“I’m against raging transparency. Ivan Krastev, an eminent political scientist, has demonstrated that transparency can kill democracy” – claimed Andrzej Zybertowicz, advisor to President Andrzej Duda, on RMF FM radio station in January 2019. Even though Andrzej Zybertowicz explained that it was his personal opinion, there is no denying that in 2019, for the first time, the politicians holding power in Poland became aware of the threats to them resulting from transparency. Disclosure of the information that the Prime Minister Morawiecki obtained financial benefits by purchasing a plot of land from the Church for a preferential price and a few years later he partially divided his property between himself and his wife so that he would not have to include this plot of land in his assets declaration; news about enormous salaries of the employees of the National Bank of Poland; reaction of the public to private flights of the Sejm Speaker Kuchciński by a state plane, or launching the whole apparatus of the state to conceal letters of support for candidates for members of the National Council of the Judiciary, made the government acutely aware that transparency does count. Why has it been more painful now than before? In 2019 the general public became interested in such issues and the transparency level. Thus, the only thing that could be done was to “create the law.” The people demand transparency? The government understands and acts. However, for fear that too much information shall kill democracy, something must be devised. This is how it went.
January – February 2019
At the end of 2018 “Gazeta Wyborcza” newspaper wrote about potentially enormous salaries of two executives in the National Bank of Poland (NBP). Since the President of the NBP refused to disclose source data about earnings in his institution and the matter captured attention of the media, already in January 2019 a group of the Law and Justice MPs proposed draft amendments to the Act on the NBP.
On 22 February 2019 the Sejm (the lower house of the Polish Parliament) amended the Act on the NBP. The amendments introduced, among other things, the transparency of earnings of people holding public functions: the President, Vice-Presidents and Members of the Board of the NBP and people holding the positions of: regional branch head, department head (or head of an equivalent unit) and their deputies, as well as people holding the functions equivalent to the department head in terms of earnings.
As a result of the amendments, information was actually published in the Public Information Bulletin of the National Bank of Poland. However, disclosure of these earnings was possible even prior to the amendments to the Act on the NBP. Such a law has been in force in Poland since 1997 – Article 61 of the Constitution of the Republic of Poland provides that:
A citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such a right shall also include receipt of information on the activities of self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury.
The government’s problem consisted in the fact that if the case of the NBP President, who stubbornly refused to disclose information, had landed in court, it would have provided fuel for the media for at least half a year, and the NBP President was a member of the ruling camp. With the enactment of the new regulations, the earnings of people holding public functions in the NBP were disclosed already in February 2019. Thus, a redundant legal act was introduced just for the purpose of image-building for the ruling party. This act spoils the law. Shall each disclosure of information need a special legal act from 2019 on?
July – December 2019
In March 2018 the Sejm chose the members of the new National Council of the Judiciary (KRS). Due to the fact that the operating Council’s term of office was cut short and the politicians’ influence on the Council was increased, which aroused controversy, the matter captured attention of the general public. The focus was on the question who supported the candidates and especially which judges were involved in this process. Did the names on the support lists keep recurring? Did the candidates support themselves? Was the whole process completed lawfully?
None of these questions has been answered yet, even though the new National Council of the Judiciary had been appointed almost two years before this text was written. The Head of the Chancellery of the Sejm, who was able to provide information at that time, cited Article 11c of the Act on the KRS (the Act on the National Council of the Judiciary) amended in 2017:
Applications of candidates, lodged pursuant to Article 11a and Article 11b, are submitted to the MPs and disclosed to the general public by the Sejm Speaker without delay – excluding attachments.
However, attachments contained information about support. The case was brought to court. At the end of June 2019 the Supreme Administrative Court issued a verdict on one of such cases (file reference no. I OSK 4282/18). The court ruled that the Act on the KRS regulated only the activities of the Sejm Speaker and did not refer to the obligations connected with transparency of the whole process, based on the Constitution and the Act on Access to Public Information.
Did the verdict reveal to the general public the names of judges supporting candidates for the KRS? No. A member of the Council turned to the President of the Personal Data Protection Office emphasizing that publication of the lists would entail disclosure of personal data. Thus, the President of the Office blocked execution of the verdict and issued two decisions about commencement of the proceedings. Until they are completed, the Head of the Chancellery of the Sejm cannot execute the verdict, at least this is what all people connected with the government claim unanimously. However, it is difficult to agree that officials are authorized to block judicial decisions.
Probably due to these doubts, the ruling majority took one more action. At the motion of “a group of MPs” (names were not made public), Poland may be facing limitation of transparency in general. In December 2019 they filed an application with the Constitutional Court to examine whether Article 11c of the Act on the KRS and Article 5 section 2 of the Act on Access to Public Information comply with the Constitution. They suggest that a judge who signs a support list for another judge who is a candidate for a public office does not have to do this officially (case no. K21/19).
What shall be the result of the proceedings in the Constitutional Court? Shall the State cease to function officially? Shall it become private? Do court judgements no longer matter?
August 2019
In August the ruling majority showed how to increase transparency in words and decrease in actions.
On 30 August 2019 the Sejm passed the Act on Flights of the Chief People in the State. This is an outcome of the scandal connected with the flights of the Sejm Speaker Marek Kuchciński. He used government planes as a means of public transport and an element of property which he administered as his own. It turned out that politicians needed a legal act which would prevent them from such management of public property.
Therefore, regulations concerning “official missions” were enacted. According to these regulations, the President always travels with an official mission, whereas not every flight of the Sejm and Senate Speakers or of the Prime Minister is such a mission. It will turn out in the future how this is going to work in practice. An important element of the system will be the central register of flights with an official mission, kept by the Head of the Chancellery of the Prime Minister.
Unfortunately, the register has serious drawbacks. It will not be published online: instead, it will be accessible only upon request. The key information is missing: the purpose of a flight. The register is supposed to contain: date of a flight, places of take-off, touch down and refuelling stops, as well as first names and surnames of passengers. Worse still, information entered in the register can be excluded from public access owing to an important interest of the state, or security of the President, the Prime Minister, the Sejm Speaker or the Senate Speaker.
September – October 2019
Just before the elections of October 13th, there emerged the government’s draft act on amendments to the Act on Implementing the Mandates of an MP and a Senator and to some other acts. Nothing is known about the progress of works in the government, but the draft act landed in the Sejm immediately. It was enacted quickly – on September 27th the act was submitted to the President, so it was possible to announce good news to the people just before the elections: there will be more transparency.
However, after the elections – in a letter dated at October 18th (the elections were held on October 13th) – the President referred the Act to the Constitutional Court (case no. Kp 2/19):
Due to doubts concerning the compliance with the Constitution of the regulations in the Act of 11 September 2019 relating to the requirement that an assets declaration should include personal property and joint marital property of own children, the spouse’s children and adopted children of a person obliged to file an assets declaration, these regulations should be evaluated by the Constitutional Court in the preventive control mode.
Now the Act will wait for a couple of years and during this time the issues contained therein can be left unregulated.
The largest stir in the public debate was caused by the regulations which responded to the image crisis of the Prime Minister Mateusz Morawiecki, connected with disclosure by the media of the fact that he and his wife purchased a plot of land from the Church for a preferential price, but this information was not included in the Prime Minister’s assets declaration, because he had partially divided the marital property between himself and his wife. The new regulations introduced Part B or Annex to the assets declaration, which contained declaration of the person submitting the document about property of the spouse, of own children and the spouse’s children, and the people living together. During the rapid enactment process a question emerged about the feasibility of such regulations. For example, to which extent parents of grown-up children should know their property, if they are supposed to enumerate it in detail (including joint marital property). It is worth adding that regulatory impact assessment, which contains a very brief reference to the regulations functioning in other countries, there is no information where else it is possible to encounter similar regulations which interfere with privacy and defy common sense.
However, the Act contains also the regulations awaited for years, pertaining to transparency of assets declaration of the Prime Minister, ministers and vice-ministers. In Poland assets declaration of a district councillor is public by law, but a declaration of a vice-minister dealing e.g. with medication policy is public only when… he or she decides so. Although there is a practice that ministers’ declarations are published, this is not an obligation and it sometimes happens otherwise.
Nevertheless, since the whole act was referred to the Constitutional Court, these beneficial regulations have disappeared for an unspecified period of time.
Conclusions
Professor Zybertowicz does not have to fear: for the time being, there is no danger of excessive transparency in Poland. The events from 2019, described above, show how privatized the state has become. The public interest was not the reason for any of the legislative actions. Law concerning transparency was enacted only so that those in power could safeguard their interests.
What is more, a number of doubts arise. Will transparency always require a special legal act? Will the provisions regulating technicalities (disclosure of information by the Sejm Speaker in connection with the elections to the National Council of the Judiciary, the scope of data in the register of VIP flights) be used to conceal information? When will the general public learn about the property of the Prime Minister’s wife? When will publication of assets declarations by ministers become obligatory?
We ask these questions at the beginning of 2020 and intend to return to them in January 2021. We will be watching closely the course of events for the whole year.
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