Analysis: pandemic immunity for public officials raises questions

By Chris Mularczyk

The Lower House of the Polish Parliament will on Wednesday debate a controversial legislative measure that could exempt officials from sanctions for breaking the law if they acted to combat the COVID-19 pandemic. Its constitutionality is being questioned as it involves retroactive measures, ie. it relates to acts which have already been taken. It is also being criticized for facilitating future corruption and giving public authorities more discretionary powers.

The proposed legislation would amend existing legislation on coping with the Coronavirus pandemic and future crisis. It is Article 1 of the draft which has proved most controversial. It states that “anyone who infringes on their official duties or the 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 on these duties or laws.” This provides for blanket exemption of public officials for any crimes committed by them during the pandemic.

The case for the measure

The proponents of the legislation from the ruling Law and Justice (PiS) argue that the law places the protection of life as the highest value in law and that this is in line with the constitution. They also argue that the long-established legal tradition of allowing for justification of technically illegal acts when those acts are in defence of the public interest or human life.

The reason for the measure is clear. During the dramatic early days of the pandemic ministers and other officials cut corners in an attempt to hurriedly purchase medical equipment such as ventilators and protective clothing such as face masks. These were often purchased without tenders for which there was no time. In a couple of embarrassing situations for the government, and costly to the taxpayer, the protective clothing did not meet standard requirements and in another the ventilators ordered never arrived.

It now seems churlish to punish officials for the fact that they were desperately trying to provide medical supplies and equipment that could have saved lives had the pandemic spread as fast as in other parts of Europe. With the benefit of hindsight we now know that this did not happen, but that is the benefit of hindsight.

Criticisms of the draft

The legislation stipulates that it only applies to combating COVID-19 rather than “effects of the pandemic” as that would have made it even more all-embracing. But doubts remain about the way the bill is drafted by giving potentially blanket immunity remains. As does the suspicion that another value is being totally disregarded, that of protecting the public interest against corruption and waste of public money.

The problem with the broad justification on the grounds of actions being in the public interest is that it is so all-embracing and could make state prosecutors unwilling to challenge any behaviour of officials that was linked with combating the pandemic. The fact that the legislation allows for immunity from prosecution if the public official felt that the legislation they flouted merely impeded rather than made impossible combating the pandemic may also open the gates to questionable practices and behaviour.

The legal problem with the proposed legislation is that it is in danger of violating the constitutional principle of specificity of legislation. The draft fails to specify clearly what types of acts would be excluded from liability and in what circumstance.

The immunity would apply to actions that have already taken place before the law was in place. In a way of course that is the very purpose of this legislation but in this way another constitutional principle of avoiding the retroactivity of law could be violated.

Critics also point to the fact that not all professions are getting such favourable treatment with regard to handling of the pandemic. Doctors and medical staff who have been on the coal face of the battle against the pandemic for many months have had penalties for medical errors increased in the Anti-crisis shield 4.0 legislation. Business owners and their organizations are also concerned that the legislation, if passed, would empower the state to seize assets of companies.

The emergency COVID-19 legislation introduced this year by the government has already caused problems in some sectors. For instance developers have taken advantage of COVID-19 exemptions and have started to override construction restrictions on the basis of building housing units for those potential in quarantine. A clear abuse of existing legislation made possible by loopholes. The concern is that the new blanket immunity being proposed for officials will encourage those in public office in future to cut corners in pursuit of their policy objectives.

Alternative course possible

Other courses of action could have been considered. One route would have been for the President to have pardoned any officials accused of technical violations of the law when they had been acting in good faith to stop the spread of the pandemic.

Alternatively the provisions on transparency of actions could be strengthened in Polish executive practice and legislation. First of all by obliging institutions to digitally publish information on actions taken. Secondly, by implementing the provisions of the EU directive on the protection of whistleblowers to protect those reporting corruption and fraud in their places of work. Such provisions would counterbalance any impunity with accountability. Otherwise the government will be open to charges that it is attempting to cover up irregularities and corruption.