Institute for War and Peace Reporting | Giving Voice, Driving Change

Media Law Wrangling Leaves Journalists in Limbo

Tensions between government and parliament over control of press holding up controversial new media legislation.
By IWPR-trained journalists
Few legal issues in Afghanistan’s chaotic recent past have caused so much fuss as the still-unpublished media law, which has gone through at least three major revisions in the past seven years, with the latest version seemingly far from becoming a reality.

The central issue appears to be control of the state-run media. The new legislation would take television and radio out from under the government’s wing, but officials are reluctant to let go, especially with presidential elections looming.

While government and parliament battle over the issue, Afghanistan’s journalists are working in a legal no-man’s land, unsure whether to follow the now-outdated strictures of the 2006 law, or to adapt to the new one, which has been approved by legislators, but has yet to become official. Until its official publication, the law cannot be implemented, and the government is dragging its heels over this.

The dispute has been gathering steam for nearly two years. An earlier version of the legislation was sent back to parliament by President Hamed Karzai after its initial ratification by the parliament in May, 2007. This constitutes a de facto veto, which requires a two-thirds majority to overcome. In September, 2008, parliament again ratified the media law, with enough votes to override Karzai’s objections. According to the constitution, the law then technically comes into force.

But procedurally things are not so simple. The law has to be sent to the parliamentary affairs ministry, which forwards it to the justice ministry for publication. The president must give the order for the legislation to be published, which he still has not done. Parliament, meanwhile, insists that the law has passed, but officials counter that, until it is published, it is not enforceable.

The government has opposed the legislation almost since its inception. Minister of Information and Culture Karim Khoram has repeatedly accused parliament of buckling to foreign pressure.

“The media law has been approved under the influence of foreigners,” he told a parliamentary commission on religion and culture in December, 2008.

Khoram has some very specific bones to pick with the media law, namely loss of government control over Afghan National Television; the establishment of a press watchdog called the Supreme Council for the Media; and the granting of television licenses to stations backed by political parties.

Of these, the loss of control over the broadcast media was undoubtedly the biggest blow. “Foreigners have conspired to shut the government’s mouth,” he told parliament.

The Supreme Council for the Media is also a problem, according to Khoram.

The council – which will be made up of members of parliament, government, newspapers and human rights and civil society organisations – is to play a number of roles, including proposing members of a commission on media violations and putting forward journalists for national television and the state news agency, Bakhtar.

Khoram argues that there’s no limit on the membership of the council, warning that its work will be delayed if there are too many. He also objects to a provision in the legislation that allows for political parties to establish media outlets.

With Afghanistan facing presidential election in August 2009, control of the airwaves will become an increasingly sensitive issue over the coming months.

“If, during the elections, one party has a TV channel and the others do not, it will be a form of injustice,” he told the parliamentary commission.

Parliament rejected Khoram’s criticisms, saying that the media law was now law in the country.

Hajji Mohammad Mohaqeq, head of the commission on religion and culture, told IWPR that no government institution had the right to oppose a law approved by parliament.

“The president vetoed the law in the first instance but his reasons were not justified,” he said. “So we approved it for the second time and according to article 94 of the constitution, it is a legally implemented law. The government does not have the right to withhold publication.”

The law, he added, had been duly considered. “We ratified the media law after a review of other laws in the country, a review of laws in countries with democratic backgrounds and after consultation with national and international experts,” he maintained.

Parliamentarian Mawlawi Din Mohammad Azimi agreed.

“We think that this media law is a good and beneficial one for the people of Afghanistan,” he said. “It is comprehensive and prominent people were involved in drafting it.”

According to the justice ministry, the law has been delayed in order to clarify some issues within it.

“The government has found out that there are conflicts in [it] so it has to go to the supreme court for review,” said Sayed Yusuf Halim, head of the legal interpretation department at the justice ministry. According, to article 121 of the constitution, upon the government’s request, the supreme court can review how a proposed law complies with the constitution, international treaties and conventions.

Among points needing clarification, Halim cited the make-up of the Supreme Council for the Media.

“Members of parliaments can be members of the council, but they also have a supervisory role,” Halim said. “They should not be allowed to interfere in operational issues. If they commit violations, who will supervise them?”

While bitter wrangling over details holds up the implementation of the law, media observers worry that Afghanistan’s fragile democracy will be the loser.

“Opposition to the publication of the media law is an attack on freedom of speech,” said Faheem Dashti, spokesperson for Afghanistan National Association of Newspapers. “If the situation persists, it will result in a catastrophe.”

Dashti, who was part of a body that advised the parliament on the drafting of the legislation, denied that there was a heavy foreign influence.

“We established a group called ‘the media law group’ to prepare recommendations from a professional perspective and present them to the parliament,” he said. “UNESCO was the only body that helped us and there were no other foreigners involved. We even approached a number of the embassies, like the Germans, for assistance but they did not help us. So what does ‘interference of the foreigners’ mean?”

Dashti called the new law comprehensive and beneficial, and added that the government was just trying to cover up its own failures.

“The media criticised the government when it made mistakes so the government started to undermine the media,” he said. “It started to meddle with the law.”

Afghanistan’s media has been one of the few unquestioned success stories of the post-Taleban era. Where once the airwaves were empty of anything except the Voice of Sharia, there are now dozens of new radio and television stations, as well as numerous print publications. All enjoy a remarkable degree of freedom to comment on political matters, although professionalism sometimes lags behind.

Certain taboos, such as religion, do exist, and the Ulema, or Council of Religious Scholars, has been exerting a growing and, many believe, worrying influence over content.

But in general the media is a force to be reckoned with in Afghanistan, and the government, said Dashti, was chafing under its scrutiny.

“The government did not want to see the media empowered, and able to exert influence,” he said, “so it began to try and limit the media.”

Once the law is published, the national television will be out from under the government’s control, Dashti pointed out, so the information ministry is opposing it.

Also, the Supreme Council for the Media will help protect journalists and will push back the limits of free speech in the country, he added.

Fazel Rahman Orya, a political commentator for Shamshad TV, points to the upcoming presidential elections as one of the main reasons for the current deadlock.

“Powerful people exist in all governmental and non-governmental institutions and want to create a vacuum in the field of media at a very important time when the elections are coming,” said Orya. “They are therefore creating a censorship environment so that no media can criticise their past deeds, and so they can continue to oppress the people.

“If the situation persists, censorship and self-censorship will continue, pressure will increase, and no media can act against a candidate who happens to be a criminal.”

Reporters, in the meantime, have no idea which law now governs their activities.

“I am worried as to which law I should follow,” said Fahim Hamdard, a Mazar-based reporter for national Noor TV. “I am very careful for the time being because I do not want to face problems. Currently, there are two laws and no law at all.”

The journalists who reported this story have asked that their names be withheld for security reasons.

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