[b][i]The Limits of Privatization of Public Tasks and Powers[/i][/b]
Journal Title: Krytyka Prawa. Niezależne studia nad prawem - Year 2012, Vol 4, Issue 1
Abstract
The purpose of this article is to examine the limits of the transfer of public powers to the private sector. To define these limits, one must separate actual powers (competences) to legislate and to issue binding decisions from merely satisfying general needs of the population such as water supply or garbage disposal. As a matter of principle, the Polish law does not provide for transfer of raw power with few exceptions such as governance of regulated professions. The scope of privatization of power in Poland is relatively modest compared to that in the United States where prisons and much of the war industry has been delegated to private companies. The general conclusion of this article is that one must observe caution when delegating powers, because the general conviction that private performance is more effective is not true in view of the experiences described in legal and political literature. There is also a danger of using privatization to extend the powers of the executive branch of government and to avoid the regimen imposed on public bodies by constitutions and other laws, for example in the area of gathering information about citizens. Non-governmental organizations may be instrumental in the process of obscuring the transparency of public administration and their involvement in public functions may bring about many other negative consequences. In separating inherently governmental powers and tasks from mere technical tasks, one may resort to the criteria such as the presence of discretionary power and effectiveness, which in case of private agencies must be substantially higher than the government's performance and supported by evidence. Contrary to common belief, private performance is not per se superior, particularly given that economy has not developed effective tools to measure long-term efficiency of performance and its impact on human and natural environment. Therefore, even when the law allows to privatize public functions, there should be an assumption that public performance should be the preferred choice. Also, where privatization is necessary, performance of public tasks should be entrusted to professional enterprises rather than to non-governmental organizations.
Authors and Affiliations
Waldemar Hoff
Keywords
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