The regulation of law can be restored differently from by means of resolution laws. And it does not should be “unrighteous”. 2 law professors argue why the appointment of Kurski in 2016 was not OK, and the appointment of Sygut as president of TVP in 2023 is OK
PIOTR PACEWICZ
"THE NATIONAL Broadcasting and Broadcasting Council, which according to the Constitution should be elected by public media authorities, has been deprived of this competence by a bill incompatible with the Constitution. And the National Media Council, whose competence has been granted, cannot do so either, due to the fact that it has received these powers contrary to the Constitution. In specified a legal loophole, Sienkiewicz worked" – professors of law Aleksander Kappas and Tomasz Siemiatkowski reject opinions (also OKO.press) that the Minister of Culture violated the Law of the Law of the Polish Republic.
He did not violate, due to the fact that the Law on Public Media is not a law. There's no law.
Piotr Pacewicz, OKO.press: respective times in the Oko.press and hospitablely in TVN24 and TOK FM I put the thesis that by establishing a fresh board of TVP, PR and PAP Minister Bartłomiej Sienkiewicz broke the law we inherited from the authoritarian governments of the Laws. I've heard you say I don't have a race.and.
Prof. Aleksander Kappas, Head of the Department of Commercial Law of the University of Lodz'Cause you're wrong.
Prof. Tomasz Siemietkowski, Head of the School of economical Law: You can publically call this transitional state as we have it, but the legal analysis is clear: the minister of law did not break*.
The Act of June 2016 on the National Media Council states that "The Council is the competent authority for the appointment and dismissal of individual warehouses of public broadcasting and tv bodies and PAP". Didn't the minister get into her powers?
To find whether this regulation of law applies, we request to go back in time. The establishment of supervisory boards of public broadcasting companies since 1992 has been under the work of the National Broadcasting and Broadcasting Council (according to the then Articles 27 and 28 of the Broadcasting Act).
More specifically, the KRRiT selected 5 people to the seven-member supervisory boards of TVP and PR (candidates were reported by college bodies of academic universities). The sixth individual indicated the Minister of Culture, the seventh Minister of the Treasury. The members of the board were appointed and dismissed by the NRA, but only at the request of the supervisory board.
Small Media Act (2015), an assassination of the Constitution
These competences of KRRiT lost in December 2015 as a consequence of the alleged tiny media bill. The majority of the parliament voted that 5 members of the supervisory boards would be appointed by the Treasury Minister. In addition, the minister straight appointed and recalled members of the board of directors of TVP and PR.
Jarosław Kaczyński wanted to gain political control of public media at all costs and usage them to cultivate propaganda. The then KRRiT, elected before the PiS election victory, would not have given TVP to Jack Kurski, who was president from January 2016 to September 2022 (with a short break).
It was this tiny media bill that Adam Bodnar, the Ombudsman, appealed to the Constitutional Court, that a second group of Members applied.
By judgement of December 2016, the Court considered that the exclusion of the NRA from the appointment and dismissal of members of supervisory boards was incompatible with Article 213(1) of the Constitution (in conjunction with Articles 14 and 54(1)). The Constitutional Tribunal besides found it incompatible with the amendment, according to which the boards of public broadcasting companies, including the president of the Board, appoints and dismisses the Minister.
The CCC justified the judgement by the fact that the powers of the constitutional authority (CRRiT) could not be undermined by the average law. Although the legislator is entitled to 'a large deal of freedom in organisational formation' of public broadcasting and broadcasting, this cannot lead to the depriving of the KRRiT of the powers essential to carry out its constitutional tasks.
The judgement of the Constitutional Tribunal did not concern the RCN, but there was secondary unconstitutionality
However, the judgement of the Constitutional Tribunal, contrary to the media opinions circulating, did not concern the National Media Council, even though the complaints of the RPO and MPs were received by the Constitutional Tribunal before the RMN was established.
Agreed. In June 2016, another bill amending the Broadcasting Act was passed. The National Media Council was formed, a fresh public administration body that was granted authority over TVP.
In addition to the provision of the RMG Act, which you quoted at the beginning, there are 2 unambiguous articles in the Broadcasting and Broadcasting Act: "Members of the Supervisory Board shall be appointed and dismissed by the National Media Council" and "Members of the Board, including the president of the Board, shall be appointed and dismissed by the National Media Council".
However, you are right that the provisions on the RMG have not been contested by the Constitutional Tribunal, and their compatibility with the Constitution has not been examined.
So there is simply a law that, although undemocratic, authoritarian in intent and in practice, and in general a disgusting democratic soul, is inactive valid. Moreover, the general conclusion of the Constitutional Tribunal judgement is that the Minister should not replace the institutions which are appointed to elect public media authorities. And Minister Sienkiewicz just did.
Here's the basic thing that makes your reasoning false.
It should be considered that the key provision that ‘members of the supervisory board are appointed and appealed by the National Media Council’ to which you are referring is besides incompatible with the Constitution, despite the deficiency of a appropriate resolution of the Constitutional Tribunal.
And that means you don't gotta follow it, and even if you want to, you can't violate it due to the fact that it's not a law.
It is assumed that, if the provision of the later law duplicates the flaw of the provision of the earlier law, which was declared by the Constitutional Tribunal to be incompatible with the Constitution, the provision of the later law is besides incompatible with the Constitution.
In the explanation of law, this situation is regarded as alleged secondary unconstitutionality.
Giving the RMBN the competences of the KRRiT violates the same constitutional standard as handing them over to the Minister of Government in a tiny media bill. The non-compliance concerns the same provisions of the Constitution with which the provision of the earlier Act was incompatible. The essence of the flaws of the 2 provisions is identical and concerns the depletion of competences of the same constitutional body – the KRRiT.
The Court of First Instance may itself measure the unconstitutionality of the Law of the Law of the Law of the Law of the Law of the Law of the Law of the Law of the
Sticking to the "original unconstitutionality" in the 2016 judgment. It may be a pity that the creation of the RMG was not contested against the Constitutional Tribunal, due to the fact that we would have its unconstitutionality in black and white alternatively than by analogy. And the court to decide whether Sienkiewicz had the right to name public media authorities based on the Commercial Companies Code would have a simpler task.
It follows from the caselaw (mainly NSA and provincial administrative courts) that
secondary unconstitutionality exempts the court ruling from the work to ask the Constitutional Tribunal a question about the conformity of the Act with the Constitution of the Republic of Poland.
The court may make its own assessment and, if it considers that the provision in question is unconstitutional, it has no legal effect and should be treated as non-existent.
The court will so face a choice. Follow the letter of applicable law or make an assessment of its unconstitutionality.
These are the consequences of the demolition of the legal system. The Constitutional Tribunal, which was formed in late 2015 (with the participation of the judges of the "dublers", elected by the Sejm of the 8th word of office for seats already filled by the Sejm of the 7th word of office) and in late 2016 (with the "president" of Julia Przyłębska), is not the Constitutional Tribunal, which is governed by Article 194 of the Constitution.
It has been composed of 12 judges since 2015, due to the fact that 3 people (dublers) cannot be considered judges of the Constitutional Tribunal, and the Constitution of the Republic of Poland states that the Constitutional Tribunal consists of 15 judges. Since 2016 the TK has no president – its constitutional body, as the selection of Julia Przyłębska for this function is subject to serious defects.
Since the Constitutional Tribunal does not presently exist, it is not possible to talk of the presumption of constitutionality of the laws under which the Act applies and is considered to be compatible with the Constitution until the Constitutional Tribunal considers it incompatible with the Constitution. Irrespective of the above concept of secondary unconstitutionality of the Act
the absence of the Constitutional Court opens the field for the judges to the alleged distributed constitutional control,
by the general courts and/or the ultimate Court (the most well-known example is the resolution of the 3 joint chambers of the ultimate Courts of 23 January 2020 on the alleged neojudges).
In this legal branch Sienkiewicz utilized the Commercial Companies Code
The point of the TK judgement was clear: the politician (minister) cannot decide for the KRRiT, due to the fact that it threatens to restrict freedom of speech and media freedom. Then possibly we should reconstruct these competences to the KRRiT, redrafting the unfortunate Broadcasting Act again?
However, so far, we have an unconstitutional National Media Council and the KRRiT with no powers to form the composition of TVP bodies. The judgement of the "real" TK of 2016 does not mean that the competences of the KRRiT are revived. Only a fresh bill could reconstruct her competence, received by an unconstitutional bill. However, specified a bill was not passed due to the fact that the judgement of the Constitutional Tribunal was not enforced.
So there's a paradoxical loophole in the law:
the authority to which the Constitution should exercise competence is deprived of it by a law incompatible with the Constitution,
and the authority to which that competence has been conferred does not have it, either, as granting it is incompatible with the Constitution.
The Resolution of the Sejm of 19 December 2023 referred to "standards of law during a transitional period", but announced a decision towards government "which will guarantee the permanent restoration of the law's compliance with the Constitution". Fixing the law would require a further amendment of the Act and giving the KRRiT what it deserves. But politics comes in due to the fact that KRRiT is controlled by PiS denominations headed by Maciej Świrski, who persecuted free media. The Tusk government faced the same problem as the Beata Szydło government in 2015. Only then it was about limiting freedom of speech and media, and now – at least in declarations – about restoring the statutory function of public media.
But a temporary solution – to pass a fresh law – was found. The provisions of the Broadcasting Act concerning the appointment of the authorities of companies [public media] constitute the alleged peculiar provisions (lex specialis) in relation to the regulation of the Commercial Companies Code.
By 2016, the Broadcasting and tv Act “disabled” the application of the Code Articles, which are general provisions (lex generalis). But since the competence conferred on the KRRiT expired and was not reinstated, lex generalis, i.e. simply the provisions of the Company Code (Articles 368 and 385). The general gathering of shareholders shall be elected by the company authorities.
That means Minister Sienkiewicz himself. And the problem solved?
Yeah. The legal situation here is clear. TVP is simply a one-man company of the State Treasury and the powers of the general gathering of shareholders are exercised by the Minister of Culture and National Heritage.
It may convene an assembly and adopt resolutions. So if on December 19, 2023 the minister, acting as a general gathering of TVP shareholders, adopted resolutions to dismiss members of the TVP supervisory board and appoint fresh ones, they are lawful.
They do not infringe the Constitution, including the competences of the NRA, as the Constitution in Article 215 refers to the Act: ‘The principles and mode of operation of the NRA, its organisation and the detailed rules for the appointment of its members shall be governed by the Act’.
The Treasury owns 100 percent of TVP shares, so TVP's property belongs to the Treasury. In favour of the power of the State Treasury to make changes in the composition of the TVP bodies erstwhile no another entity can do so legally, it so speaks out for the protection of TVP by the owner of the property, who, in fact, bears the consequences of the financial condition of TVP by granting him an yearly budget grant.
And what is the importance of the resolution of the Sejm of December 19, 2023? Umbrella for Sienkiewicz's actions?
The resolution calls for the restoration of legal order and the impartiality and integrity of public media. However, it does not supply a legal basis for the activities of the Minister of Culture, as it is not a origin of law which is commonly applicable.
The resolution can be read as a political basis requiring the minister to take the measures described therein.
The point is that these activities have the legal basis, which we indicated above – in the form of a Code of Commercial Companies. This is the only possibility, due to the legal gap described above, that no another authority has the power under the applicable law to make personnel changes on TVP.
What if the judges say otherwise?
What if the judges of the National Court Register, however, find that Sienkiewicz's resolutions recalling and appointing fresh members of the TVP's supervisory board were against the law and refuse to registry them?
Even if the registered court had specified a view, the resolutions of the shareholders' assembly (that is, practically the Minister of Culture) apply until the territory Court in Warsaw has issued a final judgement declaring their non-compliance with the law, i.e. they will not revoke them.
Such a repeal of the judgement could happen on request (a lawsuit) of a closed ellipse of entities (management, supervisory board, members of these bodies, shareholder who voted against the resolution, etc.)
However, in the case of a decision by the minister, it is not visible who could or would like to make specified a request.
Such powers on general terms are besides granted to the prosecutor.
Does this mean that even if the registration court finds the resolutions of Minister Sienkiewicz to be against the law, it must respect them and enter the fresh authorities of TVP in the National Court Register?
The registration court should enter regardless of its view of the flaw of the resolutions and until these resolutions are definitively repealed by the competent court (the territory Court in Warsaw), specified an entry will be valid.
Again, but in simple words: How can we correct the regulation of law?
Our conversation is dense from legal argument. If you gentlemen professors were to explain to the alleged simple man why, erstwhile the minister of the government of the Law and Justice called Jack Kurski as the head of TVP, it was not OK, and erstwhile the minister of the government of the Coalition on October 15 calls Thomas Sygut, it is OK?
It's truly complicated and hard to realize for a non-law. We may say this: the appointment of Kurski came on the basis of a bill explicitly contrary to the Constitution (as stated by the ‘real’ TK in 2016). That's why it wasn't OK.
We presently have a legal loophole (remaining the failure by the Law and Justice of that TK judgment), due to the fact that personnel changes in the TVP authorities cannot be made either by the KRRiT or by the National Media Council, due to the fact that the erstwhile no longer has the powers, and the second acts contrary to the Constitution.
Since peculiar provisions cannot be applied, general rules, i.e. those laid down in the Commercial Companies Code, should be applied. And it's OK.
This will proceed until the Sejm passes the fresh Broadcasting Act. In accordance with the Constitution, of course.
However, not only a modest publicist, many lawyers besides have doubts. Even if we accept that the fresh power must take shortcuts.
Many commentators say something like this: changes in TVP were necessary, something had to be done. But Minister Sienkiewicz “walked over the band” and acted on the border of law, and even violated the law.
We unequivocally claim that he acted in accordance with the law, although this legal state is complicated.
Finally, we will have a more general reflection, not only about changes in TVP. Many lawyers with good intentions are criticising the proposed solutions to repair the regulation of law, saying that we cannot reconstruct the regulation of law by means that break it.
As a result, we can only pass the "repair" laws, that is, wait 2 more years, due to the fact that the current president will veto many specified laws, especially in the area of the judiciary. We do not share that way of thinking.
The regulation of law can be restored, at least to any extent, utilizing options another than the adoption of resolution laws.
And it does not should be “unrighteous”. As in the case of actions of min. Sienkiewicz.we authorities of TVP. No, Sienkiewicz did not break the law, he did not go after the bandit [Kappes, Siemietkowski]
