ARM-2007-1-002
a) Armenia / b) Constitutional Court / c) Plenary / d) 16-02-2007 / e) DCC-678 / f) On the compliance of the last sentences of Article 35.3 and 35.4, Article 49.e.2, the last sentence of Article 112.4 and 112.5 of the RA Law on Rules of Procedure of the National Assembly of the Republic of Armenia with the Constitution of the Republic of Armenia / g) Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
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Sources - Categories - Case-law - International case-law - European Court of Human Rights. |
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General Principles - Democracy. |
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Institutions - Legislative bodies - Powers. |
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Fundamental Rights - Civil and political rights - Freedom of expression. |
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Fundamental Rights - Civil and political rights - Rights in respect of the audiovisual media and other means of mass communication. |
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Fundamental Rights - Civil and political rights - Right to information. |
Keywords of the alphabetical index:
Media, television / Media, broadcasting, public broadcasting company / Parliament, power, nature / Parliament, session, broadcasting, obligatory.
Headnotes:
The Constitution contains exhaustive provision for decision-making powers on the part of the National Assembly, in terms of its relationships with other bodies. The phrase "issues of organising its activities" cannot and must not allow the Assembly to impose obligations on the Public Television and Radio Company, or to relieve it of them.
Summary:
I. The President of the Republic requested a review of the compliance with the Constitution of various provisions set out in the Law on the Rules of Procedure of the National Assembly. He suggested that these provisions were out of line with the Constitution, as they did not fully guarantee the independence of the Public Broadcaster. Under the Constitution, the state must guarantee the existence and activities of an independent public radio and television service offering a variety of informational, cultural and entertaining programmes.
The President emphasised that Article 62 of the Constitution requires the powers of the National Assembly to be defined by the Constitution. As a result, the National Assembly has no constitutional power to make a binding decision requiring the broadcast of its sessions by the Public TV and Radio Company, whether live or recorded. Moreover, Article 62 of the Constitution clearly defines the scope of issues to be regulated by the Law on Rules of Procedure of the National Assembly. The Rules of Procedure shall define the procedures of the activities of the National Assembly and its bodies. No other relationships are to be regulated by the Rules of Procedure.
The President observed that the independence of the Public Broadcaster is largely based on editorial independence, including the freedom to define programme policy and schedule. It is also based on the prohibition of state and political influence over these processes.
The respondent explained that Constitutional Amendments in this area required certain changes to the law, aimed at harmonising the provisions of the Law on Rules of Procedure of the National Assembly and the regulations on public telecommunications with the Constitutional Amendments and with the international obligations of the Republic of Armenia.
The respondent also emphasised that guaranteed publicity of the activities of the National Assembly is a democratic achievement and should not be abolished. The Assembly did not define in legislation the dates and times for the broadcasting of its sessions, but it did have the power to make decisions on the time of the broadcast and how much should be included.
The respondent contended that the freedom of this particular section of the media ought not to be absolute, as this would collide with other parties' absolute rights in this sphere, which would result in conflicts of interest. The right of the public to receive information and opinions through the auspices of the Public TV and Radio Company is not absolute; certain restrictions apply, for the purposes set out in Article 43 of the Constitution. Article 27.3 of the Constitution guarantees freedom of media and broadcast, but this has to be viewed against the right of every individual to receive information on the coverage of Parliament's activities.
II. The Constitutional Court noted that Article 27 of the Constitution on the one hand guarantees universal right to freedom of speech, and on the other hand attaches importance to the freedom of mass media and other means of information as a guarantee for the fulfilment of these rights. It drew particular attention to the sentence "The state shall guarantee the existence and activities of an independent and public radio and television service offering a variety of informational, cultural and entertaining programmes".
The Court emphasised that the freedom of mass media in particular implies independence and freedom to define programming policy, content and direction, as well as the exclusion of state or political influence over those processes. For these reasons, and also to meet Armenian international obligations, amendments to the Constitution introduced the regulation of mass media as a Constitutional Function. Article 83.2 of the Constitution states that "To ensure the goals of freedom, independence and plurality of broadcasting media, an independent regulatory body shall be established by the law..."
Article 27 of the Constitution and Recommendation R(96)10 on the Guarantee of the Independence of Public Service Broadcasting of the Committee of Ministers of the Council of Europe covers the issue of freedom of information and freedom of public broadcasting. Recommendation R(96)10 emphasises the importance of freedom of mass media within a democratic society. It recommends that Council of Europe member states put in place legislation, to secure the independence of public broadcasting. The independence of public service broadcasters is crucial. State funding should not prejudice their independence in programming matters.
The Constitutional Court also drew attention to the approach adopted by Recommendation 1641 (2004) 1 of the Parliamentary Assembly of the Council of Europe. This recommendation draws a distinction between public service broadcasting and broadcasting for purely commercial or political reasons, due to public service broadcasting's specific remit, to operate independently of those holding economic and political power.
The Court emphasised the legal status of public television in Armenia, which is stipulated by Article 28 of the Law on Television and Radio Broadcasting. This defines the public television service as a state enterprise with a special status, provided by the State in order to guarantee the constitutional rights of people to receive political economic, educational, cultural, children's, teenagers', scientific, Armenian language and history, sport, entertainment and other popular information. Clearly, this provision is aimed at ensuring the rights of the individual to receive information freely and the means of achieving this purpose is to endow a television and radio company with a special status. The Constitutional Court noted, however, that the above law was enacted on 9 October 2000 and the National Assembly has not yet brought its provisions into compliance with the requirements of the Constitutional Amendments.
The Constitutional Court pointed out that the issue of the constitutionality of the disputed provisions is not connected with either the public significance of the object of legal regulation or with the expedience of broadcasting as such - the importance of these is not argued - it is rather connected with the legitimacy of regulation of legal relations between different entities. The legislature has, in this instance, interpreted the term "issues of organising its activities" - stipulated by part 1 of Article 62 of the Constitution - with the help of a provision of a law. If this interpretation is scrutinised in the light of Article 5, Article 6 Part 2, and Article 62 of the Constitution, it is demonstrably not legitimate, as the National Assembly's decision-making powers in terms of its relationships with other bodies is covered exhaustively in the Constitution. The phrase "issues of organising its activities" cannot and must not allow it to impose obligations on the Public Television and Radio Company, or to relieve it of them.
The Constitutional Court noted the special role of the legislature within the democratic development of every country. The culture of parliamentarianism is one of civilised pluralism and dialogue, manifested when governance is exercised through representative bodies. Approaches towards the regulation of social relations and the legislature's open and public implementation of its supervisory powers are vital guarantees for the establishment of the civil society. However, the European Court of Human Rights has emphasised several times that the activities of the authorities in democratic systems must be open to public scrutiny.
Over the past fifteen years, transparency of the legislature has also been established as a stable tradition of the Republic of Armenia. Guaranteeing such wide transparency is a principle of a democratic state under the rule of law, and shall be provided for on legal and organisational grounds. These grounds must be legitimate and in line with the doctrine of separation of powers. They must not violate the requirement for functional and structural independence of Constitutional institutions. Meanwhile, amendments to the Armenian Constitution set out new requirements for guaranteeing the freedom and independence of mass media. The National Assembly must now comply with them, by bringing its media legislation in line with the Constitution. The relevant laws are the Law on Television and Radio, adopted on 9 October 2000, the Law on Mass Information, adopted on 13 December 2003, the Law on Rules of Procedure of the National Assembly and relevant provisions within other legislation.
The Constitutional Court stated that the establishment of public service television and radio was not yet sufficient, under Armenia's international obligations. The issue needs swift resolution, as the problem is not fully solved by constitutional review of this or the other provisions. International practice shows that the way forward is to provide maximum publicity to parliamentary activities, whilst carefully preserving the independence of the media. It is up to the legislature to determine the way to achieve this.
Armenian.