Political polarisation in Poland is sliding towards constitutional crisis after the country’s highest court ruled illegal the public media reforms of the new government of Donald Tusk.
The constitutional tribunal said the government’s use of commercial law to place public media outlets into administration, allowing it sidestep media rules to dismiss managers, had “no legal effect”.
It said parliament was required to legislate on the question of administration, while management decisions were the domain of Poland’s National Media Council – not the government.
The Tusk administration, in turn, has dismissed as illegitimate the ruling because it said one of the judges involved was appointed illegally by the previous Law and Justice (PiS) government. As these same judges were involved, too, in setting up the media council, the government argues that it – and its decisions – are illegitimate.
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Five weeks after Mr Tusk returned as Polish prime minister, the battle for control of public media has triggered the long-anticipated collision of Poland’s parallel and unreconcilable legal systems, each backed by its respective political camp.
In what it sees as a race to restore the rule of law, the centrist pro-EU Tusk administration says it will ignore all rulings from all bodies it says are packed with PiS loyalists. Though the reforms have sparked protest in some quarters, Warsaw says it is operating under higher legal cover.
In a unanimous May 2021 ruling, the European Court of Human Rights (ECHR) found that Poland’s constitutional court was “not a tribunal established by law” because of the contested nature of PiS-appointed judges on the bench.
The Strasbourg judges added that Poland’s highest court, which is headed by a close friend of PiS chairman Jaroslaw Kaczynski, was “not independent and impartial” and its rulings “do not have universally binding force”.
Three years after PiS shrugged off this ECHR ruling while in power, party officials, now in opposition, embraced this week’s constitutional court ruling as further proof that the new government is the real danger to Poland’s legal and political stability.
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A similar legal standoff with no apparent resolution mechanism exists after justice minister Adam Bodnar dismissed Poland’s head of public prosecutions, whom he views as another illegitimate PiS ally.
On Friday Mr Bodnar welcomed to Warsaw EU justice commissioner Didier Reynders who, along with his predecessors, clashed with the PiS government and withheld billions of euro in EU funding until it rolled back contested reforms.
Mr Reynders said he was “convinced that Poland can fully restore its position as a state respecting rule-of-law standards”.
Despite PiS protests at government reforms, a majority of Poles – 56.3 per cent – have expressed a positive opinion of the new Tusk administration in an opinion poll, with 36.9 per cent holding a negative view and 6.8 per cent undecided.
Political analyst Filip Pazderski warned that Poland’s real battles were “only beginning”.
“No one has tried before to restore the rule of law after eight years of populist rule in a country,” said Mr Pazderski, policy analyst at Warsaw’s Institute of Public Affairs. . “Poland is innovating how this can be done and it is a very difficult process, given PiS state capture on so many levels.”
