PiS’s new bill. Protection of the people or protection of the authorities?
The Act on the Protection of the Population, the draft of which ‘Gazeta Wyborcza’ obtained, gives the authorities the ability to restrict constitutional freedoms without the Sejm’s control and to remove uncomfortable mayors.
Hardly anyone noticed that, by adopting the Act ‘on the defence of the Homeland’ and repealing the previous Act on the general defence obligation in an atmosphere of elation and moral blackmail, the Polish parliament abolished the legal basis for the functioning of civil defence, namely the protection of the population in Poland. Clearly, this was not a mistaken omission on the part of PiS, but a preliminary step towards adopting another regulation, which is almost certainly to be enacted in the procedure of patriotic intensification in the face of war.
The bill on the protection of the population and the state of natural disasters which is being proposed by the Ministry of Internal Affairs and Administration not only liquidates or demolishes the crisis management and critical infrastructure protection system in Poland, which is based on local authorities, and eliminates the Government Security Centre, but, worse still, it also poses a serious threat to democracy and self-governance.
The objective of the proposed Act is to permanently introduce extraordinary powers of the government over local authorities, businesses and citizens into Polish law, together with the possibility of the uniformed services applying discretionary repression introduced by the so-called ‘Special Covid Act’ and the state of emergency in the border zone. The new bill goes even further, because it creates a ‘fast track’ for removing inconvenient heads of counties and mayors.
New states of emergency without the Sejm’s control
The bill being prepared by the Ministry of Internal Affairs and Administration, which ‘Wyborcza’ obtained, introduces two new quasi states of emergency – alert and threat – referred to as ‘states of increased readiness’. They are to give the government certain powers arising from the classic states of emergency, but, unlike them, they do not require the consent of the president or parliament.
It will be possible to introduce a state of alert by a regulation of the minister of internal affairs or even a voivod for a period of up to 30 days in a situation where ‘because of adverse circumstances caused by the forces of nature or human activity, a need arises to increase the readiness of the public authorities. The state of alert may be extended after obtaining the consent of either the minister or the prime minister.’ The state of alert will apply to all bodies of central and local government administration operating within the voivodship, as well as all businesses.
The second state of increased readiness, which has far more serious consequences for democracy and self-governance, is to be a state of threat, which ‘is introduced by a regulation of the Prime Minister in the event that the introduction of the state of alert is insufficient and additional measures need to be taken by the bodies of public administration and appropriate restrictions, prohibitions and orders need to be introduced which are binding on individuals and entities protecting the population’. It will be possible to introduce the state of threat, just like the state of alert, throughout Poland or in a part of the country for a period of no longer than 30 days.
Method of taking control of opposition cities
The serious threats to democracy and self-governance are hidden precisely in this enigmatic phrase: ‘relevant restrictions, prohibitions and orders that are applicable to individuals and entities protecting the population’. According to Article 30, during a state of threat, ‘the Prime Minister is able to issue orders that are binding on bodies of government administration, state-owned legal persons, bodies of local government, local government legal persons and local government organisational units without legal personality, as well as businesses’. Under the same article, ‘in the event of the refusal of bodies of local government to fulfil an order (…), the inappropriate fulfilment of such an order or the failure to demonstrate sufficient effectiveness in performing coordination activities (…), the Prime Minister may suspend such bodies at the request of the voivod responsible for the territory and appoint a government commissioner by way of an administrative decision’.
This gives the government the right to introduce forced management in municipalities, counties and cities, the performance of which is assessed as ‘not sufficiently effective’.
What practical threats arise from this? For example, it is possible to imagine that, in the case of another failure of the Czajka collector, the voivod will first introduce a state of threat in the capital, and then the prime minister will immediately suspend the capital’s opposition mayor at the voivod’s request as not having demonstrated ‘sufficient effectiveness’ and appoints a government commissioner… A pretext will always be found in one city or county or another in which the authorities are not sufficiently obedient to the government. In this way, PiS can take control of selected cities or counties in Poland under the guise of protecting the population.
Anti-Covid lawlessness to be enshrined in Polish law
Furthermore, according to Article 31, during a state of threat or a state of natural disaster, a Police, Border Guard or State Fire Service officer or a soldier of the Polish Armed Forces would have the right to ‘give orders to people to behave in a specific way within the limits required to perform activities related to the response to the threat or natural disaster and in order to perform statutory tasks of each of these formations, respectively’.
And again, the practice of abusing the anti-Covid laws to fight down and repress the opposition (fines, boards, sanitary and epidemiological services) leaves no illusions as to the fact that the PiS authorities are prepared to abuse such statutory powers to, for example, prevent demonstrations and public protests.
The objective of the bill is to ‘ensure the safety of the population, as well as property and infrastructure in a situation of a natural threat or a threat caused by people, by providing measures to protect human life and health, property, infrastructure, cultural heritage and the environment’. This, in turn, constitutes an open door for applying these regulations and restrictions and the powers of the police services not only in the case of natural threats, such as floods, but also, for example, in the case of public protests, which would be considered by the government as a threat ‘caused by human activity’, for instance, to cultural heritage (e.g. churches or Plac Piłsudski) or government or state infrastructure (e.g. the Constitutional Tribunal or the Sejm buildings).
After all, the intentions of the authors of the bill are quite clearly contained in the justification, which is worth quoting: ‘The mechanism proposed by this bill for issuing and fulfilling orders, including the resulting tasks, is modelled on the solutions adopted in the Act on specific solutions related to preventing, counteracting and combating Covid-19, other contagious diseases and crisis situations caused by them of 2 March 2020, which proved effective in the crisis situation caused by the Covid-19 virus epidemic’.
Meanwhile, it was during the battle against the pandemic that the government’s practice produced a parallel alternative crisis management system undermining the current legal and factual state of protection of the population and crisis management based on local authorities.
Now that the Covid justification is disappearing, PiS will be citing the threat of the armed conflict on our borders with the intention of introducing these quasi-authoritarian solutions permanently into the Polish legal order in order to be able to consolidate or defend its authority.
I am deliberately avoiding any further comments on the proposed regulations; everyone should draw their own conclusions on the consequences of giving the voivods, the Minister of Internal Affairs and the Prime Minister of the PiS government such tools of power that are outside the control of the Sejm and the Senate.
Translated by Roman Wojtasz
The article was published on Gazeta Wyborcza website on 28 March 2022.