THE UNACCOMPLISHED REFORM OR STRASBOURG IS HAPPY WITH US
The ratification of legislative amendments on television and radio as signed by the RA President on May 20, 2009, marked the completion of the formation of Armenian broadcast legislation – a process that had lasted for more than 12 years. One can state it responsibly that the practice of total control exercised by the power structures over the broadcast sphere received the complete legislative backing they wished so much, with the blessing of the Council of Europe experts and the parliamentary opposition.
Why is it we speak about a 12-year process? Because in March 1997 the first version of the draft law on television and radio went through the first hearing at the parliament. Having been criticized then by the journalistic associations, including Yerevan Press Club, as well as the representatives of the Council of Europe, foreign experts, this version was revoked. The three-year work on the draft that ensued did resemble a lot the situation of the past year: YPC, Internews and their partners were invited to debates, we were asked for ideas and proposals, yet only those of them were taken into account that did not impede the main goal – to eliminate every chance for the independence of the broadcast regulating bodies, to keep the uncontrolled TV and radio companies out of air.
Both at that stage and now the work on the drafts improved the appearance, yet the essence never changed. As a result, even with 50 TV channels available in the country, the Armenian public, political forces, experts, the TV viewers are extremely unhappy with what they see on the air. The lack of real pluralism, the violations of legal and ethical norms that receive no due response, the open manipulation of public opinion to the benefit of private interest, neglect of the cultural, education, information functions – these are the specifics of the present-day broadcasting, including the public service broadcasting.
The list of these vices, due, among other things, to the ineffective legislative framework, was expanded in September 2008 to include an innovation with a hilarious justification – a ban on broadcast licensing competitions. Thus, for two years’ time (and the authors of the idea obvious intend this period to become infinite) even the technical opportunity to get some competition in TV and radio industry is made impossible.
A radical broadcasting reform was necessary to get rid from this bunch of problems, its first step being the improvement of the legislative framework. Still the new package of amendments that came into force has not eradicated any of the issues constantly raised by the media community of Armenia and international organizations.
Firstly, the mechanisms prescribed by the amended legislation, by their definition cannot enhance the independence of the National Commission on Television and Radio (NCTR), the body that regulates the activities of TV and radio companies.
Secondly, the amendments enforced do not in any way contribute to the real reform of the Public TV and Radio Company, its inclusion into the legal regulation field, to the enactments of its responsibility and public accountability principles. In other words, Armenia to this day does not have a true public service broadcaster, the establishment of which was assumed as a commitment of the country to the Council of Europe.
Thirdly, the adopted package of draft laws does not solve the task of forming legal conditions for holding impartial and transparent broadcast licensing competitions. It does not contain any guarantees against the arbitrary decisions of the National Commission and does not call for a justification to be given by the members for the selection made.
Fourthly and finally, despite the growing and obvious weakness of arguments to support the moratorium on frequency distribution under an invented pretext of broadcast digitalization, the provision on freezing the competitions remains intact. This cannot be interpreted otherwise than as the reluctance of authorities to allow on air any broadcaster out of their political control, unreadiness to draw conclusions from the judgment of the European Court of Human Rights upon the suit of “Meltex” LLC (the founder of “A1+” TV company) of June 17, 2008, and to implement the Resolution 1620 (2008) of the Parliamentary Assembly of the Council of Europe.
The legislative amendments that do not entail the basic solution of the issues above can only be seen as cosmetic, as an imitation of reforms that do not in any way contribute to the improvement of the situation on the TV and radio air of Armenia. The coverage of municipal elections in Yerevan, held on May 31, 2009, confirmed that the main negative trends of the broadcasting are still in place, that the choir of TV voices obeys the will of one single conductor. Whatever the TV journalists did during this period – whether negative or positive – was prescribed from “above”. And if this time the Yerevan Press Club monitoring recorded a certain improvement in the coverage, as compared to the presidential elections of 2008, this does not in any way mean that in future the prescription from “above” will not change and the behavior pattern of broadcast media would not again deteriorate to the level of 2008 or even below than that.
The adoption of the new draft law package could have been viewed more calmly; after all, not everything is lost and the law can always be amended. Yet this is the very problem, there are no more incentives or commitments for the Armenian MPs to address the broadcasting legislation, and hardly any will come up in the nearest future. Today they are entitled to state that the long-lasting process of harmonizing this part of the legislation with the Constitution, amended in 2005, is more or less complete. The media-related provisions of the Main Law, strongly protested by the journalistic association at the time of their developments, did fulfill their mission, as intended by the authors: they became the convenient justification to limit the possibilities for forming the truly independent broadcast regulatory bodies. It did take the lawmakers of today a certain demagogical effort in interpreting the constitutional provisions to fully exclude the chance for having independent regulation. However, the amended Constitution is no longer a pretext to address the broadcast legislation, and the chances that the Government or the parliament will today revisit the principal issued of TV and radio regulation are nil today.
Another factor that induced the Armenian authorities to occasionally remember the legislative regulation of broadcasting were the commitments to the Council of Europe and the criticism coming from international organizations. However the authors of the new package of amendments managed to get the assessment from the Council of Europe expert that they have every reason to treat as positive. Therefore, the task can be considered as fulfilled and for the first time in the 12-year history of the Armenian broadcast law the members of Armenian parliament are free from their commitment to the CoE partners to think about new changes. Moreover, the positive assessment of the Council of Europe expert today plays the role of a certain shield from the criticism of other international and local organizations: Strasbourg is happy with us; the rest is of little importance!
The content of the assessment itself raises a number of issues, voiced, in particular, in the statement of journalistic organizations of April 9, 2009. The Council of Europe expert that reviewed the package of the draft laws on regulating the broadcasting, did not take into account the recommendations made in the PACE Resolutions 1532 (2007), 1609 (2008), 1620 (2008) and 1643 (2009). Referring to Armenia’s implementation of its commitments to the CoE and the functioning of democratic institutions in the country, these Resolutions define the current reform agenda, also in media. The recommendations raise the problems of independence of the regulatory body, the transparency of broadcast licensing competitions, the possible participation of “A1+” TV company in them, the moratorium on frequency distribution. While considering the package of the drafts without taking into account the four last PACE recommendations on Armenia, the Council of Europe expert, on the one hand, bypassed some questionable clauses of the legislation in force (firstly, the introduced ban on the frequency distribution), on the other, she assessed a whole range of legislative innovations out of the context of existing problems in the recent practice (lack of transparency and impartiality of broadcast licensing competitions, lack of any forms of accountability of the Public TV and Radio Company to the society, etc.).
The expert welcomes the amendments to Article 50 of the RA Law “On Television and Radio” that stipulates the provision of “full justification” of competition participants that were refused a license, referring to the appropriate clause in the judgment of the European Court of Human Rights of June 17, 2008 on “A1+” case. Yet in essence nothing new in terms of justifying the refusal of the license is proposed by the new draft, there are still no mechanisms top define the selection criteria for NCTR members.
One could quote many examples of the insufficiently profound analysis of the draft law package by the CoE expert. Yet the problem lies not in the particulars, but in the method through which the media legislation is formed in Armenia, and the role of international expert assessment in the process. Despite the fact that a working group has been established at the specialized Standing Committee of the RA National Assembly, involving local experts, the recent drafts were only discussed by this group twice, and only on the stages when the discussions could not have any significant influence on the content of the drafts. The first debate centered on general issues and was purely formal in nature, and the second one was summoned a few days before the second hearing of the package, when the authors were already adamant in their approach. In between international experts met and discussed the drafts only with the MPs interested in their advancement. Objections, comment, explanations of the problems regarding the practical implementation of a certain clause that representatives of Armenian media community could share, public debates are of no interest to anyone any more. Such a closed process of legislation formation can bear no other fruit than what we have today. In other words, the civil society institutes are deprive of any real chance to influence the principal decision-making in the legislation.
Participation in such imitations, membership in various boards and groups set up for the sake of appearances only has always been contrary to the principles of Yerevan Press Club, and, as it has already been stated, representatives of our organization will no longer participate in the working group on media legislation at the RA NA Standing Committee on Science, Education, Culture, Youth and Sport Issues. This decision can only be reconsidered in case of a dramatic change in the attitude that the Armenian MPs have to lawmaking.
Meanwhile, we so far observe a reverse process. Another proof of that is one of the earliest efforts to institutionalize the Public Council, formed recently by presidential decree, in the renewed broadcast legislation. Having given this structure, seen as nothing more but a showoff substitute for the civil society, a role in forming the broadcast regulatory bodies, the Armenian legislators made another step towards replacing the true democratic processes by the imitation.
Finally, the proactive and principled stance of the opposition – yet another factor (along with the political will of the authorities, competent involvement of international organizations, attention to the proposals of local NGOs and expert community) that could contribute to the healthy and constructive lawmaking, based on the competition of ideas and approaches – failed to work in the case of broadcast legislation amendments enforced in May 2009, either. How does the consensus of “Heritage” faction with the ruling coalition on the issue go hand in hand with its criticism of the situation in broadcasting and demands to get “A1+” TV company back on the air, remains a mystery.
The new opportunity to break down the blockade of Armenian air should apparently be expected only when those who could but did not wish to display principles at this stage of legislative reforms face new problems in broadcasting. And these, judging from the attitude towards the freedom of expression issues in Armenia, will hardly take long in coming…