On March 31, President Yeltsin vetoed the federal law "On a Higher Council for the Defense of Morality in Television and Radio Broadcasting in the Russian Federation." This was a complicated decision: on the one hand, the law received serious support from both houses of parliament; on the other, the essence of the proposals contained in the law, according to most experts, was anti-democratic.
The slogan "all power to the Soviets - over morality" didn't take hold.
What's the problem?
The law was passed by the State Duma and approved by the Federation Council in the middle of March. After that, many opponents of the law placed all their hopes on a presidential veto. However, in calling on the president to not sign the law, they used the same arguments as they had used during the law's discussion in parliament. In doing so, many forgot that arguments like "the law is harmful" or "it will give rise to political censorship" have meaning only for parliamentarians. The president, in deciding to veto the law, could not make his presumptions based exclusively on the law's practicability or subjective opinions about its harmfulness. The position of the absolute majority of the deputies of the State Duma and members of the Federation Council that voted for the creation of a higher council for the defense of morality could only be opposed with "iron" legal arguments. The best of those was the fundamental non-concurrence of the norms of the new law with acting legislation. The official position of the president and the motives for his disagreement with the law will probably be made public in the near future. The Moscow Media Law and Policy Center offers its point of view on some of the legal "landmines" hidden in the law.
What must the law comply with?
Most of all, any law must be in unerring compliance with the Constitution. The norms of the law "On a Higher Council" are very similar to certain articles of the Constitution. But to be similar and to be in accordance with are far from the same thing.
**The first lines of the law read: "The freedom of television broadcasting and radio broadcasting can be limited: with the aims of defending the morality, health, and the rights and legal interests of citizens." The Constitution says that it is possible to limit citizens in their actions only "with the aims of defending the morality, health, and the rights and legal interests of others." (Part 3 Article 55)
Willingly or unwillingly, the authors of the law permitted a little-noted, but fundamentally important "lapse." For a lawyer, the difference between the wordings of the Constitution and the law is obvious and has a very deep sense: the rule of the Constitution forbids citizens from doing only that which stifles the specific rights or legal interests of others; the wording of the law allows for limiting the rights of all citizens with the aim of defending their own morality. This means that, as in the not-too-distant past, the state (as represented by the Higher Council on Morality) receives the right to freely decide what comprises the "interests of citizens" and in accordance with this self-styled will to establish moral and ideological standards for television. If the houses of parliament override the president's veto, the seriousness of such a divergence from the democratic principles embodied in the Russian Constitution will definitely merit review by the Constitutional Court.
However, the Constitution is not the only normative act with which the approved law must be in accordance. Inasmuch as every new law is not created in a vacuum, but is built into a complicated system of acting legislation, it's very important that it not contain fundamental contradictions to key "contiguous" laws. In the present case, these laws are the law "On Mass Media," since TV and radio broadcasting are part of mass media, and the Code of Administrative Violations, since the law contains an article on the administrative liability of the broadcaster.
The Code of Administrative Violations has always been and remains the main document establishing the basic principles and procedure for administrative liability. True, in contrast to the Criminal Code, it allows other laws to establish concrete cases of such liability. Making use of this fact, the authors of the law included the article "Administrative Liability of the Broadcaster for Violation of Morality." This article is key to the law, as it is this very article that empowers the Higher Council to punish broadcasters. It's no accident that questions about the law are arising first and foremost in connection with this article.
The first contradiction is that the law stipulates the administrative liability of the broadcaster. All currently existing broadcasters in Russia are legal entities. The only subjects of liability mentioned in the acting Code of Administrative Violations are citizens or officials committing administrative violations. There are two reasons for this. The first is that administrative violations are committed not by incorporeal legal entities, but by their employees - officials, whom in this case it is necessary to punish. The second is that a legal entity cannot physically be held accountable - it cannot, for example, be put under administrative arrest or be forced to do correctional labor.
But even if the Code of Administrative Violations allowed for the imposition of fines on legal entities, this should never apply to broadcasters, as the law "On Mass Media" establishes that the liability for the contents of a program applies to the program's producers.
In the majority of cases, a broadcaster independently produces only a portion of the programs it airs. The rest are bought from various producers whose programs are registered with the Federal Television and Radio Broadcasting Service as independent mass media. The law "On Mass Media" guarantees that the producer "performs its activity on the basis of professional independence" (Article 19), and forbids anyone from hindering the process of producing a program. And an attempt to control the contents of every program before it was aired can be construed as just such a hindrance. If a program is shown live, control is simply impossible. Therefore, to demand from a broadcaster that it take responsibility for such a program is unfair.
What are the parameters of this liability?
In accordance with the same article of the law "On a Higher Council," the fine for a national broadcaster is established as an amount of "up to 50,000 minimum wages." Here again there is a direct and gross contradiction of the Code of Administrative Violations. The Code stipulates that "the fine is established within the parameters of one-tenth to 100 minimum wages." (Article 27) True, "in exceptional cases, in connection with fulfillment of obligations pursuant to international contracts and a particular necessity for strengthening of administrative liability," a fine can be of a somewhat higher amount. But to exceed this upper limit even by 20-30% would require that the legislator first explain the "exceptional nature" of the case, and second, refer to specific international agreements, the fulfillment of which requires such a "particular strengthening of administrative liability."
In our case, the upper limit of the fine introduced by the law "On a Higher Council" exceeds the cap set by the Code of Administrative violations by 50,000%. This cannot be legal, and even the fine imposed for crimes in accordance with the Criminal Code cannot exceed 1,000 minimum wages under any conditions. Thus, the authors of the law consider it normal when administrative punishment exceeds criminal punishment by a factor of fifty.
To illustrate the absurdity of such an "administrative" fine, one can apply the license taken by the authors to other punishments established by the Code of Administrative Violations, for example administrative arrest or correctional labor. In this case, a person appearing intoxicated in a public place, rather than serving 15 days in jail, could spend 20.5 years in prison, and a petty speculator could do 80 years of correctional labor instead of two months. No commentary is needed here.
The above examples are adequate for understanding that the law "On a Higher Council" so drastically contradicts the Code of Administrative Violations that the two acts cannot operate simultaneously.
To surmise that these and many other contradictory resolutions found their way into the law "On a Higher Council" accidentally is of course impossible, as the law was analyzed by many legal experts during its discussion in the Duma. The Moscow Media Law and Policy Center also pointed out the law's weak spots to its developers. Had they so desired, these errors would have undoubtedly been eliminated.
What then becomes of the Higher Council?
We propose that the fines for violations of morality amount not to millions, but to a few hundred or thousand rubles, and fall not directly to the broadcaster, but to the producers of the "immoral" programs. In this case, the fined producers will not be bankrupted, and if they are, viewers lose only a program they know, while the broadcaster is not replaced and the channel remains the same.
Then the Higher Council will be transformed from a potent body able to freely, over the course of a few days, decide the fate of any national broadcaster (which means practically unlimited political influence for the members of such a body) into an ordinary state institution. And its function will be extremely limited and unattractive for its members: to assist the Federal Television and Radio Broadcasting Service, the General Prosecutor, the Judicial Chamber on Informational Disputes, etc. to "rake" through numerous conflicts and take responsibility for the "immorality" of Russian television.
But by all appearances, this is not what the framers of the law were aspiring to.