YPC Weekly Newsletter

2003


GOING TOWARDS LIBERAL LEGISLATION THROUGH THE SELF-ELIMINATION WAR

On December 13 the National Assembly of Armenia passed the Law “On Mass Communication”. The whole story of this draft looked very much like Switchback Ride: the work process alternately inspired anger, indignation and despair and raised optimism and belief in the possibility of developing democratic institutions in the country. It also produced invaluable experience of lobbyist (meaning the protection of public interest) activity in the specific conditions of the Third Armenian Republic. While the law, in general, deserves a positive assessment, many observers still have the feeling that it was adopted in its present edition not because of the current social and political situation in the country, but despite it.

The Draft and the Authorities

The first version of the draft, having appeared in public in January 2002, contained provisions on licensing the media and the establishment of a state body, called, in essence, to exercise censorship. It was amazing how the Government of Armenia, a member country in the Council of Europe, could have approved of this document. Only the protests of the journalistic community and the very negative feedback of foreign experts, to a great extent explained by this sentiment within the profession, prevented the Government and the Parliament from hasty adoption of the law.

The pro-governmental political forces tried to justify their haste by the procrastination in the commitments to the Council of Europe; however the key role in the matter was played by the strong position taken by the CE: "consensus among media professionals on different provisions of this law is more important than a quick adoption". The lawmakers were also affected by the unified attitude of the journalists – most of the deputies did not want to come to the Parliament elections-2003 having their relations with media spoilt and the voting on the draft was repeatedly failed.

It is probably for the first time that the Armenian political establishment had a sudden acute sense of the necessity to consider the opinion of the professional community fighting for its rights. Till that time the members of the Parliament listened to the journalists at best, but mostly acted as they pleased. Thus, back in 1999, upon the initiative of Yerevan Press Club a number of non-governmental organizations proposed a package of draft laws on the information sphere to the National Assembly of Armenia. Among them was the draft law “On Mass Communication Media” that had passed several stages of discussion within the journalistic community and a number of international expert evaluations since 1996. However, neither the possibility to use a ready, thoroughly elaborated material, nor the haste (according to the commitments assumed by Armenia to the Council of Europe, the new media law was to be passed by mid-2001) proved mighty enough to induce the Armenian lawmakers to cooperate with the civil society.

With regard to this a statement of an official representing the previous administration of the country jumps to mind: “Trusting the journalists with the development of a press law is the same as to allow the drivers to define the traffic regulation…” The administration of the country has changed, but the mentality of the officials and the political elite remains the same. The lawmaking is the prerogative of official structures! So what if they lack competence and time to produce a qualified draft law that corresponds to the international standards within the timeframe specified – this still does not mean one has to take into account the opinions of independent experts! This is the standpoint prevailing among the Armenian authorities.

All this led to an embarrassment, the overcoming of which took a year and a half. To the credit of the draft authors it should be said that they came up with a correct perception of a situation and had the will to cooperate with journalistic associations to improve the document in a joint effort. Already in August 2003 the document had undergone changes serious enough not to represent new threats – additional to those existing before the document – to the freedom of expression. This new circumstance calmed a significant part of the journalistic community and eased the tension in its relations with the authors of the draft and the legislative.

Result of the Dialogue

The Standing Committee on Science, Education, Culture and Youth Issues of the new National Assembly, elected in May, 2003, received dozens if not hundreds of proposals from non-governmental organizations, the media and individual journalists. Expert evaluations were made by the Council of Europe, international organization “Article 19” and the German Agency for Technical Cooperation (GTZ). They were thoroughly studied, a number of the recommendations were accepted, owing to which after the first hearing on September 24 the draft was significantly amended and took quite a liberal standing.

Firstly, the law calls for the abolishment of the media registration institute, previously often used as an obstacle for the opposition press. Secondly, it provides the accountability of the journalist for invalid facts only but not for the opinion expressed. Thirdly, reliable mechanisms for protecting the information sources are provided: the journalist must only disclose them upon the demand of the court, during the consideration of grave or very grave crimes and only when the investigation had exhausted all other means to obtain information necessary for the case.

The document had removed the provisions that legally obliged the journalist to verify the validity of the information before publishing it (the officials finally realized that this is a professional, ethical but in no way a legal norm), as well as those setting unequal conditions for foreign media and journalists. All these principles above seem natural for a traditional democracy, yet for the Armenian legal system they proved a huge step forward.

Too Early to Celebrate…

It all seemed great; however before and after the first and the second hearings of the draft the journalistic community of Armenia came to face things much more dangerous than the bad media law, namely the confrontation among the journalists themselves that had become extremely tense and long.

With all the differences of the views on the media legislation, the journalistic profession before August, 2003 was united by a common aspiration: to prevent the adoption of the law that would restrict the freedom of expression. Four public organizations (the Journalists Union of Armenia, Yerevan Press Club, Internews Armenia, Committee to Protect Freedom of Expression) allowed for three development scenarios: 1) participation in the improvement of the official draft law (on the preliminary condition of omitting the most notorious provisions); 2) development of an alternative draft (basing on the draft authored by YPC in 1999); 3) refusal from the idea of a special media law and the filling in of the certain legal vacuum by introducing clarifying amendments into adjacent legislation (mainly, into the Civil Code).

The radical approach of another journalistic organization, the National Press Club (NPC), demanding to remove the draft from circulation and not to pass any laws regulating the media sphere, was quite in the line with the general strategy. The presence of a “moderate” and “radical” position, basing nonetheless on common principles, actually, enabled the community to prevent the speedy adoption of the undesirable draft.

Yet in August, 2003 the NPC unexpectedly announced that it had developed a draft law “On the Freedom of Press” and was going to submit it to the National Assembly as an alternative to the draft “On Mass Communication”. However, the text of the alternative draft was not publicized, none of other organizations was familiarized with it and its content became known to public at large only after the NPC submitted the document to the National Assembly…

It all happened right when “the moderate four” got the principal agreement of the authors of the official draft for its significant liberalization. At that stage (the document was already past the first hearing and received the support of the Parliament majority) it looked more reasonable to settle on “scenario 1” – the expert assistance to the improvement of the draft.

This was the start of the serious controversy between “the four” and the NPC, and it seemed the latter organization was now aiming purely at the promotion of its own draft. Yet this hastily developed document was inferior to the official draft both in terms of legal technique and proficiency and in terms of freedom of expression guarantees.

The situation with the media draft was transformed from sensitive into scandalous. To arrive at their aim, the NPC representatives launched the “plot explanation”, so favored in the post-Soviet countries. The law was allegedly to be used by the Government to sign the new proposals of the OSCE Minsk Group on Karabagh resolution that are against the interests of Armenia, concealing the content of the document from the public!? The authors of this version however failed to explain how in this case the Law “On Mass Communication” could contribute to the conspiracy of the authorities. Apparently, they were unaware that the issues of access to official information in Armenia were regulated by a different law, the RA Law “On Freedom of Information”, adopted in September, 2003 and creating pre-conditions for greater transparency of state structures.

Opponents of the draft “On Mass Communication” criticized it for the introduction of criminal liability of journalists for libel and insult, in particular to the address of officials. This was a sign of even greater incompetence. The provisions on the criminal prosecution for the libel and insult were contained in the RA Criminal Code, and when in June, 2003 a number of public organizations (including Yerevan Press Club and Internews) and diplomatic missions accredited in Armenia advocated the removal of these provisions from the new Criminal Code to be passed in August, the “critics” made no response to this demand (apparently due to the summer vacations), however were loud and inadequate in their post factum statements.

Unfortunately more than enough incompetent statements of this kind were made with regard to the draft law. The appeals of “the four” to the colleagues to get the discussion on the draft into the constructive direction, not to yield to personal ambitions, not to let themselves be involved in political intrigues had impact only on some of the journalistic community. In Yerevan and Armenian regions a series of discussions were held resulting in a number of proposals, contributing to the improvement of the draft law, submitted to the Parliament. The other part of the profession unfortunately got involved in a “we-they” game, determining their attitudes to the draft in accordance with political affiliations and not its content.

Media and Opposition

The politicians were quick in using the hot, broadly covered issue and the chance to appear in favorable role of democratic freedom advocates. The opposition faction “Justice” decided to support the alternative draft of the National Press Club, although some reasonable minds in it were inclined to focus on the improvement of the sufficiently liberal official draft and not to discredit themselves with any relation to the raw document, standing far from the modern international standards. Yet the ambition to be confronting authorities at whatever cost and subject them to criticism proved stronger than their readiness to constructive participation in the law-making.

Naturally, the alternative draft law was negatively assessed by the Government and the specialized Standing Committee and was not included into the NA session agenda, but was a reason of much hullabaloo. Its advocates did not fail to develop the “conspiracy theory” in the context of the “rose revolution” in Georgia. The representatives of NPC, forgetting about “the Karabagh trace”, linked the adoption of the draft “On Mass Communication” with the fears of Armenian authorities of a replication of the Georgian scenario… And again, not a single person gave an articulate explanation of how, by which specific provisions the law protects the authorities from revolutions?!

Meanwhile, the events in the neighboring country were instructive. All the observers noted the important role in the support of the opposition that the Georgian TV company “Rustavi-2” played. Let the discussion on how relevant the partial direct participation of a broadcast medium in a political controversy is, be put aside. We had better restate: the television (to much greater extent than print press or radio) is a significant factor in the social and political life of such countries as Armenia or Georgia, and not only.

This is why the Georgian public was on its feet to have “Rustavi-2” back, when this company was deprived of air for a year and a half, and subsequently, whenever any threat to “Rustavi” team occurred, people went out into the streets at the very first call. The leading Georgian politicians, who joined the opposition during the recent events, also had quite a big role in the development and survival of “Rustavi-2”. And what they cared about at that point was not so much a tribune for themselves, but primarily an independent medium. Having participated in the overthrow of Shevardnadze, the TV company is now just as critical towards the new administration of the country.

In October 2000 in Armenia, when the Law “On Television and Radio” was being passed, setting ground for the total control of the authorities over the broadcast market, not a single opposition deputy voted “against”! Three years after, when on the pretext of compiling with the commitments to the Council of Europe, the pro-governmental factions initiated amendments into this law necessary to root the achievements of the document (namely, the elimination of diversity on the air), the oppositionaries did nothing more than silently boycott the voting – they never vote on the drafts presented by the authorities. It is noteworthy that this occurred along with the discussion of a quite acceptable draft “On Mass Communication”. However, the opposition neither made stormy protests, as in the case of the latter, nor provided support to the proposals of Yerevan Press Club and Internews (who presented an alternative law in as far back as 2000 and were consistently lobbying the liberalization of the broadcast law).

This resulted in a continued legal situation that enabled to deprive of air the only (meaning the national and Yerevan channels) TV company not influenced by the authorities, “A1+” – to a certain extent, the Armenian analogue of “Rustavi-2” – and to get the whole airtime to serve the incumbent during the presidential elections of 2003.

Why then was the Parliament opposition, supposed to be interested in the greater media freedom as the basis for its political perspectives, so inconsistent? Apparently, only the representatives of “Justice” itself can make a comprehensive answer. But since one can hardly expect the politicians to come up with sincere confessions, deductions of our own must be made.

Firstly, “Justice” bloc itself is composed of politicians with such different views on democratic freedoms and the role of media in the society that it is hard to expect them to display unified, firm and well-considered attitude on these issues. Secondly, the broadcast media regulation is a complicated and very professional issue and calls for serious work, while making noise about the general draft law “On Mass Communication” does not require special knowledge. Thirdly, the conflict about the latter draft was well under way by the time of the first session of the newly elected Parliament, was at the public attention focus and the participation in it was a source of immediate publicity, longed for. Meanwhile, to attract the public interest to the broadcast legislation one had to make an effort after effort. Fourthly, the opposition was well aware that while in the case of the draft law “On Mass Communication” the authorities would be sufficiently flexible and ready to negotiate, in the matters of having control over the air they will be extremely resistant. Therefore, it was worthwhile to focus on “the weak wing” – the fact that it could become a pure trap apparently failed to worry “Justice”. Fifthly and finally – simultaneously with the amendments to the Law “On Television and Radio”, initiated by the pro-governmental factions, the amendments proposed by “Justice” members Viktor Dallakian and Artak Arakelian were being considered. They specifically referred to the mandatory issuance of the newscasts with hand-language translation – issues rather dangerless from the point of view of control over the broadcast media. The opposition was given not a frequent chance of putting a passed draft law to its credit. Why cannot a purely parliamentarian deal be allowed, if it is quite in the line with the general strategy: we do not interfere with what you do, you are not in our way in what we do…

If the suppositions above have grounds, and most probably, they do, the authorities were very skillful in using the exchange and distraction tactics. Having conceded in the issues that do not have a direct impact on the power distribution in the information sphere, they retained all the levers ensuring their monopoly for the TV tribune. While lances were broken over the draft “On Mass Communication”, the amendments to the broadcast law were passed almost smoothly.

Yet, the behavior of “the political class” (what happened allows uniting the pro-governmental and opposition forces in this notion) was predictable. The upsetting circumstance is that its rules of the game were taken also by several media, journalists. In Armenia when the press finds it hard to survive without the financial support of the political circles, manipulation with media is a habitual matter. Still, the journalists could have displayed more aspiration to settle their own affairs themselves in the issues that touch upon the immediate interests of media community. They were however again divided into combating camps, allowing the politicians to manipulate their professional future.

What Will Happen Next?

The Law “On Mass Communication” will hardly have a serious impact on the routine practices of the information sphere. This statement in no way diminishes its progressiveness and other advantages listed. However, the abolishment of registration will hardly mean anything important for the established media market of Armenia. The freedom protection guarantees are not very urgent either, since all the last problems of journalists were linked to the exercise of provisions of Criminal and Civil Codes against them as well as the Law “On Television and Radio”, and not the general media legislation. This is why both the expectations and the fears related to the new law were obvious exaggerated.

Nevertheless, in a broader perspective the value of the law is indisputable. It provides a shield against any attempt to introduce censorship, use the accreditation procedure to conceal information from journalists. The principles it stipulates can assist the liberalization of the whole legal field, regulating the media activity. And in 2004 the freedom of expression supporters of Armenia face the important challenge of bringing other legislative acts, not marked by progressive trends so far, into compliance with the Law “On Mass Communication”. And the law itself is in need of amendment, as it still contains certain inconsistencies and inaccuracies.

Considering the perspective of new battles in the legal arena, the Armenian journalistic community may find it useful to take record of its lobbyist resources.

The Government and the ruling coalition in the National Assembly are naturally unready to cardinal liberalization of media legislation. However, in some issues that do not represent a direct threat to their power they are able to compromise. Here a lot will depend primarily on the persistence of international organizations in their demand of democratic reforms and, to a lesser extent, on the pressure of the non-governmental sector. The unprecedented openness for cooperation of the two key figures in promoting the draft law “On Mass Communication”, the Deputy Minister of Justice Ashot Abovian and the Chairwoman of the Parliament Committee on Science, Education, Culture and Youth Issues Hranush Hakobian, on the one hand inspires optimism, but on the other – causes certain fears. The crude and unfair attacks that were made on them by the draft critics can be taken as a warning to all the representatives of authorities, ready to respect the opinion of the journalistic community: you can hardly expect gratitude from it; only the problems will come pouring… Besides, the people in the administration, who had been longing for smothering the press, having displayed their tolerance to the liberal provisions of the law, naturally remain unsatisfied. It is not incidental that certain pro-governmental media, usually ardent in supporting the governmental initiatives, gave a cold shoulder to draft. Therefore, attempts to revenge shaped as legislative proposals, restricting freedom of expression, can be expected in 2004.

The Council of Europe today acts as the main democracy teacher, and its constant attention to the freedom of media was an important factor for progress in the lawmaking. Yet, the three-year period, given to Armenia to fulfill its commitments to the CE, is drawing to its end. Official Yerevan can hardly be in the danger of getting an “F”, while even a “D” given by Strasbourg will release it from the pressure of the past several years and will allow relaxing in the absence of the regular visits by the monitoring groups. Besides, the effectiveness of the CE is reduced by the fact that its representatives avoid to give direct assessment to the drafts until the experts come up with official comment. The translation of the drafts, their analysis, the translation of the comments take months, and when these reach the members of Armenian Parliament, the momentum is lost. The law is either passed or the work continues on a significantly modified document as it is. The situation is also aggravated by another mysterious rule that Strasbourg and the Government of the “trained” country are following obediently – the comments of the CE experts on the laws and drafts are closed to the public until the local authorities think them fit to be publicized. And the dialogue is going on strictly between the leadership of the Parliament (or the Government) and the Council of Europe, the other interested participants of the legislative processes remain left out. This “conspiracy” often enables the high-ranked Armenian officials to manipulate the evaluation of Strasbourg, passing the negative ones for positive comments. Some of the common European principles, poorly rooting into Armenian soil so far, are also put to the benefit of parochial supporters of control over media. Thus, the CE recommends providing for the mechanisms of financial transparency of media, since the public has a right to know about the possible political and other influences they are under. However, considering the Armenian specifics and its shadow economy, the requirement that media publish their annual financial reports included into the law will not ensure its purpose but can become a source of pressuring the opposition press.

As the experience of the last months showed, the other international organizations can become very useful in the case they effectively cooperate with local competent partners. The best example of this is the working group on media legislation, established upon the initiative of Yerevan OSCE Office and uniting the representatives of diplomatic missions, international organizations and Armenian journalistic associations. During the six month of its existence this structure managed to become an influential player in the legislative field. The coordinated effort with regard to the draft “On Mass Communication” of “Article 19” and Yerevan Press Club were also very productive. The reputation and the expert assessment of internationals, the vital interest and the thorough knowledge of local realities by the Armenian partners could hardly go without each other. This factor (unfortunately, underused in the case of the Council of Europe) seems most promising for the future.

The Parliament opposition, as it was already stressed, once more confirmed its belonging to the unified “political class” – despite the controversies between the different political parties and groups their interests are intertwined closer than with the interests of the public at large. This is why the political benefits are more influential on the behavior of the opposition than the declared ambition to form and strengthen democratic institutions. At the same time, under certain circumstances the journalists can rely on a situation-prompted support of the most educated MPs from opposition.

Finally, what can the journalistic community do? Its fragmentation on the last stage of the discussion of the draft “On Mass Communication” was the main reason for the pessimistic conclusion in the lead of this article: the campaign had a favorable outcome not because of but despite the political and social situation in Armenia. Had it not been the urgency of filling in the commitment to the Council of Europe till the end of 2003, the chance to get a quite liberal law could have been missed. One can only learn lessons from this other stage of war that journalistic community wages risking self-elimination, into which the debates about the draft law were transformed in autumn.

Boris NAVASARDIAN
President of Yerevan Press Club