincludedcouncilandregional parliamentsessions.Infact, someofthe At the local level, these limitations coincided with a law allowing council employees to work andmake exclusively ondailygovernment statements,withoutbeingabletocorroborate thefacts. withhold information about the response to COVID-19. For weeks, the Polish people had to rely almost media, withhold all information about the development of the pandemic or related procurement, and Indeed, the government was in a position where it could ignore questions from representatives of the by therulingpartyblocked accesstoinformationpotentiallyrevealing government overspending. imposed provisions the Notably, action. legal taking citizens of cases few very were there However, theyas such and Access toInformation, the Lawon under were notcoveredby thesaidArticle15zzs. days 30 within them hear requiredto courts with urgent,considered be should information, disclose to records concerningthesekindsofdecisions,ifthey hadwantedtochallengethem. access topublicinformationmayhavemeantthattheyIn addition,thesuspended hadlimitedaccess o h pnei i te uun f 00 h Fudto hd agt h Mnse o Hat make Health of Minister the a false statement suggesting that such plansexisted. caught had Foundation The 2020. of autumn the in pandemic the to average. For example, the ePaństwo Foundation filed a question about government plans to respond on years several even or months of dozens taking pandemic, the before efficiently processed being not were information public for Requests ones. new the barred and requests ongoing of thousands were inforce. Nobodycollectedthiskindofdata.Itiscertain,however, thatthey didnotspeedupthe cessed forabouttwomonths.Itishard toassessthedamagecausedby theprovisions while they czasie-COVID,504478.html K. Kubicka-Żach,SesjeradwczasieCOVID – czasembeztransmisjiandjawności pandemiiafunkcjonowanie Antykryzysowe –dokończenieH. Izdebski,Tarcze budowypaństwaPiS-u?Ustawodawstwo okresu Ref. IISAB/Łd12/20. , 23October2020,https://epf.org.pl/A. Toeplitz, niemiałożadnejstrategiiwalkizkoronawirusem MinisterstwoZdrowia Journal ofLaws2020,Section875,aslateramended. 22 The Court ruled that complaints about government inaction, leading to failure to [accessed:16November 2020]. 23 Citizens Network Watchdog Poland pointed out that resolutions were 20 However, requests for access to information were not pro- 21 Unfortunately, thetruththat there were no , https://www.prawo.pl/samorzad/sesje-rad-w- 24

8 Stefan Batory Foundation os tothelegalsystem. a great dealofperplexity when it came tointerpreting theprovisions and addeduncertainty cha- suggests the haste and negligencepresent throughout the legislative process. The wording caused “the contagious disease”. This is not just about trivial nitpicking. Again,the lack of logic in this wording of “the state of epidemic threat and uses the word instead of or a state of epidemic” “this epidemic” instead difference15w isthatthelatterusesterm“thestateofepidemic” betweenArticle10cand at riskwithoutsuchinfringement”.Thesameshieldcontainsanalmostidentical Article 15w. Theonly the of where purchase such interest, goods or services could not have been made or had been considerably public the in acts person that if disease contagious the combat to services or goods essential purchasing a or a state of epidemic announced as tort shall be committed by “whoever in the state of epidemic threat opted by the Sejm on 31 Marchby31 opted on Sejm 2020. the ad- Two, Shield was type this of legislation of piece first The crimes). corruption (including crimes of variety a for individuals indemnified fully or liability reduced that shields the with policy, anti-COVID Another type of potentially corruption-generating legislation emerged within the framework ofthe for PublicDecisions Impunity andAccountabilityofPoliticiansCivilServants the doortocorruption. the law had been enforced. With their constitutionally questionable provisions, anti-crisis shields open of irregularitiesthe number orcasesofcorruptionthatcouldhavebeenexposed oreven prevented if mation. We are unlikely to beable everthe scaleofabusewhilethey understand were inforce or In practice, the provisions have hadachilling effect whenit comes to the rightto access publicinfor- 26 25 the money. payers’ money or otherwise mismanaged the process or failing to stick to procedures while spending tax- squandering for liable held be would nobody terms, simple In liability. disciplinary and criminal from Law Finance Public the of breach in COVID-19 fight to resources other or services equipment, The legislation being discussedexempts people whomanage public fundsandwhomay purchase ol b epce t vrf tee ae i te wr ee calne. oee, h ue f rather of use the However, challenged. ever were they if cases these verify to expected be would plicable laws and regulations. Law enforcement agencies, the Prosecution Service and possibly courts ap- the violating without made be not could purchase the if and interest’ public the ‘in acted person the if justified be only would behaviour of kind this that stating end the at disclaimer a include sions companies or civil society organisations that use any public money (such as subsidies). Both provi- for example, at state-owned companyemployees, hospitals, schools and all public entities, private It must beunderlinedthat both Article 10c and Article 15w applied to civil servants andotherpeople; 30 September 2020]. 2020(Paper No. 96) 28 March Counteract and CombatCOVID-19Prevent, andothercontagious diseasesandassociatedcrisissituationscertainotherlawsof 27 wierzycieli result of result COVID-19 infringes his or her official duties or relevant the applicable laws regulations and while P. Karlik,Analizaprawna:wyłączenieprzestępnościart.296k.k.wramachtar Journal ofLaws2020,Section568. Statement by the Helsinki Foundation for Human Rights regarding the Law amending the Law on Specific Measures to theLawamendingonSpecificMeasures Conf. StatementbytheHelsinkiFoundation for HumanRightsregarding , Warsaw 2020. 27 Thesetypesoffailures are considered classic examples ofcorruption. , https://www.hfhr.pl/wp-content/uploads/2020/05/HFPC-Senat-druk-96_opinia.pdf [accessed: 26 25 Article10coftheshieldprovided thatnocrimeordisciplinary czy antykryzysowejapotencjalnepokrzywdzenie

9 Stefan Batory Foundation tion reporting standards. considerable freedombut maintainminimumscrutinyandimposebasictransac inpublicspending, - for example, singlesource procurement oracompetitive procedure withnegotiation–they allow apply existing measures andonesthatare acceptableundertheapplicablepublicprocurement law; ignored the recommendation ofthe European Commission and other international organisations to legislature Polish the so, doing By competitiveness. and transparency contracts: government of ket the publicprocurement legislation, thereby shaking thefundamentalprinciplesof enormous mar- defies who anyone for indemnity discretionary very possibly and extremelywide to door the opened and uncontrolled spread ofadiseaseorifthisiswarranted by theprotection of publichealth”. This chase of goods andservices from the public procurement law “if there is high probability of rapid pur- any exempted fully that 6 Article an included 2020, March 2 on adopted One, Shield Moreover, otherwise purchase means thatthesafeguards are quiteweakandopentobroadthe interpretation. make to possibility of lack the or interest’ public ‘the as such terms vague 28 in taxpayers’ money could leak out of the public procurement system without any control whatsoever, złoty of billions of tens which of result a as months, many last to up set been has system multilevel A diligence inperforminghisorherduties. failing to act according to the law or the company articles of association and/or failing to observe or due acting liquidator or director officer, an to attributed losses to applies provision This Companies. Commercial of Code the of 483 Article under PFR representing people indemnified 2 Paragraph in marked formitigating thesocialandeconomicimpactofpandemic. Incidentally, thesame article of publicexpenditure discipline.PFR wasdesignatedby theshieldsasoperatorear- ofthefunds exempts violations and Code Criminal which the of 296 and 10c, 231 Article under liability from Article PFR representing people to similar very 76, Article includes shield same the Moreover, drafted. being was paper this when force in still were and retained were 10c, Article and 6 Article troversial the up’ ‘clean to attempt provisions an becauseArticle15wwasrepealed buttheremaining provisions, includingthemostcon- been have must 2020) April 16 on (adopted Three Shield Meanwhile, fraud. and otherentities (mainly state-controlledand commiteconomic companies)thatusepublicfunds mance of a contract, but in connection with Article 296 of the Criminal Code, applicable to enterprises Article 15s, indemnifies failure to collect receivables originating from non-performanceor malperfor - that would require that kind of change. Furthermore, note Article 15t in Shield Two which, similarly to contract, provided that the parties notify each other immediately of circumstances linked to COVID-19 does notconstituteaviolation ofpublicexpenditure discipline,justlike anamendmentofapublic inating from non-performance or malperformance of a public contract (in connection with COVID-19) other for indemnity types of abuse. Shield Two contains Article 15s, which provides that failure to collect receivables orig- introduced that provisions by accompanied were measures these Moreover, during thepandemic. businesses supporting for budgets enormous manages which (PFR), S.A. Fund Development Polish the and Krajowego Gospodarstwa Bank by completed transactions purchase adding by further even provision the extended Two Shield Moreover, transactions. purchase on report and record to ments 29 [accessed: 30September2020]. tvn24.pl/polityka,112/prawne-bezpieczniki-ktore-znosza-odpowiedzialnosc-za-dzialania-w-czasie-epidemic-analiza,1016003.html P. znoszą odpowiedzialnośćzadziałaniawczasieepidemii.Analiza Jaźwiński,Prawne bezpieczniki, które J. Hołowińska, P. Trębicki, Ministradopadłazemstazamówieńpublicznych 29 The provisions in Article 6 allows total freedom, with no minimum require- , „Rzeczpospolita”, 28May 2020. 28 , https://konkret24. 10 Stefan Batory Foundation covered by this justification or the category of people subject to indemnity were not defined. they need to do is prove their intention, a subjective qualification of any deed. The scope of torts to be not expected todemonstrate whetherornottheir actions actually helped containthepandemic–all inflict bodily harm on someone, e.g. for not wearing a face mask properly. Note that perpetrators are like under the guise of a true or apparent intention to counteract the pandemic: steal, bribe, batter or scope ofindemnityandcoverage. Thewording oftheprovision meansthatyoucandowhatever you to procurement and the discipline, spending the government suggested extending it in terms of the comes it when impunity guaranteed Having infringement”. such without risk at considerably been had or possible been have not could action such where and interest public the in acting while COVID-19 counteract to order in regulations and laws applicable or duties official infringes whoever by committed be shall crime “No read: which 10d, Article by followed 10c, Article infamous the contained bill the of to seekcompensationfordamage. right the lose would crimes these law,of into victims made if that, indicates Rights Human for dation Foun- Helsinki the assessment, its In abuse. historical any to retroactively apply would It enactment. professionals legal were quick to Moreover,point out that the desired.proposed bill indicates that it be will apply to acts committed to prior to the much very leaves legislation the of quality the Again, byamended Article 10c wassuddenly indemnity under when the almostidenticalArticle15w. adding tially, Article 10d ‘absorbs’ Article 10c. That means a replay of the developments several months earlier crimes ifthey committed in connectionwithanintention to containthepandemic. If thiswerea bill was senttotheSejm notenough, on 12 2020 August further extending impunityfor discretion andimpunity. governmentspace forthepotentialabuseofpower mastermindedahuge withpractically guaranteed again underthelaw, there were norecords ofpurchase transactions ordecisionstoscrutinise.The because it was simply put on hold forover two months. Whenpublicinformationcouldbeaccessed cult toprove theguiltofperpetrators incourt.Publicscrutinyisnot even anissueinthiscontext diffi- very be would it Ultimately, cases. of kinds these on taking from agencies enforcement law age provisions. While this is true, these qualifications are very soft and discretionary; in fact, they discour- only if an individual acted in the public interest and it was not possible to act without infringing the ex- an emption from anyinvestigations by lawenforcement ortheProsecution Service. The indemnityworks includes This budget. country’s the to risk a pose could that decisions poor for indemnified resenting thisinstitution. Politicians, civil servants andotherswhomanagepublicmoney are fully ProtectionConsumer petition and decisions madeby –and thePFRpresidentother peoplerep and - ofCom- Office the and Office Procurement Public the regulators: market the by scrutiny any without https://www.hfhr.pl/wp-content/uploads/2020/08/druk-sejmowy-nr-539-opinia-HFPC.pdf [accessed: 30September2020]. 32 dogmatykarnisty.pl/2020/08/przepis-na-doskonala-bezkarnosc-za-naduzycia-wladzy/ [accessed:30September2020]. nowelizacjiustawyantyCOVIDowejwalce-z-pandemia/; Przepis nadoskonałą bezkarnośćzanadużyciawładzy:projekt , https://www. 31 xsp?id=1E73599B685D1E1AC12585C200369CEC [accessed:30September2020]. Other ContagiousDiseasesandAssociatedCrisisSituations 30 by veryspecificconsiderations, asthispaper explains. more likely. Yet thecontext inwhich thisproposal wasmadestrongly suggeststhatitwasmotivated seems latter the adopted, and drafted were laws anti-COVID the all which in format the by Judging It is hard to tell whether the provision is the result of in-depthdeliberations or legislative negligence. Opinia na temat projektu zmierzającegodozalegalizowania bezprawnychdziałańpopełnionychwceluprzeciwdziałania COVID-19Opinia natematprojektu G. Makowski, Bezkarnośćniepomożewwalcezpandemią CounteractandCombatCOVID-19 to and Prevent, Private members’BillAmendingtheLawonSpecificMeasures 32 (Paper 539),http://sejm.gov.pl/Sejm9.nsf/PrzebiegProc. , https://www.batory.org.pl/blog_wpis/bezkarnosc-nie-pomoze-w- 30 The first version first The 31 Essen- , 11 Stefan Batory Foundation where this provision was actually applied were extremely rare, at least in June 2020. nalists and experts monitoring the enforcement of Article 6 of the anti-crisis shield suggest that cases public procurement law, oral comments made by the president of the Public Procurement Office, jour- pending the right of access to public information.For example, with regard to the exemption from the sus- law the of damage the assess to hard is it like just misconduct, of types specific for impunity on law of the damage the to assess difficult genuinely is it laws, these of impact specific the of terms In Article 10dwasatthesecondreading stagewhenthispaperwascompleted. wanted to cover: the abuse of power and economic crimes (a type of corruption in the private sector). move tonarrow down theindemnityindirectly revealed thetypeofactionsproponents ofthebill party explained anddefendedthe idea in the media. of theconceptnecessity stipulated intheCriminalCode.Thisishow somepoliticians in theruling the value of the salvaged good”. The exemption is likely to have been designedas a detailed extension had been considerably at risk without the said infringements and the sacrificed good has a lower value than companies). A rather vague disclaimer was added: “if the said actions could not have been completed or state-controlled cover to mainly was intention (the executives company and officials public to apply (Article 296 Paragraph 1, 1a, 3 and 4 of the Criminal Code). Essentially, the scope was narrowed to only powers (Article231 Paragraphcommitted similareconomiccrimes 3 oftheCriminalCode)and 1 and their abused or duties their perform to failed who those indemnified only it time, This provision. the within thegovernment andthevisible public dissatisfaction in mid-Septemberledto a new version of ganisations –includingTransparency International,aninternationalanti-corruptionorganisation The proposal causedconsiderable controversy, prompting oppositionfrom experts, civil society or- 34 condemnation-of-proposed-impunity-for-politicians-and-officials-in-poland [accessed:30September2020]. 33 crisis. Initially, the Minister of Justice did not make any statements about this initiative. He started signals ofhisreadinesscriticising itsharplylater,butthenstartedsending tocompromise. He initiative. this about statements any make not did Justice of Minister the Initially, crisis. and the general public. It also created tensions within the ruling coalition, leading to a government cases in late May and early June 2020, but there had been no news of any major developments until developments major any of news no been had there but 2020, June early and May late in cases been brought toaccountinanyway. TheProsecution Service had openedinvestigations into all these By the time this paper hadbeendrafted, noneofthe individuals responsible for the transactions had that it tries to replace theconcept ofnecessity with the conceptoftotal impunity. tratorsacts remains ofpunishable anextension ofimpunity. Alegalexpert evaluating the billargued delivered), which generated losses of hundreds of millions of złoty – the size of the risk is not trivial. never but for paid were items or bought was sources dubious from equipment (useless Health of try controversial failed purchase of ventilators, face masks, face shields and COVID-19 tests by the Minis- could expect thecorruptionrisktobelow, too.However, judgingby themostspectacularcases– 38 30 September 2020]. aktualnosci/nagranie-z-debaty-zamowienia-publiczne-w-czasie-kryzysu-nowe-zagrozenia-mozliwosci-and-wyzwania/ [accessed: 37 2020]. pl/166046,Stan-wyzszej-koniecznosci-jak-pandemia-konstytuuje-bezkarnosc-urzednikow,1,92,1.html [accessed:30September 36 Ustawa-COVIDowa-PiS-Nie-chodzilo-o-bezkarnosc-lecz-o-dobro-ludzi.html [accessed:30September2020]. 35 [accessed: 30September2020]. kryzys-w-united-right-wing-radoslaw-fogiel-o-sporze-z-solidarna-polska-dot-przepisow-zdejmujacych-odpowiedzialnosc-4697557 30 September 2020]. dywan, https://wyborcza.pl/7,75398,26115462,afery-ministra-szumowskiego-zostana-zamiecione-pod-dywan.html [accessed: oko.press/szumowski-and-tworca-piramidy/; J.Watoła, W. Czuchnowski, AferyministraSzumowskiegozostaną zamiecionepod Fogiel o bezkarności urzędników: przyjęliśmy słowo w słowo to, co zaproponowała SolidarnaPolska Fogiel obezkarnościurzędników: przyjęliśmysłowowto, cozaproponowała ImpunityForPoliticiansAndOfficialsInPoland Condemnation OfProposed See: interaliaR.Gruca, możliwościandwyzwania See: Debate:Zamówieniapublicznewczasiekryzysu.Nowezagrożenia, E. Rutynowska, Stanwyższejkonieczności: jakpandemiakonstytuuje bezkarnośćurzędników, https://www.prawo.egospodarka. Ustawa COVIDowa. PiS: Nie chodziło o bezkarność lecz o dobro ludzi Ustawa COVIDowa. PiS:Niechodziłoobezkarnośćleczdobro Ujawniamy interesy ministra Szumowskiego and jego żony z twórcą wielkiejpiramidy finansowej ministraSzumowskiego andjegożonyztwórcą Ujawniamy interesy 35 , https://www.rp.pl/Prawo-and-Sprawiedliwosc/200919300- Nevertheless, a narrower indemnity for perpe- , https://www.transparency.org/en/press/ , http://paktuczciwosci.pl/ , https://tvn24.pl/polska/ 36 Interestingly, the 37 Asaresult, one 34 Therow , https:// 33 – 38

12 Stefan Batory Foundation ment legislation) is set to remain in force until the end of January 2021, a fairly long period of time, of period long fairly a 2021, January of end the until force in remain to set is legislation) ment procure- public from people (exempting One Shield in 6 Article example, For well. as times other at COVID-19,against markedbut struggle bytimes the frameworks during legal only of not kinds these money. Thisisadangerous precedent thatdemonstrates that the government is capable ofcreating taxpayers’ using funded entities other at administrationor public the levelsof theyother occurredat serve as a point of reference, it is safe to assume there must have been more of them and it is likely to were Health of Ministry level the at developments only If assessed. properly be ever to unlikely is level oratindividual hospitals.Theextent oftheproblemby andtheassociatedcostborne allofus more orless material, cases ofabusethis type at that may the local have happened government hospitals. While this paper was being drafted, it was not possible to estimate the number ofother, instructor orthepurchaseventilators ofuselesstestsandfrom anarmsdealerthatnever madeitto could never be accounted for.Thisis not just about thepurchase ofdefective face masksfrom askiing Undoubtedly, the ruling party has created ‘liability backstops’ and room for abuse and corruption that have increased thechancesofavoidinganyliability in thefuture, evenof government. afterachange that lawenforcement agenciesandtheProsecution Service take anyaction in similar cases. It would ister Sasin. Article 10c of the shield is not enough to indemnify Prime Minister Morawiecki and Deputy Prime Min- ister could be brought before the State Tribunal or even before a criminal court. As a matter of fact, breached the Constitution. Most legal experts believe that, if the ruling becomes final, the prime min- the presidential election in May. The court confirmed that he had not only abused his power, but also hold to decide to power legal the had not had Morawiecki Minister Prime that ruled Warsaw in Court 2020, roughly whentheretroactive indemnity legislation was proposed, theProvincial Administrative possible abuseinthiscase, actually held. While the Prosecution Service refused to launch proceedings in connection with the be extended to cover actions in connection with the organisation of the May election, which was never October 2020. 39 Prime Minister Jacek Sasin cost the State Treasury and the Polish Post over PLN 70 million. Deputy and Morawiecki Mateusz Minister Prime by made decision the but held, not was election the Finally,2020. May exclusively in held presidentialbyelection post a organise to tried party ruling The election. presidential the organising in involved were who those but COVID-19, fighting in involved gations or abuse of powers, appearsto be designed to ensure security not so much forindividuals The latter oftheamendmentsoutlinedabove,indemnity forfailure concerning tocomplywithobli- decision-makers involvedescapejustice. disciplinary indemnityprovisions thatcover thecontroversial procurement decisionswouldhelpthe Sprawa-o-maseczki-Sledztwo-prokuratury-sie-rozszerza.html 41 orbicie-chaos-nazywa-porzadkiem-koszt-niekompetencji-cena-demokracji/ [accessed:30September2020]. 40 sledztwa,39543.html [accessed:30September2020]. poselskiego śledztwa,https://www.termedia.pl/koronawirus/Jak-wadliwe-testy-trafily-do-polskich-hospitals-wyniki-poselskiego- zdrowia-6541472437729409a.html , https://www.money.pl/gospodarka/respiratory-pod-okiem-prokuratora-dwa-watki-sledztwa-w-resorcie- zdrowia w resorcie sledztwo-6512073616406657a.html [accessed:30September2020]; wszczęłaśledztwo ministerstwa. Prokuratura sledztwo-ws-wyborow-prezydenckich-po-trzech-godzinach.html [accessed:30September2020]. 42 30 September 2020]. sad-Prime Minister-bezprawnie-zlecil-wybory-poczcie-but-za-razace-lamanie-prawa-morawiecki-raczej-nie-odpowie/ [accessed: G. Zawadka,I.Kacprzak, Sąd: Premier bezprawniezleciłwybory andnaruszyłkonstytucję.M. Jałoszewski, Aleraczejzatonieodpowi Sąd:Premier M. Danielewski, Sasinnaorbicie:chaosnazywaporządkiem,koszt niekompetencji –cenądemokracji Kto umorzył śledztwo ws. wyborów prezydenckich potrzech godzinach,https://www.rp.pl/Prawo-karne/304249949-Kto-umorzyl- prezydenckich Kto umorzyłśledztwows.wyborów 41 In all likelihood, this is why aprovision was tabled in Augustproposing that the indemnity 39 It seems that even if anyone were to be charged in these cases, the criminal and Sprawa o maseczki: Śledztwo prokuratury sięrozszerza Sprawa omaseczki:Śledztwoprokuratury [accessed:30September2020];M.Stelmach, 42 the creation of such a broad justification would have lifted the obligation , https://www.money.pl/gospodarka/maseczki-dla-ministerstwa-proukratura-wszczela- [accessed:30September2020];P. Orlikowski (oprac.), Maseczkidla Respiratory pod okiem prokuratora. Dwawątkiśledztwa Respiratory podokiemprokuratora. Jak wadliwetestytrafiłydopolskichszpitali–wyniki , https://www.rp.pl/COVID-19/305249949- , https://oko.press/sasin-na- e, https://oko.press/ 40 In August 13 Stefan Batory Foundation manage these redundancies.manage This iswhysometrade unionsinthecivil to challenge service decided The waytheseprovisions are construedgivestheprimeministerenormous freedom tostructure and in thiscontext. of redundancies in the public administration by invoking social justice can beseen as utterly immoral of the law acts to further ‘public health’. sity are unconstitutional because they do not allow this remedy to be usedwhenapersonin breach existingthat provisionsrule fromlaw petition would criminal latter group the a MPs, PiS of neces- on a received Having Tribunal. Constitutional the using considering was it instead, impunity; legislating When this paper wasbeingcompleted,there was news that the ruling party was thinkingaboutnot impunity wasoriginallydrafted toremain effectiveeven afterthepandemicends. extends that 10d Article proposed the Similarly, months. subsequent for extended be still could and 44 43 ought to be establishedorsanctioned. sional group, especially in thepublicsector” explaining thatthechangeseekstoensure social justice whereby “no privileged statusofanyprofes- appointed civil servants). The rather bizarre argument in favour of the provision includes statements group where employees andcivil servants shouldbegivenahigherdegree ofprotection (especially istration particularly responsible for ensuringtheoperation of thegovernment, asomewhat elite It should be underlinedthat redundancies can affect the civil service, the part of the public admin- potentially high. charge ofgovernment administration or aregional governor. Thescale of possibleredundancies is in a minister minister, prime the by overseen units and regions, the in offices administration ment govern- Ministers, of Council the of members serve that departments Minister, Prime the of Office the include They provisions. the in defined further as units, administration public in reduction ment that mandate the prime minister to issue a regulation with detailed terms and conditions of employ- legislation that creates corruption risks. Shield Three contains Article 15zzzzzo, 15zzzzzp and 15zzzzzq The provisions regarding redundancies in the public administration are another part of the anti-COVID The FurtherWeakening ofthePublicAdministration adoption of the provisions, clearly flouting social solidarity or justice during a crisis. the after months three politicians other and senators MPs, of salaries the increase to bill a forward 2008. It can therefore hardly beargued thatcivil servants are privileged.Besides,therulingpartyput erally fall shortofbeingexcessive andhavebeen frozen fornearlyadecadefollowing therecession in could beconsidered reasonable ifitwere notforthefactthatsalariesinpublicsectoratlarge gen- spectacularly unconstitutionalanddefyruleoflawstandards. cians inpower usetheirleverage over theTribunal togainadditional legitimacy for measures thatare system of exercising power andanotherillustration ofhow thiskindofgapclosingworks.Thepoliti was no unity on the matter. This is yet another manifestation of PiS’s attempts to ‘close the gaps’ in the law and regulations, and helpit pour oil on troubled waters within the ruling coalition, where there press/nagly-atak-wyborcow-doprowadzi-do-zmian-na-opozycji/ [accessed:22October2020]. 46 gov.pl/Druki9ka.nsf/Projekty/9-020-141-2020/$file/9-020-141-2020.pdf [accessed:22October2020]. 45 artykuly/1493820,bezkarnosc-urzednicza-ustawa-trybunal-konstytucyjny.html [accessed:22October 2020]. M. Kryszkiewicz, G.Osiecki, Ref. K23/20. Nagły atak wyborców doprowadzi dozmianna opozycji?Politycznaanatomiakonfliktu opodwyżki,https://oko. doprowadzi A. Szcześniak,Nagłyatakwyborców sięwirusaSARS-CoV-2 wzwiązkuzrozprzestrzenianiem ustawyoszczególnych instrumentachwsparcia Projekt Bezkarność urzędnicza w rękach Trybunału Konstytucyjnego,https://prawo.gazetaprawna.pl/Bezkarność urzędniczawrękach 43 Thistrick would givePiS an additionalpretext to change the 44 46 45 The justification , http://orka.sejm. Thisargument - 14 Stefan Batory Foundation redundanciesthat government intensely inSeptember2020 startedannouncing In terms of corruption risk, the change has at least two main dimensions. The first is that the planned impact onspecificpersonalsituations. the ruling party. Again, this demonstrates that ‘closing the gaps’ in the PiS government system has an the In end, the Tribunal could rule against current jurisprudence anyway, just to comply with orders frompredicament. claimants’ the improve not might and years take could which ruling, Tribunal the for waiting are they that arguing cases, these suspend could courts labour the However, courts. labour in action legal take can servants civil Dismissed redundancies. the stop will nothing Tribunal, the at freezer’ the ‘in remains case the While time. long relatively a be to could it that suggests 2020 this kind ofrulingconvenient for thegovernment. Thecaseoftherulingonabortion22 October be atrap. IftheTribunal acceptsthecase,it could stall until there are new developments thatmake reasonable inprinciple.Yet inpractice, acomplainttotheTribunal controlled by therulingpartycould Furthermore, the arguments usedby the civil service trade unions in their petition to the Tribunal are and supportemployees inthegovernment administration; forinstance,by filinghis own complaint. mind his change suddenly to unlikely is he and adoption its after immediately law the signed Duda Andrzej President complaint. unions’ trade the reject will party, ruling the by influenced strongly nal, the shield before the Constitutional Tribunal. 50 49 48 item/2669-skladamy-wniosek-do-trybunalu-konstytucyjnego [accessed: 22October2020]. 47 government and in the broader context, have been describedin detail in analytical papers, and soon.Thetroubles ofthepublicadministration, mainly of thecivil service, during theright-wing abysmalGovernancebeen – year. has last moment brief increaseda be for to only recession2008, in average ageofcivil servants hasincreased. Wages havebeenlow, frozen fornearlyadecadeafterthe service has beendwindlingforyears,long-servingappointedcivil servants havebeenleavingandthe civil the in work to want who people of number The already. weak quite is that administration an en will therefore not provide detailed coverage here. Suffice it to say that a redundancy programme aredundancy that say to it Suffice here. coverage detailed provide not therefore will il service trade unionsnow. majority at thetime.TheTribunal deemedit unconstitutional, forthesamereasons invoked by theciv- Constitutional Tribunal by then-President Bronisław Komorowski, who was close to the parliamentary law thatprovided forthedownsizing ofgovernment institutions. Donald Tusk tried ‘rationalising employment in public administration’ with the help a special-purpose Minister Prime former when 2011, in that to similar is situation current the because sense make to visions of the Constitution safeguard the political neutrality of the civil service. The complaint seems arguedthat theconstitutional principleoflegal certainty, therespect forvestedrightsandthepro- appointed civil among servants, whichisthemainreason behindthecomplainttoTribunal. Itis redundancies out rule not do shields the Meanwhile, neutrality. political into translating autonomy, pointment inthispartofthepublicadministration, whichgivesthemorestability permanence, and complaint alsopointsoutthatitisnotwithoutreason thatemployees (civil servants) are hired by ap- and ‘aimpact’ state of emergency for which the supposedly budget’, triggered the redundancies. The economic ‘detrimental as such law, the in terms unclear and vague of number a used legislators the 51 sprawie-zwolnien-w-administracji-w-ciagu-2-3-tygodni-1001069 [accessed:22October2020]. Foundation, Warsaw 2020. rozwiązań andpropozycje Warsaw Kluczoweproblemy 2019;J.Kozłowski, R.Sobiech,Służbacywilnadziśandjutro. Dworczyk: koniec analizwsprawiezwolnieńadministracji wciągu2-3tygodni Dworczyk: Ref. Kp1/11. Law onRationalisingEmploymentinState-fundedUnitsandCertainOtherP Stop zwolnieniomwsektorzepublicznym.OZZInicjatywaPracownicza, https://www.ozzip.pl/informacje/ogolnopolskie/ Dla państwa and obywateli. Diagnoza and propozycje reformy służbycywilnej reformy See: G.Makowski, Dlapaństwaandobywateli.Diagnoza andpropozycje 49 Today, it can beassumedwithahighdegree ofprobability that theTribu- 47 In the expected complaint, civil servants underline that ublic Unitsin2011–2013 , https://www.pb.pl/dworczyk-koniec-analiz-w- 48 Thelaw was challengedbefore the , StefanBatoryFoundation, . 50 will further weak- , StefanBatory 51 so we 15 Stefan Batory Foundation and academics. knownhas been toexistbydescribed has beenempiricallystudiedand foragesand manyanalysts administration employeesin corruptbehavioursover maybecompelledtoengage time.Thepattern Over- stability). whelmed by a sense of deprivation caused by low income and mountingpolitical (job pressure, public incentives financial positive of lack the for compensated partially least at that Meanwhile, it will increase the risk of corruption among civil servants. Civil servants have lost benefits lenges. chal- current the to respond to potential government’s the reduce will crisis a during implemented 52 media. the in party ruling the of representatives by informally made claim a go, to first the in public administration. This theory is plausible enough, as people in senior civil servant posts will be purges of wave second a to lead could known) yet not were plans specific government’s the drafted, redundanciesThe pandemicandthe announced in the public administration (when this paper was the civil service or changedpost – around athousandpeoplein total. left servants civil three in one nearly adopted, was amendment the after months six first the During ing massredundancies andjobtransfers within the civil service, which violated the Constitution. allowLaw - Service Civil the of amendment an adopted team right-wing the 2015, powerin to coming after Right 2015–2016. of purges the survived who ones appointed especially servants, civil venient The seconddimension is that the ruling party has set up aneasy system allowing it to get rid of incon- privilegedstatus,becomeunbearable.do nothavethemilitary’s scenarios inwhichthelevels of deprivationinthecivil service and otherpartsofadministration, which tion, which is generally quite privileged. With all this in mind, it is somewhat disconcerting to examine salary is relatively high, forthe public sector. In addition, the case concerns the military administra- the headofagovernment institution,rather thanamid-orlow-level civil servant, isthesuspect.The a fectant and other resources used for the response to the pandemic. This was a classic case of fraud, disin- tests, COVID-19 stolen had who Warsaw in Epidemiology and Hygiene of Institute Military the In mid-October2020, the Centralthe pandemic. Anti-corruptionBureau apprehendedthe director of impossible). way. Thegovernment hadtotread verycautiously to avoidlegalactionincourt(which,fact,proved some in useful proven had or servants civil appointed were they because degraded fully or ‘ousted’ rekonstrukcja-rzadu.html [accessed:22October2020]. https://serwisy.gazetaprawna.pl/praca-and-kariera/artykuly/1493288,urzednicy-zwolnienia-koronakryzys-ministerstwa- 57 prawo-wrocic-na-swoje-stanowisko.html [accessed:22October2020]. https://www.rp.pl/Urzednicy/309309969-SN-zredukowany-z-administration-skarbowej-urzednik-podczas-reformy-w-2017-r-ma- 56 Odpowiedzialne%20Panstwo/Stanowiska_publiczne_as a_lup_polityczny.pdf [accessed:22October2020]. , StefanBatoryFoundation,Warsaw 2018,http://www.batory.org.pl/upload/files/Programy%20operacyjne/2017 roku 55 Programy%20operacyjne/Odpowiedzialne%20Panstwo/Opinia_Sluzba_cywilna_HIzdebski.pdf [accessed:22October2020]. innych ustaw(JournalofLaws2016Section34) 54 53 sluzbie-cywilnej-analiza-prof-j-itrich-drabarek-9-04-2020/ [accessed:22October2020]. Politological StudyCentre, http://oapuw.pl/rola-administration-publicznej-w-czasie-epidemii-czy-konieczne-sa-ciecia-kadrowe-w- common case of criminal corruption. What is perhaps more intriguing in this specific case is that it that is case specific this in intriguing more perhaps is What corruption. criminal of case common J. Itrich-Drabarek, wsłużbiecywilnej? Rolaadministracjipublicznejwczasieepidemii.Czykonieczne sącięciakadrowe M. Miłosz,G.Osiecki,T. Żółciak, naswojestanowisko , w2017r.maprawowrócić zadministracjiskarbowejurzędnikpodczas reformy M. Rzemek,SN:zredukowany od16listopada2015do31października G. Kopińska,Stanowiskapublicznejako ałuppolityczny.Politykapersonalnawokresie See: H.Izdebski,OpiniawprzedmiocieUstawyzdnia30grudnia2015r.ozmianie służbiecywilnejandniektórych See: InternationalHandbookontheEconomicsofCorruption 52

56 53 There are current examples ofthiskindbehaviour,now additionally linked to Urzędnik będziezachwilęszukałpracy. Zwolnienia wministerstwachjeszczetymtygodniu , StefanBatoryFoundation,Warsaw 2016,http://www.batory.org.pl/upload/files/ , editedby SusanRose-Ackerman, Northampton2012. 55 Some of themcouldnotbe , 2020, 57 Judging , 54

16 Stefan Batory Foundation care administration, hospitalsandparamedic services. ment measure to support the most overburdened healthcare institutions, which include the health- manage - a than intimidation in exercise an like more seems policy HR government’s The today. face example, the State Sanitary Inspectorate’s human resources are far from optimal, given the task they For pandemic. the fighting for responsible institutions at working people especially employees, tor sec- public other for signal good areMoreover,a service not civil redundancies the announced in the term inoffice. first its during efforts successful initial party’s ruling the evensurpassing morebecomes established, in the PiS government system may be approaching as the spoils system in the public administration gaps’ the ‘closing in exercise Another credentials. these without servants civil be to likely more are competence criteria were lowered, with no opencontests, based onparty recommendation. They by the experience so far, kandydaci-na-dyrektor%C3%B3w-spe%C5%82niaj%C4%85-ustawowe-wymagania.pdf [accessed:22October 2020]. Public Administration Fellows Society, Warsaw 2020,http://www.saksap.pl/wp-content/uploads/2020/10/Jak-przebiega-ocena-czy- 58 in be actually may majority ruling the COVID-19, to relating measures to regard with impunity with in theregular way, rather thanby the rulingparty. Withnopublic scrutiny of government actions and be able to promote partisanship and a spoils system by ‘culling’ the remaining civil servants appointed likely to strengthen the PiS system of government. It is in the civil service that the ruling majority will also are administration public the in Redundancies network. 5G the build to frequencies manage to power unlimited the political): also but financial, only (not resource another over control undivided ting offtheoppositionfrom theappointment ofitschiefexecutive. The government teamhasgained This observation can be supported by the capture of the Office of Electronic Communications and cut- tions of‘gap closing’initsanti-COVID policy. manifesta- distinctive less or more find will one paper, this to introduction the in presented system government PiS the of description the with agrees one if hand, one the On question. this to answer clear-cut no is There created? has it system the in gaps the close and right-wing power its consolidate ruling coalition the helped them, with associated those or shields, the in amendments the Have the suggest overall costandvolumeofmisconduct. may tests COVID-19 and ventilators virtual masks, face useless buying on companies state-controlled and Health of Ministry the by spent złoty of millions of hundreds the Nonetheless, unknown. is changes the from resulting abuse of extent The necessity’. ‘outof acting individuals and the rulingpartyasit continues toexpand theimpunityzoneunderguiseofpandemicresponses in vital areasand publicprocurement. suchaspublicspending We havenotheard thelast of it from suspended fully been have accountability officials’ public and fraud or errors for liability and down, public institutions pended, have becomeless transparent,mechanisms havebeenshut watchdogging ber ofsafeguards againstdiscretionary government decisionshavebeenrelaxed ortemporarily sus- brought about by the ‘anti-corruption shields’ increased the risk of corruption? Undoubtedly – a This paper can only provide a partial response to these two fundamental questions. Have the changes Justice ‘close thegaps’initssystemofpower? the riskofcorruptionandisithelpingLaw Conclusions. Hasanti-COVID legislationincreased Raport SAKSAP – cz. 2. Jak przebiega ocena czy kandydaci na dyrektorów spełniająustawowewymagania? Raport SAKSAP–cz.2.Jakprzebiegaocena czykandydacinadyrektorów 58 it is unlikely that they will be peoplewhowere hired orpromoted after the , NationalSchoolof num- 17 Stefan Batory Foundation and government asawhole. institutions in confidence lower with coupled be will damage Material time. of amount limited a for public safety, andsoon.Thedamagewill be lasting,even if theunderlyingprovisions were inforce goods andservices without control will mean anirreversible waste oftaxpayermoney, compromised provisional a measure likely to bephasedoutasthepandemicendswill leave apermanentmark.Anypurchase even of However, information. public to access from exclusion the as such provisional, service or someoftheprovisions indemnifyingpublicdecision-makers. Somemaybemore or less civil the of patronage political OEC, the of control instance, for permanent; not if lasting, quite be to How sustainableisthischangeandwhatare thelong-termimplications?Someofthemmayturnout demic. Apparently, thesemeasure havehadoppositeeffects. more policies designed to consolidate its grip on power on the back of legislation relating to the pan- and more spawned has It odds. the against system its in gaps’ the ‘close to continues PiS However, professionalism. servants’ civil by guided proceduresand with operating institutions real than rather networks, crony and partisan of out exclusively almost woven procedure’, ‘without state a ernment, SAO very strong immunity. the of head the gives constitution the as office, from removehim to late too was activity.However,it criminal in involved been have may he that out turned it appointed, was he after party: ruling the for failure costly a be to out turned Banaś enough. not was networking social and initiatives informal by tion to further narrow the accountability margin. Yet apparently, a party recommendation reinforced institu- keystate another yet of controltake to candidate ideal an was brother late his and Kaczyński Jarosław of friend longstanding tested a that thought have might One Constitution. the provisionsin (SAO) in2019. The PolishSAO isoneofthemostimportantstateinstitutions regulated directly by Office Audit Supreme of head as Banaś Marian of appointment the is others, many among example, ological loyalty, it has mastermindeda system that is hardly controllable and predictable. The prime the checksandbalancesthatprotect the state against abuseandrelying solely on partisanandide- graduallycontrol’.removingBy of ‘illusion the all as described be could what to victim falling seen be ‘controlled’ corruption at time, then it has not been very effective. Even before the pandemic, PiS could If that was meantto be achieved by the formal andinformalconcentration of power, decisionism and first term in office and during preparations for the second one, PiS promised an efficient government. its During expected. government PiS the as effective as really are government of system PiS’s of tion consolida- the or system the in gaps the closing whether of question the is there hand, other the On keep itspeopleinseniorpostsandavoidliability. that foster corruption to further its party-political agenda in order to strengthen its hold on power, shed and power to accountability. In addition, this demonstrates that the government is consciously creating measuresstick to is game the of name the result, a As Sasin. Minister Prime Deputy and ised election in May – and, later, in late June and early July – with impunity: Prime Minister Morawiecki this maybedesignedtoprovide themembersofrulingpartyresponsible forthepoorly-organ - foremost, and First pandemic. the fighting of policy the with associated somewhat only efforts are indications suggesting that securing impunity for abuseof power, misconduct and economic crimes likes external institutional or civil society scrutiny, liability and accountability. Furthermore, there are of allinstrumentspower andresources inonehandandonpolitical particularism. Thesystem dis- the process of ‘closing the gaps’ in the power system. After all, the system relies on the concentration 59 See: G.Makowski, Layingthegroundwork for“grand corruption”… 59 The pandemic fully unveiled the inefficiency of the PiS system of gov- of system PiS the of inefficiency the unveiled fully pandemic The 18 Stefan Batory Foundation In the end, the benefits for the ruling coalition of ‘closing the gaps’ in the system may not make up for the cost. PiS might consolidate its power during the pandemic, but for how long? The state it will cap- ture will be a state in disarray with no efficient administration and other institutions responsible for providing citizens with public services, non-transparent, vulnerable to all forms of corruption, stripped of confidence and one that does not guarantee respect for human and civil rights.

Grzegorz Makowski: Ph.D. in Social Sciences, expert at the Batory Foundation IdeaForum think tank, assistant professor at the Socio-Economic College, Warsaw School of Economics. His focus is corrup- tion and anti-corruption policy, the development of civil society and the status of non-governmen- tal organisations. Grzegorz formerly taught at the Institute of Applied Social Sciences, University of Warsaw, Collegium Civitas. He is a former civil society programme manager at the Institute of Public Affairs Foundation and the author of books, research papers and opinion pieces.

Marcin Waszak: political scientist, sociologist, expert at the Batory Foundation IdeaForum think tank, where he is in charge of whistle-blower protection activities, including drafting a civil society bill and ensuring compliance with the EU Directive. He writes for sygnalista.pl. In the non-governmental sec- tor, Marcin has focused on corruption, policy financing and the evaluation of government anti-corrup- tion policies for more than a decade. He has written a number of analytical reports and press articles.

Stefan Batory Foundation Publication is licensed under Sapieżyńska 10a the Creative Commons 00-215 Warsaw Attribution-ShareAlike 3.0 tel. (48-22) 536 02 00 Poland Unported Licence (cc BY-SA 3.0) fax (48-22) 536 02 20 [email protected] www.batory.org.pl Polish version copyediting by Joanna Liczner Translated from Polish by Tomasz Zając English version proofreading by Annabelle Chapman ISBN 978-83-66543-50-8 Warsaw 2021