The Law and Justice’s government maintains that it wishes to build a strong civil society. Contrary to these declarations, this is not reflected in the shape of the newest piece of legislation – an Act on the National Institute of Freedom. 

The Act on the National Institute of Freedom – Centre for the Development of Civil Society, contrary to its name, may constitute a threat to human rights and freedoms. First, it will prevent help from reaching many persons in dire situations such as women threatened by their husbands or abused children. Second, it opens the door to the legal circumvention of the rules regarding the granting of funding, which were worked out over the years in broad debate and dialogue between the civil society organizations and several governments. Third, many of those that have been observing the most recent changes in the law see the act as the next step in taking away freedom and increasing divisions, surveillance, and dependence. 

I have to admit that at first I did not see how significant these threats are, but the situation is continuing to develop, and there are more and more questions regarding the reasons for introducing certain solutions. Most importantly, I began to see the first social costs. Since for the last few years, we have been discussing the financing of the civil society organisations, I personally believed that we should nonetheless search for other sources of funding than assistance that is provided by the state. Such assistance, at the current stage of the development of our political culture, one way or another, always results in a loss of independence. However, I now see that this is easy to say when the problems of specific persons, those that are intimidated, frightened, and do not receive help from their surroundings, do not reach the organisation on a daily basis. Providing assistance to such persons is the obligation of the state, but they were deprived of it and there is currently no evidence that there are other effective means to take care of their problems. Although there are also some positive exceptions, e.g. the fantastic 1,000% increase of the 1% tax designation in 2017 for one of the organizations supporting women experiencing domestic violence – the Centre for Women’s Rights. [More on 1% designation mechanism is available in my text Good practices of reaching out to taxpayers in Poland]

At the same time, thanks to the act, the individual behaviours of specific ministries such as the termination of support for the mentioned Centre for Women’s Rights or the Empowering Children Foundation by the Ministry of Justice are provided an ideological justification. The act contains a preamble that was battled over while being drafted by parliament and which was unexpectedly added after the period of time in which citizens and organisations could submit their comments regarding the bill. It states that the “The Polish state supports the ideals of its citizens and local communities, which are inspired by their commitment to freedom  and Christianity and encompass the traditions of the Polish intelligentsia   and   also   of   the   independence,   national,   religious,   socialist   and   peasant movement  traditions”. There is controversy due to the manner in which the preamble was added and the fact that it was added to an act that is called a “technical” act (though not always, sometimes it is called a government system act), as well as its content. The government is defending the bill, underlining that all possible ideals were named, but since the constitution refers to the “Christian heritage of the Nation and universal human values”, the discussion was a long one. As independent senator, Marek Borowski, noticed, the ideals specified in the preamble to the Act on the National Institute of Freedom pertain to historical issues. They do not refer to many issues that are recognised today. The naming of specific traditions constitutes a guideline for the entire state apparatus: what should be supported, and what should not, as well as a precedent that allows for use in subsequent acts. In any case, the long discussion in the Senate left no doubts as to what it is all about. The Law and Justice senator,  Andrzej Bobko, was the most direct, stating that the government cannot use public funds to support “an organisation whose mission is to promote the flat Earth theory”. Therefore, it will also not support “an organisation that promotes harmful theories regarding sexuality”.  For Polish reader it is obvious that he referred to gender issues and the LGBT rights.

When it comes to fears regarding the procedures for the granting of funds, they arise out of the Act’s Article 30.1, which indicates that the “National Institute shall implement the programmes (…) independently or by way of an open call for proposals”. There was a debate as to why there should be two mechanisms and what the “independent” procedure means, especially as the next section indicates that the rules of the call will be prepared by the Director of the National Institute of Freedom. While it is true that they are subject to approval by the Board of the National Institute whose members include civil society organisations, they constitute a minority of the members and it is unknown what would happen if the council would refuse to approve something. In turn, the government maintains that it cannot be said that these independent activities will be completely discretionary and dependent on the director, as they must be government programmes, and government programmes are subject to social consultations in accordance with the Rules of the Council of Ministers. The thing is that in accordance with the act, what will receive funding in the given moment and how much funding will be provided will be determined by the director. The director in turn is only subject to the minister in charge of the Committee for Public Benefit Activities. Therefore, there is no doubt that the principal players will only be composed of two persons. In previous years, it was the call for proposal rules that were the subject of the greatest interest of civil society organisations, as that is where specific accessibility and availability criteria are provided. 

The main ideas that gave rise to certain hopes among social activists turned out to have been very poorly prepared. And so, civil society organisations found out that “institutional development” will be supported, but since the act does not indicate what it is, at the end of the legislative process, the senators began to ask about this during committee meetings and plenary sessions of the Senate. It turned out that it pertains to providing support to civil society organisations when they have no projects, which means supporting their “survival” rather than their “development”. Of course the government maintains that it wants to build a strong civil society. But in that case, support should be provided to ensure independence, strength, and autonomy. Moreover, for this to be possible on an appropriate scale, in addition to providing direct support to organisations, favourable conditions for their operation, such as tax incentives for donors, would also need to be built. In the government’s proposals, contrary to its declarations as to the importance of a civil society, this manner of thinking is absent.

The second thing, perhaps more dangerous, is the government’s idea of supporting watchdogs and independent media. I am afraid of the instrumentalisation of the civil oversight. Deputy Prime Minister Gliński, when asked during the National Forum of Non-Government Initiatives of his idea for providing support for such activities, said that special funds will be designated for such activities. The previous government also had this idea and unfortunately it turned out that it is hard to ensure the independence, and good recognition of such activities, as well as care for procedures. This government has no doubts that this will be possible. But since it plans to support such activities at a local level and proceeded with this act one year before local government elections, I unfortunately fear the worst. We already know from the past what are the repercussions of an instrumental approach to such subjects. For example, the politicisation of the subject of corruption in 2005-2007 caused the lack of any reliable debates on this subject in the years that followed. [more on that in my text Polish Experience in Fighting Corruption, p. 6]

All of these predictions could be considered fairy tales if we were sure of the government’s goodwill. Unfortunately, past experiences with the Constitutional Tribunal, public media, assemblies, courts, and the continuous blackmailing of the Commissioner for Human Rights by surrounding him with an atmosphere that suggests that he can be removed at any time under any pretext causes us to be pessimistic.

With such an atmosphere, made all the more intense by the manner in which the proceedings regarding the act were conducted and the rejection of all amendments that were proposed by legislators regarding its logic and consistency, it is difficult to believe that nothing is at play here. It is possible that the point was to support the development of one of the current fractions in the Law and Justice party, but even if that is the case, we do not know whether, if this step was possible, the next one is not going to be addressed to those that are able to maintain their independence. Therefore, in my opinion, the practical consequences of the controversial provisions of the law and further changes involving rights and freedoms need to be carefully monitored and observed.  Although, theoretically, we still may count on the Presidential veto that may change the situation.

September, 2017 (the original text before adjustments giving context to the international reader was published on October 3rd, 2017, in “Lawyer” – a supplement to the Daily Legal Newspaper).

Post Scriptum. On September 4^th, the day after the first anniversary of the Black March against limiting reproductive rights, the police entered offices of several organizations helping women affected by violence. From at least one of the places, the police took away a computer with data of the organisation’s clients. The police claimed that its entrance was related to the investigation on the mismanagement of funds in the Ministry of Justice in the years 2012-2015. However the moment when the entrance took place, the smear campaign against the Black March in the right wing and public media and “arresting” the computer do not seem to be unrelated to everything that decides on the climate of approval for violating and limiting right and freedoms.