A dispute over Poland’s state-owned media has shown how problematic the new Polish government’s project of elite replacement could be, writes Aleks Szczerbiak.

In the week leading up to Christmas, Poland’s culture minister, Bartłomiej Sienkiewicz, sacked the management of the TVP state television company, Polish Radio and the state-owned Polish Press Agency (PAP), together with their supervisory boards, and replaced them with his own nominees. He also switched off the broadcast feed for the ‘TVP Info’ 24-hour news channel.

Sienkiewicz is a member of the liberal-centrist Civic Platform (PO), the largest grouping in the new coalition government which took office in mid-December and is headed up by the party’s leader Donald Tusk, who was previously Polish prime minister between 2007-14.

Polish President Andrzej Duda – who is an ally of the right-wing Law and Justice (PiS) party, which lost power after eight years in office following its defeat in last October’s parliamentary election – condemned the new government’s move as unconstitutional and a flagrant violation of the principles of the “rule of law”. Immediately after Christmas, he refused to sign into law a budget-related spending bill which included 3 billion złoties of funding for the state-owned media. The government lacks the three-fifths parliamentary majority required to overturn a presidential veto.

When the new government originally announced its spending plans, they did not include funding for the state-owned media – which, at that time, were still effectively under the influence of Law and Justice-backed nominees – but, following the culture minister’s dramatic moves, the funds were re-instated. Sienkiewicz responded by putting the three state-owned media companies into insolvency and appointing liquidators to take over their day-to-day running.

Politicisation or pluralism?

“De-politicising” Polish state-owned media outlets was one of the new ruling parties’ main election pledges. They argued that during Law and Justice’s period in office, the taxpayer-funded media outlets, especially TVP’s news and current affairs programmes, had violated their statutory duty to provide services that were pluralistic and impartial, turning the state-owned broadcasters into crude ruling party propaganda channels.

They said that this point had been made repeatedly by international bodies such as the Organisation for Security and Co-operation in Europe (OSCE) election monitoring missions, while the CBOS polling agency found that public trust in state TV’s news output had fallen to its lowest ever levels.

However, Law and Justice supporters argued that the state-owned media helped to bring greater pluralism and balance to a media landscape otherwise dominated by the liberal-left. They said that Polish governments had always sought to influence state-owned media and there was also political bias under previous managements.

Law and Justice argued that, for example, before its 2015 changes to the state-owned media all three main Polish evening news bulletins had (to a greater or lesser extent) an anti-conservative bias. Some Law and Justice supporters acknowledged that after 2015 the pro-government bias became more blatant (and, therefore, arguably actually less effective). However, others argued that state-owned media needed to offer Poles a powerful counter-narrative to provide balance when privately-owned outlets were so overwhelmingly anti-Law and Justice.

Getting around the presidential veto

Nonetheless, even some of the new government’s supporters were frustrated that it did not appear to have any broader plan beyond closing down TVP Info and firing the state-owned media’s management and leading journalists. There was also a fierce dispute about the legality and constitutionality of Sienkiewicz’s actions. Indeed, the government’s critics did not just include Law and Justice but also a number of legal experts and bodies such as the Helsinki Foundation for Human Rights that had been highly critical of the previous administration’s approach to the “rule of law”.

For its part, Law and Justice argued that the statutory body responsible for appointing and dismissing the management of state-owned media was the national media council (RMN), whose term of office runs until 2028. If the new government wanted to change the legal rules for appointing state media authorities, then it needed to amend the media law (as Law and Justice did when it sacked the then-state broadcasting management boards in 2015). Law and Justice also accused the new government of acting in contravention of a so-called “safeguard order” issued by the Polish constitutional tribunal in December obliging it to refrain from making any changes to state-owned media management.

However, because of the risk of a presidential veto (Duda remains in office until summer 2025), the new government did not follow the legislative route. Instead, it pushed through a parliamentary resolution calling for decisive corrective action to restore the proper functioning of state-owned media. This cited a December 2016 constitutional tribunal ruling that found fault with aspects of the Law and Justice government’s 2015 takeover of state-owned media, specifically that only the National Broadcasting Council (KRRiTV), and not a government minister, could appoint their management boards.

The government argued that, as the 2016 ruling was never implemented, the provisions of the law establishing the national media council had no binding force and this empowered Sienkiewicz (as the legal representative of the state treasury, the companies’ sole shareholder) to use the powers of commercial law to remove the existing management and supervisory boards and appoint new ones.

In other words, it said that Sienkiewicz was correct to proceed in this way because Law and Justice’s earlier actions were themselves illegal, or at least un-constitutional. The government also argued that the constitutional tribunal’s December “protective order” had no legal validity because one of the members who issued the ruling had been appointed inappropriately.

Sienkiewicz changes tactics

The government’s critics responded that, even if the provisions of the act that empowered the national media council to appoint and dismiss public media managers appeared to conflict implicitly with the 2016 ruling, the constitutional tribunal did not declare explicitly that the council was unconstitutional because it was not considering directly the legislation empowering it. As noted above, it was examining earlier legislation passed when Law and Justice originally took control of the state-owned media at the end of 2015. This meant that the provisions of the law empowering the national media council were still operative.

The government’s supporters invoked the concept of “secondary un-constitutionality”, arguing that the tribunal ruling implied that the law transferring appointment powers to the national media council had no biding force because it violated the same constitutional standards as the one that it ruled unconstitutional in 2016.

The government’s critics, in turn, responded that, even if one accepted that the correct legal interpretation of the tribunal ruling was that the national media council could not appoint these management boards, then these powers should pass to the National Broadcasting Council (which currently has a majority of Law and Justice nominees) as the constitutionally designated body, and not a government minister. Moreover, they pointed out that when the current governing parties were in opposition to Law and Justice, they themselves argued that ministers directly appointing state-owned media management bodies was illegal and unconstitutional.

Indeed, some commentators argued that Sienkiewicz decided to put the state media companies into insolvency because he was not confident that the national court register (KRS), the body responsible for validating changes to the company boards, would confirm his new appointments. By instead appointing liquidators he was felt to have a much stronger legal case.

However, even those commentators who felt that the culture minister was legally empowered to appoint liquidators and by-pass both the national media council and National Broadcasting Council pointed out that they only have very limited powers relating strictly to preparing the businesses for liquidation. All of this further complicated an already complex and contested legal situation.

The ends justify the means?

Some government supporters use a “transitional justice” logic to justify its actions: that constitutional safeguards can (indeed, should) sometimes be ignored when taking steps to restore legal order to institutions that have been corrupted and whose legitimacy is questionable. In other words, that restoring democracy and the “rule of law” sometimes requires un-democratic and un-lawful (or questionably democratic and lawful) means.

However, even if one accepts this analysis of the nature of Law and Justice’s media reforms (which, as noted above, is strongly contested by the party’s supporters) this kind of “democratic coup” framing arguably uses the same (its critics argue, legally and constitutionally questionable) logic that the previous ruling party’s supporters applied to justify its own systemic reforms and elite replacement policies. These, they argued, were necessary to repair the flawed institutions and elites that emerged following Poland’s distorted post-1989 transition to democracy.

Some commentators also argue that even if the takeover of the state media companies was dubious (or even unlawful), it should ultimately be judged on whether it manages to establish more pluralistic and objective media outlets. However, the government’s critics argue that, not only is this once again simply replicating the “ends-justify-the-means” logic that the current governing parties previously accused Law and Justice of, but that the ruling camp has not actually presented any plan or vision of how the state media will be “de-politicised”.

The early indications were, they argued, that “de-politicisation” simply meant changing its management to one that is more sympathetic to the new government, with the previous crude bias being replaced by a softer, more subtle one.

Further polarisation of the political scene

The dispute over state-owned media further polarises an already bitterly divided Polish political scene. The government appears to have calculated that it was worth taking certain risks to give its most radical core supporters, who intensely disliked state media’s political output and wanted decisive action, a sense of moral victory and satisfaction that some kind of reckoning with Law and Justice’s legacy was finally taking place.

For Law and Justice, although the protests in and around the state media offices mainly involved parliamentary deputies and leading figures from the companies’ old guard, the notion that they are, as they put it, defending a free and plural media against an illegal and un-constitutional takeover provides the party and its supporters with a new rallying message.

On the other hand, the manner of the state media takeover puts Civic Platform’s junior coalition partner – the eclectic liberal- and agrarian-centrist “Third Road” (Trzecia Droga), which appeared to offer, to some extent at least, a break with the polarising logic of Polish politics – in a more awkward position.

There is also, of course, a risk that the spectacle of occupied buildings and switching off television signals could disconcert some moderate government supporters who might be concerned that once the rules have been bent (some would say broken) it becomes tempting to continue to do so, perhaps even more blatantly. On the other hand, forcing the Third Way to defend – and, therefore, be implicated in – such controversial actions may, ironically, actually end up binding them more closely to the governing coalition.

Elite replacement is problematic

The new government’s moves to change state-owned media management have set off a legal and political firestorm that is unlikely to settle down in the coming weeks, not least because it is part of its broader project of elite replacement. The un-picking of Law and Justice’s judicial appointments and reforms is likely to be the next battleground in this conflict.

The dispute over the state-owned media has shown how problematic this could be if legislation is required to shorten the previous government’s appointees’ terms of office. It will be even more difficult when, like judges, these appointees have constitutionally protected terms of office. Further get-arounds to avoid possible presidential vetoes will once-again leave the new administration open to accusations that it is guilty of the same undermining of democracy and “rule of law” of which it accused its predecessor.

Note: This article first appeared at Aleks Szczerbiak’s personal blog. It gives the views of the author, not the position of EUROPP – European Politics and Policy or the London School of Economics. Featured image credit: Fotokon/Shutterstock.com