Uzstāšanās konferencē "Elektroniskie sabiedrības saziņas līdzekļi un sabiedrības integrācija" 2002. gada 22. novembrī
Elektronisko mediju regulatoru izveidošanas principi Eiropā
My topic is the composition of broadcasting regulatory bodies in Europe.
Let me start with a definition of a regulatory body, which you can find on an interesting website of the South-East European Network of association of private broadcasters:
“The principle meaning of an independent regulatory authority is that the regulator is independent from those it regulates, protected from direct political influence, and given the full ability to regulate the market by making policy and enforcement decisions.”
The experience of Eastern European countries proves that it’s hard for regulatory bodies to be free from political influence.
I have looked at laws on broadcasting of about 20 European countries and will take the risk to define several principles of the composition of the regulatory bodies.
The first principle is sharing the right to elect members between parliament and president.
In Bulgaria, the National Radio and Television Council shall be composed of 9 members, of whom 5 shall be elected by the National Assembly (Parliament) and 4 shall be appointed by the President of the Republic. Similarly in the legislation of Poland, the National Council shall consist of 9 members, of whom 6 shall be appointed by parliament and 3 by the President.
In Ukraine, the National Council on Television and Radio consists of eight members. 4 – are appointed by the President of the Supreme Soviet, and 4 – by the President of the Republic.
Apparently, this principle couldn’t be applicable in the Latvian case. Comparing, for example, with Lithuanian Constitution, stating that the President can appoint or dismiss state officers, according to the established procedure, our Constitution does not contain such presidential duties. On the other hand, our president enjoys a very high level of esteem in society, her decisions are perceived as not politically biased. Unfortunately, it seems impossible to amend the Constitution and establish the right of president to appoint such officials as members of the Council.
The second principle is more complicated and includes president, parliament and prominent NGOs as institutions electing members of the Council. In neighboring Lithuania among 12 members of the Council four council members shall be appointed by the President. Four members shall be elected by the Seimas, moreover, there is a provision that two members shall be elected from candidates of opposition parliamentary groups!). Four NGOs shall appoint four members as their own representatives (one each) and these NGOs are the Lithuanian Science Council, the Education Council, the Creative Artists Association and the Lithuanian Bishops’ Conference.
In Romania the rights to elect and appoint members of the Council is also shared among three powers: 2 – appointed by the president, 6 – by Parliament, and 3 experts in telecommunication, broadcasting, television by the Government.
This principle ensures the highest degree of sharing of power, but in Latvia, again, it would be impeded by the already mentioned limited presidential duties in our Constitution.
The third principle can be defined as seeking a political balance. For example, in Estonia, the Riigikogu (parliament) shall appoint five members of the Broadcasting council from the members of the parliament on the proposal of the parliamentarian Cultural Affairs Committee. It is specially provided in the law that appointment has to be done on the basis of the principle of political balance. I’ve already mentioned Lithuanian law, which includes opposition parliamentary groups responsible for the nomination of two members of the Council.
Another example, we find in Greece, where political parties nominate Council members in the following order: majority party - four members; the next two strongest parties nominate four members: the first opposition party – two and the second also two members, the strength of political parties is determined by their electoral result. The Chairman of the Parliament nominates the President of the Council. Until recently, the Turkish Radio and Television Supreme Council was composed of nine members, all of whom were parliamentary appointees. Five members were selected from a list of candidates proposed by the parties comprising the government and the remaining four from a list proposed by opposition parties.
In Hungary, the regulatory authority known as the National Radio and Television Commission (ORTT) must comprise at least five members, each of whom is elected by a simple majority of all members of parliament. All other members are nominated by parliamentary groupings (one member per grouping). If the opposition is composed of only one such grouping, it will be entitled to nominate two members.
Once elected to the ORTT, statutory provisions designed to avoid potential conflicts of interest restrict members’ activities. It means that members are not permitted to become involved in party political activity, or to make a party political statement.
Hungary is an example on how seriously society treats the issue of such public institutions like media regulatory bodies. Public dissatisfaction at the present structures and functioning of the ORTT can be seen from the fact that a public demonstration, involving an estimated 6,000 people, took place in Budapest in 2000. The purpose of the demonstration, which was organized jointly by the Socialist Party, various trade unions, NGOs and political activists, was to demand an independent supervisory board for the broadcast media.
It might appear that political balance in Latvia is already ensured by Article 42 of the Law, which states that not more than three members of the Council may be from the same political organisation (party). I think, however, that in the case of Latvia, genuine political balance in the Council should be sought by inclusion of representatives from national minorities. Traditionally, national minorities’ interests are represented by the faction “For Human rights in United Latvia”, which has been virtually excluded from decision making. And now, in a new political reality, it is not so easy to implement any mechanism that would promote the interest of national minorities. If we imagine the principle of proportionality implemented after recent elections, the faction representing national minorities ought to have at least 2 members in the Council. In any case, the principle of proportionality should be considered in further amendments in the Law.
Fourth principle – the Council consists of a significant number of representatives from NGOs.
After recent drastic amendments in 2001, now the Council of Croatian National Radio and Television consists of 25 members. Apart from obligatory representatives from the Croatian Diaspora and national minorities there are members recommended by Croatian Universities, Academy of Science and Arts, writers’ society, journalists’ society, musicians’ society, Society of film and drama artists, Organizations from the Homeland War, Organizations in primary and secondary education, Croatian Olympic Council, and Catholic Church. In Slovenia the National Assembly (parliament) appoints members of the Council recommended by Slovenian universities, the Journalists’ society of Slovenia, the Chamber of Culture, etc.
Whereas this approach may be considered by our politicians as suspicious, we find in our country 3-5 relevant NGOs established long ago and publicly known. One has to account also for the danger to get representatives in the Council from so-called GONGOs – pro-governmental NGOs like we’ve already got in the case of the Council of the Integration Society Fund.
The fifth principle is not widespread in Europe, yet deserves to be mentioned. According to the Macedonian law the composition of the Council must follow the national equivalent in the Macedonian understanding to ethnic composition in the Republic. I know very well how our officials are annoyed when Macedonia is referred to as an example of good political will towards minorities, but again we see how Macedonians try to solve the problem on the level of legislation. For example, three months ago the Macedonian national TV launched a multiethnic channel, with programmes in the languages of the Albanian, Turkish, Serbian, Romani, Vlakh, and Bosnian Muslim minorities. The programme can be received on about 85 percent of Macedonian territory (I would like to remind you that our 2nd channel also covers about 80%). Programs in minority languages had been broadcast previously by the second channel of Macedonian National Television five hours per day. After launching the multiethnic channel, there are 12 hours of minority-language programs (9 hours of which are in Albanian). I have no exact information how the Council influenced this launch, but I’m sure the Council was involved in this process.
Sixth principle – when the regulatory body is an administrative unit under a Ministry. For example in Finland the Finnish Communications Regulatory Authority (FICORA) is an agency in the administrative structure of the Ministry of Transport and Communications. In Sweden two administrative bodies, the Broadcasting Commission and the Radio and TV Authority are appointed by the government.
As regards the Latvian Radio and Television Law, the Saeima, elects nine members to the Council. Currently 7 members are elected by the previous ruling coalition and two members are from the oppositional social democrats. On the other hand, all candidacies proposed by oppositional faction FHRUL, representing national minorities in Latvia, stood no chance. For example, Mr Vladlen Dozortcev, a prominent writer and journalist, one of the leaders of the “People’s Front” fighting for the independence of Latvia in 1990-1991, several times was a candidate to this position and every time his candidacy was declined. Regina Lochmele, program manager of the National TV channel (LTV-2) and Nil Ushakov – a journalist experienced in different fields including broadcasting, both failed to gather the necessary votes to sit on the Council.
The Latvian approach of electing members of the Council only by Parliament without any reservations in fact means that the ruling coalition single-handedly elects the members of the Council. This approach is echoed only in Slovak law, at least as far as Europe is concerned other countries try to share the right to elect/appoint members of the Council between different institutions or achieve some kind of political balance in the Council. Balance in Latvian National Radio and Television Council is rather weak if at all present and as a result, our Council is considered by the society as one very politised institution.
By way of conclusion, I think that the principle of composition of our Council should be changed. How? There are different approaches - proportionality, equal representation from political parties in Parliament, a variant of NGOs representatives in the Council is also an option.
The newly elected Committee on Human Rights and Public Affairs has a very difficult task. In the current situation when the ruling coalition wants to have as much power as possible, the Committee must raise the issue of amendments to the Radio and Television Law related to minority issues and implement changes in the composition of the Council.
And a last comment. An interesting rule included in the Irish Broadcasting Act, which requires that from 7 members of the regulatory body (Broadcasting Commission of Ireland) not less than 3 shall be men and not less than 3 shall be women. The observance of gender equality in the composition of the Council is another indicator of democracy and non-discrimination.
Electing the Council members by parliament alone is problematic for all the reasons, which make democracy, in the narrow sense of majoritarian rule, problematic if not dangerous unless it is limited by the rule of law. Sharing the prerogative to nominate/elect members of this body is good for all those well-known reasons for which checks and balances are good in a democratic society.