YPC Weekly Newsletter

2006


DRAFT LAWS ON BROADCASTING SHOULD BE BROADLY DISCUSSED

On September 26 the extraordinary session of the RA National Assembly started,
as summoned by the Government of Armenia. The extensive agenda of the session
also included a package of draft laws on broadcasting: Draft RA Law “On Introducing
Amendments and Additions to the RA Law ‘On Television and Radio’”; Draft RA
Law “On Introducing Amendments to RA Law ‘Regulations of the National Commission
on Television and Radio’”; Draft RA Law “On Introducing an Addition to the RA
Law ‘On State Duty’”. At the parliamentary session the package was presented
by the RA Minister of Justice David Harutiunian.

The drafts were received by the National Assembly on September 25 – on the
eve of the extraordinary session opening. So, neither the deputies, nor the
specialized Standing Committee had a chance to properly study the package. The
documents did not go through an appropriate international expert review either.
And finally, they became a complete surprise for journalistic associations that
have repeatedly and publicly stated they develop their own proposals on the
legislative changes in broadcasting and are ready to cooperate with the Government
and the Parliament in this issue.

On September 26 Yerevan Press Club, Journalists Union of Armenia, Internews
Media Support NGO, Committee to Protect Freedom of Expression and “Asparez”
Journalist’s Club of Gyumri made a joint statement, expressing their serious
concern over the situation and called on the National Assembly to hold public
debates before the package of draft laws on broadcasting is considered and passed.

“On September 25, 2006 a package of draft laws was submitted to the RA National
Assembly. The package contains draft laws dealing with broadcasting, including
the Draft Law “On Introducing Amendments and Additions to the RA Law ‘On Television
and Radio’”.

We, the representatives of journalistic associations, are concerned with the
following:

1. The Draft has been introduced into circulation in a rush, without consultations
with parties concerned – representatives of TV and radio companies and non-governmental
organizations.

2. The adoption of the Draft is motivated by the Resolution of the RA Government,
dated December 9, 2005. No other grounds are quoted for the content of the amendments,
and in essence, only Article 21 of the Draft can be justified by the demand
of Article 83.2 of the RA Constitution.

3. The Draft Law contains a number of disputable provisions that give rise
to serious concerns in terms of freedom of expression, and fair and objective
regulation of the broadcasting market.

In particular:

a) The mechanism, proposed for the regulation of the National Commission on
Television and Radio, in our opinion, does not solve the repeatedly raised problem
– that of the NCTR independence. We are positive that the mechanism proposed
cannot be considered the best possible option for the enactment of constitutional
amendments. The content of Article 21 of the Draft does not correspond to the
provision of Article 83.2 of the Constitution: until there is no specification
of the timeframes for the NCTR member replacement as well as the enactment deadline
of this constitutional provision, the members of the NCTR, appointed by the
RA President, retain the dominant position. Hence an attempt is made to delay
the enactment of the constitutional demand. Taking into account that the current
NCTR members were appointed by the RA President, we propose that NCTR be expanded
to 16 members, with 8 of them elected by the National Assembly. This would ultimately
ensure the provision for “50/50” appointment/election scheme, without violating
Clause 11 of Article 117 of the RA Constitution, saying: “The incumbent members
shall continue to remain in office until the expiry of their term of office
determined by the ‘Law on TV and Radio’.” This will at the same time set conditions
for the balanced operation of the NCTR.

b) Clause (c) of Article 16 of the Draft that abolishes Article 28 of the Broadcast
Law, in particular, the 5% limit of the commercial advertising in the total
broadcast volume as well as the ban on commercial advertising interruption of
the programs aired by Public TV and Radio Company, in our opinion, increasingly
commercializes the PTRC.

c) Part 2 of Article 25 of the Draft, according to which the National Commission
on Television and Radio, in case of a necessity, announces a broadcast licensing
competition for vacant (unoccupied) frequencies, as we believe, expands the
functions of the National Commission, which can result in unpredictable consequences.
How will the necessity be decided, and will it not become means for restricting
the market?

d) Part 1 of Article 28 of the Draft Law, in our opinion, runs contrary to
the demands of the Law in force (Article 50) and the Draft itself (Article 27).
The latter one records the obligation of the NCTR to “duly justify the resolutions
on the selection of the license holder, the refusal of a license and the invalidation
of the license”. In other words, the mere acknowledgement of a defeat cannot
be considered due justification. It is for this very reason that we think the
due justification must contain specific reasons (licensing criteria) and/or
the deficiencies of the bid.

4. The Draft Law does not take into account the demands of Recommendation (96)10/11
September 1996 on the guarantee of the independence of public service broadcasting
and Recommendation (2000)23/20 December 2000 on the independence and functions
of regulatory authorities for the broadcasting sector, made by the Council of
Europe Committee of Ministers, in particular the demand for independence of
regulatory bodies and their isolation from political influences. We also think
it characteristic that Article 31 of the Draft that refers to the application
of administrative penalties runs contrary to Clause 23 of the Recommendation
(2000)23 above, according to which “a range of sanctions which have to be prescribed
by law should be available, starting with a warning”. The Draft does not specify
the “warning” as an obligatory initial penalty.

The Draft does not cover the comments, made by the OSCE Representative on Freedom
of the Media Miklos Haraszti in his report on the state of media freedom in
Armenia of July 26, 2006, either. This refers in particular, to the following
comment: “As a first step to improve the state of broadcasting it is recommended
that legislative changes provided for by the Constitutional amendment should
be prepared by the Government, discussed in a public forum with members of civil
society, and passed in Parliament as soon as possible, certainly before the
Parliamentary elections in 2007. However, legislative changes should not be
limited to a ‘half Presidential – half Parliamentary’ board. The composition
of all boards should represent the political and social diversity of the country,
and should include NGOs and professional associations.”

We, the representatives of journalistic associations, appeal that the RA National
Assembly, prior to discussing and adopting the package of draft laws on broadcasting
as submitted by the Government, hold public forums, during which we are ready
to present our observations and proposals regarding the content of the amendments”,
the statement of five journalistic NGOs said.

On the same day this statement was read by MP Stepan Zakarian during the discussed
of the package above in the Parliament. At the discussion that continued on
September 27 other MPs spoke about the serious shortcomings of the amendments
proposed. Gegham Manukian, on behalf of “Dashnaktsutiun” faction, suggested
that the Government withdraw the draft and re-submit it after public consultations
and improvements.

It is also important to note that the deficiencies of the draft law package
are not confined to the provisions, listed in the statement by the journalistic
associations. There are many more disputable clauses in the document, and the
journalistic community is ready to present its proposals. It should also be
noted that the opinion of the journalistic community was neglected by the Government,
despite the repeated statements by the Ministry of Justice, that all the media-related
legislative initiatives will initially be discussed with the representatives
of professional organizations.

On September 27 at a meeting with the Armenia Co-Rapporteurs of the PACE Monitoring
Committee the RA Human Rights Defender Armen Harutiunian expressed his concern
with the fact that the public and state institutes were not made duly aware
of the draft amendments to the Law “On Television and Radio”, whereas this “has
fundamental significance for the democracy strengthening in the country”, the
web site of the ombudsman informs (www.ombuds.am).

On September 27, having exhausted the agenda, the extraordinary session finished
its work. The voting on the draft laws was postponed.