asiaNet Human Rights
The media law, whose passage was a condition for accession to the Council of Europe, enshrines the abolition of state censorship. This is a welcome step that the government already enacted on August 6, 1998. But individual provisions of the new law allow the government to regain most of that ceded ground in a step-by-step fashion. Taken together, the law imposes severe limitations on journalists' ability to work independently, or in a manner that is free of risk from retribution.
As with the draft law on the legal profession, the law on the media institutionalizes accreditation and due process rights as the government's principal mechanisms of control. For example, the registration of existing media and issuance of broadcast licenses have both been moved to the discretion of reliably pro-executive bodies: respectively, the notoriously politically corrupt Ministry of Justice and a new agency, not yet created, which will be part of the executive branch itself. (Previously the Ministry of Press and Information was vested with the authority to register media.) With these changes, media that have criticized the policies of the president or others in the ruling circles in the past are likely to continue to remain financially weak and technically "illegal" for lack of registration. Conversely, the new provision that government agencies may now select which journalists may cover government-sponsored news events virtually assures uniformly favorable coverage while at the same time rewarding journalists for pro-government slants and discouraging critics.
The new law also strips journalists of fundamental rights that other laws, such as the Azerbaijani constitution, guarantee them. For example, it denies broadcasters the right to appeal decisions in court. At the same time, the law expands the legal liability of journalists. Government officials may now penalize a journalist for transgressing the invisible boundary that defines "the honor and dignity of the state and the Azerbaijani people," rather than the traditional, and more explicit, protections enshrined in slander or libel laws.
The risks of implementation are real, not theoretical. For the past several years, journalists have suffered civil and criminal prosecution and punishment. Various media outlets have faced heavy fines in Azerbaijan for alleged libel of ruling officials and their relatives. The marred recent elections offer incentive for the government to air-brush events, which it is in a better position to do since the enactment of the new legislation. Azerbaijani courts and law-enforcement, often susceptible to pressure from the executive branch, are likely to implement the new law actively. Now, broadcasters will have to accept the courts' decisions silently; they no longer have legal recourse.
The abolition of censorship, if enforced, is unquestionably an important reform. But it is arguably more effective for a government to silence criticism in the media by implementing the heavy-handed penalties, rather than relying on censorship, firing outspoken journalists, or banning opposition media. These individual setbacks to free speech, taken together, may render censorship functionally unnecessary.
Clearly, it is harder to undo the damage of laws after they are already enacted. Removing the offending provisions of the new law on the media; revoking Article 188-6/2 of the Criminal Code, which gives special protection to the "honor and dignity" of the president over those of other citizens; and decriminalizing libel are essential first steps, however. The Council of Europe can and should insure these reforms before proceeding with accession for Azerbaijan. If it does not, the Council's well-founded, public concerns about Azerbaijan's current inadequate compliance with European human rights standards will never be covered in the Azerbaijani media. No journalist would dare.
Erika Dailey is an editorial consultant
to the Central Eurasia Project, covering human rights-related
issues in the Transcaucasus and Central Asia. Between 1992
and 1998, Ms. Dailey worked as a researcher and human rights
advocate for Human Rights Watch, based in New York and Moscow,
covering principally the Caucasus, Central Asia, and the Russian
Federation. Since 1998, Dailey has worked as a human rights
advocate for Human Rights Watch, the International League
for Human Rights, and the Lawyers Committee for Human Rights.
She has a BA in Slavic Studies from Princeton (1986) and an
MA in Central Asian Studies from Columbia (1991). She has
lived in and traveled to the Caucasus and Central Asia regularly