Lawyers for let’s not worry about the binding law

Since the “independent” and “objective” has published material claiming that Bartłomiej Sienkiewicz did everything according to the law when trying to take over TVP, it is worth explaining why the opinion of attorneys A. Kappes and T. Siemiątkowski’s is detached from reality and directly contradicts the 2016 Constitutional Tribunal ruling. 

The title speaks for itself. Bartholomew Sienkiewicz is an “cool guy” and has done nothing wrong. This does not come as a surprise when one remembers the text by attorney A. Kappes in the Rzeczpospolita, which formulated the thesis contained in the title: “with the restoration of the rule of law one cannot wait for a change of president”. In a nutshell, the idea was that since there is general chaos and lawlessness in Poland because Law and Justice party appointees have filled offices and authorities (e.g., the President), one should not generally bother with the law. It will take too long to change the law through passing statutes, and it is necessary to act quickly and immediately. This is why the article formulates the concept of ‘transitional justice’ (justice of the transition period). 

Attorney Kappes wrote about it as follows:

“This concept assumes that once an authoritarian regime, violating the foundations of the rule of law and disregarding civil rights and freedoms, has been removed from power, in addition to the settlements necessary in such a situation (criminal and constitutional liability of the functionaries of the ancien régime), the competences and staffing of the key organs of the state (the courts…) should be re-arranged, without necessarily adhering to the legal regulations enacted by the outgoing regime, institutionally protecting it, when these regulations are contrary to the constitution.”

Interestingly enough, on the issue of the takeover of Polish Television, the author prescribed exactly what Bartłomiej Sienkiewicz has just executed, i.e., single-handedly dismissing the management and supervisory board. 

Quote: “And let the court decide whether the Commercial Companies Code or the unconstitutional Act on the National Media Council is more important in this situation. That is the method which is needed.” 

So what does the interview in reveal?  Well, the Professors claim that the 2016 Act on the National Media Council (which has not been examined by the Constitutional Tribunal and continues to be effective), and which establishes in Article 2 (1) the exclusive competence to appoint and dismiss members of media companies, “is not a law” because it is subject to “secondary unconstitutionality”. 

What is this term referring to? In short, a situation where the Constitutional Tribunal has ruled that a provision is unconstitutional, and then the legislature re-enacts the same provision in defiance of the Constitutional Tribunal’s ruling.

And this is a misunderstanding. 

1) The Constitutional Tribunal, in its judgment of 13.12.2016, ref. K 13/16, considered, at the request of Adam Bodnar, among others, the amendments to the Broadcasting Act, which gave the Minister of the Treasury the exclusive power to appoint and dismiss members of supervisory boards and management boards of media companies. The Constitutional Tribunal, chaired by Professor A. Rzepliński, criticized this idea, stating that it deprives the National Broadcasting Council of any influence and politicises the media. Exactly the same mechanism, which the Constitutional Tribunal declared unconstitutional, has just been used by Bartłomiej Sienkiewicz, the ‘defender of the rule of law’.

2) It is a misunderstanding to suggest that the Constitutional Tribunal in 2016 evaluated the provisions of the Law on the National Media Council (it did happen, as they were not challenged), or expressed its opinion on the matter. The Tribunal writes about it explicitly in the explanatory memorandum! What is more, the same Constitutional Tribunal stated that the provisions of the Act on the National Media Council are in binding and only the Council has the power to change the bodies of media companies:

“With the entry into force of the Act on the National Media Council, the appointment of persons to perform the aforementioned functions shall be made with the participation of the National Media Council. This body shall have the power to appoint members of the management and supervisory boards of public broadcasting companies and to approve the appointment of the director of the field branch of such a company.”