On September 1, 2005 the National Assembly of Armenia passed in the second hearing the draft amendments to the RA Constitution. Article 83.2 of the draft says: “In order to ensure freedom, independence and plurality of the broadcast media by law an independent body is established, half of the members of which is elected by the National Assembly, and the other half is appointed by the President of the Republic for six years. The National Assembly elects the members of this body by a majority of total number of votes.”
This provision is quite compliant with the recommendations in the Final Opinion on the Constitutional Reform in the Republic of Armenia by the Council of Europe Venice Commission. With regard to this document, seven Armenian journalistic associations (Yerevan Press Club, Journalists Union of Armenia, Internews Armenia, Committee to Protect Freedom of Expression, "Investigative Journalists", "TEAM" Research Center and "Asparez" Journalist’s Club of Gyumri) released a statement on July 27. (It should be noted that the first statement of these organizations on the amendments to the RA Constitution was adopted on July 13 – see YPC Weekly Newsletter, July 8-14, 2005.)
The document says:
"On July 13 this year a group of journalistic associations of Armenia released a statement that presented a number of proposals on certain clauses of the draft amendments to the RA Constitution, previously submitted to the consideration of the Venice Commission. In particular, it was highlighted in the statement that the draft contained a provision, according to which the members of the authority, regulating the electronic media, are appointed by the RA National Assembly upon the nomination by the RA President. Further in the statement it was mentioned that according to the RA Law “On Television and Radio”, there were two such bodies – the Council of Public Television and Radio Company and the National Commission on Television and Radio. Therefore, the provision must have referred not to one authority, but to authorities, particularly since various CE documents mention “media regulatory authorities“. The authors of the statement also stressed: “It would be more reasonable and effective that the National Assembly, as a representative institution that expresses the interests of various groups of society, nominate the members of the regulatory bodies, and the President, as the constitutional guarantee and the head of state, make the appointment. This will ensure the active involvement of various power branches and of the public in the formation of these bodies.”
We are unaware what the attitude of the Armenian authorities towards the statement was. At the same time, we received a response from the Venice Commission to the effect that our proposals will be studied in the course of developing the Final Opinion on the Constitutional Reform in the Republic of Armenia. In the Draft Final Opinion, sent from Strasbourg on July 21, it is actually proposed to change the provision on the appointment of the regulatory body for broadcasting (National Commission on Television and Radio): instead of what was prescribed by the authorities (appointment by the RA National Assembly on the nomination by the President), the Venice Commission proposes the appointment of the 1/2 members by the President and of 1/2 – by the National Assembly. As to the Council of the Public Televisions and Radio Company, the document only notes that its formation by the President has been seen as problematic, however, no specific proposals are made in the context of constitutional amendments. Nothing is said about our proposal to include a provision that would prohibit any form of censorship in the Constitution, either.
We believe that the recommendations of the Venice Commission with regard to media freedom, independence and diversity are deficient and fail to provide the necessary guarantees for freedom of expression in Armenia. In the commitments that Armenia assumed to the Council of Europe with regard to media, the primary issue was the transformation of the state broadcasting into public. At different stages when the commitment implementation was discussed, the exhaustive description of the competence of the Parliament in the Constitution was quoted as an excuse for the appointment of the Council of Public TV and Radio Company by the President, as it excludes the participation of the Parliament in the formation of the body above. Further, in numerous documents on constitutional reform in Armenia released by PACE and Venice Commission it was mentioned that the involvement of the Parliament in the formation of the two regulatory authorities for broadcasting – the National Commission on Television and Radio and the Council of Public Television and Radio Company was necessary. However, both in the draft amendments to the Constitution, and in the Draft Final Opinion of the Venice Commission on the Constitutional Reform in the Republic of Armenia a reference is made to only one authority, the NCTR, while the public service broadcasting, which was the immediate subject of Armenia’s commitments to the CE, is not mentioned at all.
This inconsistency and the essence of such deficient proposals in the text of the draft amendments to the Constitution are perplexing for us. A constitutional provision can be of significance if it conveys certain values, principles and guarantees. The equipotent participation of the President and the Parliament in the appointment of the NCTR does not add anything of substance to the guarantees of independence for this body, and the Council of Public TV and Radio Company, as mentioned above, is completely neglected. Moreover, the constitutional stipulation of the fundamental, yet quite imperfect mechanisms for the formation of this body restricts the possibilities for developing adequate procedures in specific legal acts and their further improvement.
Based on the arguments above we call on the RA National Assembly deputies to either accept our previous proposal or to develop general provisions that would ensure the involvement of the Parliament in the formation of various independent bodies, regulating the spheres of public importance (including the NCTR and CPTRC), or else to simply remove from the draft amendments to the Constitution any clause defining specific mechanisms for the formation of a specific body (NCTR). We also propose that the issues of appointing regulatory bodies for broadcasting be solved by a radical reformation of the RA Law “On Television and Radio”.
We also continue to insist on the need to include a provision in the draft amendments to the Constitution, prohibiting any form of censorship, also – concealed."
A statement on the draft constitutional amendments regarding media was made on July 28 by the RA Human Rights Defender Larisa Alaverdian. In particular, in the opinion of Armenian ombudsman, “the RA Constitution must record the provisions referring to at least two bodies", regulating the broadcasting – the National Commission on Television and Radio and the Council of Public TV and Radio Company. The most optimal of the existing options for forming these bodies, as Larisa Alaverdian believes, is the nominations of the candidacies for the NCTR and CPTRC by the Parliament with the subsequent approval of the head of the state. “The new composition of the regulatory bodies must be formed immediately after the adoption of the draft constitutional amendments”, the RA Human Rights Defender noted in her statement.
Yet the NA deputies who took part in the discussion of the amendments and the voting did not take into account the opinions of the representatives of journalistic community and the ombudsman.
YPC Comment: The opinions voiced in the statements can only be expanded to say that there remain many substantial issues concerning the draft amendments on media. 1) What independent body specifically must be formed according to Article 83.2 , and what should its mission be? Nearly all the documents of the Council of Europe speak about “media regulating body/ies”, however, the Armenian law-makers chose to omit this clarification; 2) Why were the authors of the constitutional reform so rigid in defending the idea of forming only one independent body? Either they suppose that the public broadcasting does not need such body at all, or that the same body will be regulating the activities of public and private companies. If the former is true, this decision is contradicting Armenia’s commitments to the Council of Europe about the transformation of state broadcasting into public, since the existence of an independent regulatory body is crucial for public TV and radio. If the latter is true, they intend to change the whole model of broadcasting regulation, stipulated by the RA Law “On Television and Radio”. While it is possible to change the model, and maybe even desirable to do so, one must first of all realize what is being changed into what. In this regard it is still a mystery where, when and by whom was the need for the change discussed? During the past 8 years the Armenian broadcasting legislation was the subject for discussion at dozens, if not hundreds, international and local forums, conferences, seminars, meetings. There the most various ideas on improving the mechanism for the formation of broadcast regulatory bodies were voiced. Yet at none of these discussions was the issue of “merging” the Council of Public TV and Radio Company and the National Commission on Television and Radio. In the course of the numerous discussions of the draft amendments to the RA Constitution, held right before the second hearing of the Parliament, the “fathers of the constitutional reform” failed to articulately explain, how the changes proposed would ensure “freedom, independence and plurality of broadcasting media”. The whole this situation raises involuntary suspicions that once more the vague approaches, reflected in the document, will be used not in favor but against the freedom of expression.
According to the “Final and Transitional Provisions” (Chapter 9) of the draft constitutional amendments, the Parliament must bring the whole legislation in compliance with the renewed Main Law within a year. Considering that for the media part the constitutional reform creates controversy and confusion, even now one can imagine how painful the process of amending the broadcast law will be. And this time the underdeveloped (intentionally or not) provisions will restrict and frustrate not only the Armenian legislators, but also the Council of Europe, which has actually approved the amendments. For if the Constitution in force was adopted in 1995 with no involvement of the Venice Commission and the latter could link the legislative reforms to the need of revising the Main Law (this referred to the separation of powers, the status of Yerevan, the ombudsman institute and the development of public broadcasting), after the amendments are adopted they will have to be accepted and the problems will have to be solved with what is at hand. The analysis, comments and proposals on media-related amendments, given in the statements of journalistic associations and RA Human Rights Defender, show that the real implementation of Armenia’s commitments to the Council of Europe in this sphere can stumble against new obstacles – certainly, if no solutions are found between the second and third hearing on the constitutional reform draft. Yet, everyone understands that it is much harder to find such solutions now that during the two years allocated to the work on the document after the failed referendum on the Constitution in 2003.