The Enabling Environment For Free and Independent Media
By Monroe E.
Price & Peter Krug
Chapter 3: Rule of Law
Much of this paper is about the kind of law that media enterprises will face in transition societies. But above all of this is something at least as important, a concept that is framed as the rule of law. Law can be either an instrument of unbridled public authority, or a mechanism that impedes the free exercise of arbitrary rule while at the same time providing the state the tools to pursue legitimate public objectives. As Neil Kritz has written,
The rule of law does not simply provide yet one more vehicle by which government can wield and abuse its awesome power; to the contrary, it establishes principles that constrain the power of government, oblige it to conduct itself according to a series of prescribed and publicly known rules.
1
The Organization for Security and Cooperation in Europe (OSCE) includes several requirements for the rule of law. The government has a duty to act in compliance with the constitution and the law. The military and police are accountable to civilian authorities. Legislation should be considered and adopted by transparent procedure. Administrative regulations must be published as the condition for their validity. Effective means of redress against administrative decisions and the provision of information to the person affected by the remedies, an independent judiciary, protection of the independence of legal practitioners, and detailed guarantees in the area of criminal procedure must be available. However, the OSCE emphasizes that the rule of law does not mean merely a formal legality that assures regularity and consistency in the achievement and enforcement of democratic order. There is also an element of justice based on the recognition and full acceptance of the supreme value of the human personality, guaranteed by institutions providing a framework for its fullest expression.2
The rule of law is independent of the nature of the specific substantive law, and even of specific institutional arrangements. In other words, the rule of law concept contains certain tenets that are essential components of an enabling environment for the development of effective, independent media, regardless of the substantive legal norms adopted in a legal system and regardless of the specific institutional structure within which those rules exist.
The goals of a legal system committed to the rule of law are predictability and fundamental fairness. Rule of law is therefore intrinsically linked to values associated with democracy and legality, and its focus is very much on process. As such, the rule of law, at a minimum, incorporates clarity and accessibility, legal norms, an administrative process of fairness, impartiality and objectivity, and judicial support.
The only legal rules available for enforcement are those that are adopted according to systematic procedures and are accessible to the public.
In an enabling environment, the generally applicable normative acts that govern the conduct of public authorities and private persons must be accessible and transparent. They must be promulgated according to established procedures, and be accessible to the public As to the first of these requirements, the only public bodies empowered to promulgate enforceable legal norms should be those to whom such authority is expressly and visibly delegated as part of the fundamental legal order. Then, secondly, only transparent provisions are eligible for enforcement by the administrative authorities. In legal systems not committed to the rule of law, the authorities may enforce non-transparent rules known only to themselves: in such circumstances, the predictability and fairness necessary for the free development of independent media are lacking.
On a practical level, this means that it is of great importance that those public bodies to whom legislative powers have been delegated be equipped with the necessary assistance and skills to develop coherent, clear legal rules. Thus, great attention should be devoted to the development of legislative drafting expertise.
In examining whether the rule of law exists in a particular society, in connection with the media, one can ask several key questions: How clear and accessible are the rules? How well supported are they administratively? How well are they supported judicially? These considerations are intrinsically linked to the notion of separation of powers: that state functions should be divided among the legislative (norm creation), executive and administrative (law execution and enforcement), and judicial (law interpretation and application), branches.
For example, a fundamental tenet of the rule of law is that the governmental institution that enacts a legal norm should not also be the branch that enforces it, since it is feared that it could not be impartial in the law’s execution. Thus, the legislature should not be permitted to engage in the execution of its laws. At the same time, the laws must bind the executive branch; they must apply them who at the same time cannot act except pursuant to the legal authority prescribed by the legislature. In both cases, there must be sufficient oversight, exercised with sufficient authority by an independent judiciary or some other independent institution, to insure the observance of these principles.
There are three main benchmarks for evaluating the language of media-related statutes in terms of the rule of law: simplicity and clarity, dissemination, and accessibility. Laws designed to foster media independence may hinder it by increasing the possibility of abuse if they are unclear, confusing, or contradictory. In the United States, this idea of simplicity and understandability is captured by the “void for vagueness” doctrine and, especially in speech related matters, clarity is considered to be essential for the proper operation of legislation. A statute that can be interpreted in a way that is “overbroad» presents special challenges in a free speech framework.
Dissemination and accessibility of a statute are essential. Rules that are not known to the community to be regulated are, almost by definition, not rules at all. They are merely tools that may allow the authorities to act in an arbitrary fashion. Draft legislative or administrative acts intended to serve as generally applicable legal norms should be made public to elicit comments from interested citizens and media organizations. Because judicial interpretations of the statute become, as it were, part of the law itself, the same principles that apply to notice of the rule should also apply to notice of the decision.
It is possible that these issues of dissemination and interpretation might be less important, in relation to other concerns, in societies where the scope of press-related regulation is limited. But in many transition societies, where there might be complex rules about matters such as ownership of an instrument of mass communication, the steps needed for registration, concentration or cross-ownership between radio and television, media coverage of political campaigns, and the circumstances in which liability will be imposed for defamation, disclosure of state secrets, or other violations of content requirements, these principles become more important.
Public administration must conform to legal norms and act only under their authority.
The administrative acts of public institutions must be grounded in a legal basis. The purpose of public administration is to facilitate the achievement of legislative objectives, and therefore it must operate pursuant to this fundamental principle of «legality.» Perhaps the gravest threat to the exercise of media freedoms comes not from bad laws, but from administrative acts that apply the laws arbitrarily or are completely outside the boundaries of the laws.
All laws are functions of the administration that enforces or supervises them. In many transitions, a licensing commission is established to determine who, among competitors, should gain the right to broadcast, but the principal operators of television signals seems to obtain the right through mechanisms outside the formal process. For an administrative system to work properly there must be a clear demarcation of responsibilities between agencies that have overlapping jurisdiction as well as coordination between them. For example, in many of the states of the former Soviet Union, a broadcaster had to obtain a license to broadcast and a permit from a telecommunications agency for the use of the assigned frequencies. Too often, these tasks were neither demarcated nor coordinated, and the result was arbitrary interference and inadequate support for broadcasting enterprises.
To be sure, effective broadcasters are businesses as well as instruments of speech, and often quite substantial businesses. They cannot function in an environment in which it is impossible to operate as an enterprise. All the laws regulating business must operate as smoothly as possible. If a special license is necessary for the opening of a foreign bank account, then such a license should be issued or denied based on the application of transparent and consistent criteria. Broadcasters and press enterprises depend on reliable rules concerning holdings in real estate. And, of course, as they become more successful, these entities depend on laws relating to the issuance of ownership shares, the development of credit, and the capacity to have secured interests or to insure that the parties with whom they deal are proper financial partners.
3.3 Administrative Process: Fairness, Impartiality, and Objectivity
The administrative process must be grounded in a commitment to fairness for all participants.
Rule of law precepts should permeate the fabric of governmental decision making. It is of course inherent in the nature of administrative decision making that it involves the exercise of discretion. However, this freedom must be restricted along basic tenets of fairness.
The process for licensing news media outlets such as radio or television broadcasters must be open, objective, and fair, with the authorities acting according to prescribed legal procedural standards and substantive criteria that are applied impartially to all participants in the process. Thus, if two applicants seek a single broadcast license, the authorities making this decision should be required to apply transparent standards to both applicants in an impartial fashion. These should include the opportunity to be heard.
An independent, effective judiciary is essential for the oversight required under the rule of law.
We shall see, for example in the material on access to information and content regulation, how important a role the judicial system can play in determining the meaning and impact of media laws. Here it is important to distinguish the rule of law role of the judiciary. The issue is whether there is an independent voice in the society to whom an aggrieved party can turn, especially to obtain review of acts of other branches of government. Of course, a judiciary that is merely another administrative branch of the government is insufficient, especially, if it lacks the willingness or jurisdiction to play a meaningful review function. Judges must be prepared to rule against the public authorities if they act improperly. They must enjoy job security: if they are easily removable, they cannot perform their functions impartially. There must also be a public perception that the courts operate in an impartial manner consistent with the rule of law.
Judicial systems can be evaluated for their impartiality and independence, both from government interference and financial vulnerability. In many transition societies, the relatively low salaries of judges can hinder judicial independence.
The judicial system can also be evaluated through the effectiveness of a decision reviewing (adversely) a government order. In many systems, the courts lack the authority to gain effective enforcement or observance of their decisions reversing illegal acts. A related indicator of the effective operation of the rule of law is the ability of a successful litigant to recover money damages that have been awarded in a court decision.
3.5 Case Study: The Absence of an Enabling Environment and the Rule of Law
One way of looking at the desiderata for an enabling environment is to look at its opposite: a context in which there was perceived, by the international community, to be a substantial need for change. For example, an Information Law was adopted in Serbia in October 1998. The law made it possible for media to be accused of slander, lies, and other offences. Moreover, the determination of whether a newspaper violated the law could be decided in quick and summary legal proceedings without elaborate due process. In the year after implementation, four independent papers and a dozen radio and TV stations in Serbia were closed. Many independent papers were required to pay fines, substantial compared to their assets and income. A report by the Serbian news agency Beta, suggested that “enormous penalties (ranging from 50,000 to 80,000 dinars) envisaged by the Information Law financially threaten almost all important independent print media.” In some cases, papers were denied the right to be sold on newsstands.
During the 1999 conflict with NATO, a number of Serbian papers were fined or closed for activities that were inconsistent with public policy on the war. The government argued that those who are not engaged in the “reconstruction of the country” were traitors.
The Information Ministry brought more than 50 legal actions against a printing house, ABC Glas, and against its director, Slavoljub Kacarevic, in lower courts in Belgrade. The ministry claimed that the printing office and its director violated the Information Law by printing a bulletin of the opposition Alliance for Change, and that the publication had not been registered. The court rejected defense arguments that the publication was not a registrable publication, but merely a party bulletin. In October 1999, the Serbian Vice-Premier Vojislav Seselj, leader of the Serbian Radical Party, charged the editor in chief of Belgrade-based Danas with violating the Information Law and tarnishing his reputation. The Danas trial lasted an hour, and the paper was fined 280,000 dinars (approximately 28,000 USD).
The Serbian example underscores the potential impact of harsh defamation and criminal libel laws, their potential for abuse in times of crisis or their misuse whenever government feels threatened.
___________
1 Neil J. Kritz, The Rule of Law in the Postconflict Phase: Building a Stable Peace, in Managing Global Chaos: Sources of and Responses to International Conflict 587, 588 (Chester A. Crocker et. al. eds., 1996); see also Richard H. Fallon, Jr., The “Rule of Law” as a Concept in Constitutional Discourse, 97 Columbia Law Review (1997) (discussing the various definitions of “rule of law”); John Reitz, Constitutionalism and the Rule of Law: Theoretical Perspectives, in Democratic Theory and Post-Communist Change 111 (Robert D. Grey ed., 1997).
2
Conference on Security and Cooperation in Europe, Document of the Copenhagen Meeting of the Conference on the Human Dimension, June 29, 1990, ¶¶ 2, 5.3, 5.6, 5.8, 5.10-5.12, 5.14-5.19, reprinted in 29 International Law Materials 1305, 1307-09 (1990).2000 ã.