Poland is going through a political storm following the "takeover" of public media by the new ruling coalition. Opinions are sharply divided so we are presenting several positions so the reader can decide for themselves.
Recap
On the 19th of December, Poland's Sejm passed a Resolution calling for the reestablishment of "constitutional order" in public media, in particular concerning state television TVP, Polish Radio and the official news agency PAP. In this spirit, the Culture Minister, Bartłomiej Sienkiewicz, dismissed the boards of the three institutions.
The government's broad argument is clear: democratic standards are being eroded - inter alia by turning state media into means of propaganda and the politicisation of the highest constitutional authority, the Constitutional Tribunal - so it is not sufficient to simply follow procedures envisaged in the Constitution. However, the specific legal arguments offered by the ruling coalition and its allies are complex, controversial and varied.
The government's arguments defend their not following "normal" constitutional steps invoking the "normal" constitutional authorities. What are those steps? A new Media Act could have been drafted, voted on and sent to the President for approval. However, since President Andrzej Duda is an integral part of the undermining of the Constitution under Law and Justice - the government would presumably argue - there is no point simply working towards his veto.
One member of the ruling coalition in particular, The Left, has indicated that the current solution is "temporary" until a new Act is passed - conceding, implicitly, the imperfections of the current situation.
Respecting EU norms and treaties
The December 19th Resolution refers to Poland's commitments to EU norms and laws and the violations of those laws by Law and Justice. This appears to be a legal basis being offered by the government but it may also anticipate future decisions of European courts if decisions of the Polish government are the subject of legal proceedings. Anita Kucharska-Dziedzic from New Left has confirmed this status of the Resolution as a kind of stop-gap.
The government's action can be frustrated in the short term by the National Court Registry (KRS - not to be confused with the other KRS, the National Council of the Judiciary, also a key element in Poland's constitutional crisis) - the KRS may refuse to register new media boards. In the medium term disputes may also end up being settled in European Courts.
Commercial Company Code
The main thrust of the government's legal argument and the legal basis they have offered for the dismissal of the previous boards is Poland's Commercial Company Code which includes provisions for a company owner (in this case the State Treasury) to take action in cases when the company is at risk.
Pro-government Senator Krzysztof Kwiatkowski (also former Minister of Justice and former Head of Poland's Supreme Audit Office (NIK) has put this case forcefully. In an in-depth interview for Super Express, he relies on the Commercial Company Code as his legal basis together with the fact that the state media, TVP in particular, is in a desperate financial situation requiring and not merely permitting the owner to intervene.
This argument is the more convincing due to the recent actions of the Supreme Audit Office (NIK). On the basis of a scathing report, the Supreme Audit Office has informed the State Prosecutor's Office of suspected crimes committed by TVP's management. (The report details dramatic financial losses as well as irregular practices concerning payment of staff.)
The current Head of NIK is Marian Banaś. Though hailing from the Law and Justice milieu, he fell into conflict with his own camp and has been widely reported as supporting "his enemy's enemy".
Kwiatkowski's argument attempts to avoid the need to consult opposition-dominated state organs, in particular the Constitutional Tribunal and the President. He also notably places little legal weight on the Resolution or freedom of speech.
Sources: Super Express, PAP, Supreme Audit Chamber website, gov.pl
(Upcoming: "The Opposition's Case")
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