The Media out in the Open
BiH, Republic of Srpska:By Branko Peric (AIM Sarajevo)
According to the Dayton Constitution of B&H, regulation of the media falls within the competence of entities. In the Federation of B&H (F B&H) the responsibility for the media has been transferred to Cantons. Consequently, as far as telecommunications and the B&H Public Television (PBS) are concerned, the legal frameworks for the transition of the media in B&H are in ten Cantons of the FB&H, Republic of Srpska, as well as on the level of the state of B&H.
A) RTV RS: Interim Arrangements and the OHR's Decisions
The transition of state electronic media in the Republic of Srpska (RS), was launched in early February 1998, with the signing of an agreement between the RS state leadership and Office of the High Representative for B&H (OHR) on the establishment of transitional arrangements for the restructuring of the Serbian Radio-Television (SRT) in line with the European standards for public RTV services. According to transitional arrangements, the OHR appointed an international supervisor for SRT to formally and actually carry out managerial and editorial control of the only RTV house in the RS.
Under the Memorandum of Understanding, signed in mid August that year, the RS Government undertook to adopt a Law on RTV RS by December 31 that year and to establish a mechanism for "transparent and reliable financing of SRT" which would be built into the law. The television of this entity did not progress much under the control of international supervisor. What could be observed is that the language of hate was removed from the programme and that information programme dedicated proportionate time to all political parties, but also that no improvement was made in the programme quality. The production was reduced to contact shows with politicians, which over and over again focused on the same old story, mostly concerning the pre-election campaign.
At that time, the RS Government inexplicably did nothing to transform its television, nor took heed of the warnings of media associations on the need for adopting a media law. The impression was that the Government intentionally delayed the resolution of these problems, but no one could understand the true motives for its refusal to adopt legal regulations for this field. When on July 30, 1999 High Representative for B&H brought a decision on the restructuring the B&H broadcasting system, many said that Prime Minister Dodik's Cooperative Government intentionally created space for the OHR to impose his model and regulations on the restructuring of state television houses in B&H.
Since the National Assembly of RS did not adopt the Law on RTV and the Law on the Media by August 15, 1999, as requested by the OHR in his Decision on the Restructuring of the Broadcasting System in B&H, fifteen days later (on August 31), the High Representative for B&H decided to amend the existing Law on RTV RS calling it in its first provision a "transitional measure" and with a view to its suspension, set February 29, 2000 as a deadline for the National Assembly of RS "to adopt a new law, which would additionally strengthen the status of RTV RS as a public RTV service". Under the new decision of the High Representative a new RTS management consisting of six-member Management Board and a Director, was appointed.
According to this decision the Management Board would be elected by the National Assembly for a four-year term from among the representatives of journalistic community, members of the legal profession, economic sector, academic circle, trade unions and RTV workers and the Director would be elected by the Management Board for a 5-year term.
The High Representative renamed the earlier appointed Management Board into Transitional Management Board, with the mandate until February 29, 200 when the new Law on RTV was scheduled to be adopted. Since the law was nowhere in sight by that date, on March 1 the High Representative brought a decision on extending the mandate of the Transitional Management Board only to bring a new decision after that already on July 27, 2000 on appointing the new RTV RS Management Board. The decision was explained by a fact that the elected representatives (delegates) did not succeed in reaching an agreement on the corresponding law, the lack of cultural diversity of the existing board and an urgent need to establish a coherent legal frameworks for a public RTV service.
The new Management Board which, in addition to OHR's representatives included the owner of the most powerful private printed medium in the Republic of Srpska, one lawyer, one president of the craft trade union, a professor of criminal law and the representative of a private media house which operates in both entities, was entrusted with the task of electing the Director and preparing an appropriate law on RTV RS to be submitted to the Government and National Assembly by October 1, 2000 at the latest.
For obscure reasons, this OHR's Management Board did not meet the set deadlines either. The competition for the election of the Director was announced with 15 days delay and has not been concluded yet, while no one mentions the law any more. Since the elections were held in the meantime and, consequently, the new parliamentary and executive structures were established, the outcome of the envisaged concept of restructuring might be changed by some new decision.
B)The Independent Media Commission (IMC)
Simultaneously with the decisions on the transition of RTV, the OHR initiated the transition of the rules of procedure in the field of broadcasting by establishing an Independent Media Commission (IMC) on June 11, 1998. The decision was founded on Annex 10, Article II (8) and Article III (3) and (4) of the General Framework Agreement for B&H. It is composed of the Council, Implementation Board, Director General and relevant departments (monitoring and appeals, engineering, legal department, public relations department, licence department and administration and finance department). The OHR also appointed the Director General (a foreigner). Four local citizens and three international experts were elected Board and Council members. As reasons for establishing IMC the OHR mentioned that it would be entrusted with promoting the widest possible range of media services in B&H, ensuring free and fair press, as well as free, fair and unbiased broadcasting of programmes and securing open, fair and just advertising of the media services. Also, the IMC would have a task of regulating and implementing decisions in this field.
It is in charge of issuing licences to all radio and TV stations, managing the frequency spectrum and allocating frequencies, of elaborating corresponding codes for electronic and printed media and ensuring the observance of conditions for issuing licences and codes.
Until now, the IMC has carried out important work as far as the regulation of the media is concerned. It adopted the Code on Regulating TV and Radio Programme, Code on Media Rules during Election Periods, Advertising Rules and Rules of Copyright. Currently, there are 289 radio and TV houses in B&H which are using some 750 radio and TV transmitters (one transmitter per 4,700 people). Since 1992, three separate centres of political power have issued a large number of broadcasting licences to local governmental and private organisations, without any mutual coordination and totally disregarding the generally accepted standards. A large number of stations worked without any licence whatsoever. The IMC has started issuing long-term licences based on the principle of competition, transparency and public participation. This IMC rule was called the "Process of Competition for the Allocation of Long-Term Broadcasting Licences on the Basis of the Best Results Achieved". The IMC has divided B&H into 13 regions In order to ensure the better use of frequency spectrum.
According to unofficial estimates, some 30 percent of the existing RTV stations might lose their broadcasting licences. Also, 30 percent of the available frequencies have been reserved for new applicants. The process of frequency allocation should be completed by mid 2001.
In the meantime, the High Representative for B&H has brought a decision on integrating the IMC and Telecommunication Agency. The new agency will be called the Communications Regulatory Agency (CRA). Its Director will be a foreigner. The new agency shall keep the competences of both the Telecommunications Agency and IMC. Employees of both organisations will have to re-apply for jobs in the new organisational structure.
One of the outstanding problems is that of the so-called "voiceless" services (Internet Service Providers) and microwave links, which is the reason for some 90, unresolved applications for long-term licences. The multitude of OHR's decisions regarding the restructuring of public broadcasting system points to the conclusion that the process of transition was initiated without a clear and well-conceived strategy and that precious time is being lost on various fake projects, while the final outcome is still uncertain.
C) Access to Information and Protection of Sources
Article 26 of the RS Constitution proclaims freedom of the press and public information and explicitly prohibits censorship. The Constitution uses the syntagm "public information" and makes it obligatory upon "the mass media to timely, truthfully and unbiased inform the public". These formulations are contained in the Constitution of the former SFRY. The very idea of information as such doesn't have much in common with the freedom of opinion.
Valid legislation of the Republic of Srpska includes the Law on Public Information, which was published in the Official Gazette of the RS No. 10/97 of February 23, 1997 and the Law on Radio-Television, which was published in the Official Gazette of the RS No. 8/96 of April 10, 1996 (i.e. those parts that the OHR has not declared null and void). The Law on Public information proclaims freedom of information and prohibits censorship, regulates the establishment of the mass media and their editorial policy, but also prohibits "the distribution of the press and information which call for violent overthrow of the regime and violation of the territorial integrity and independence", publication of statements, replies and corrections, and also regulates the founder's and editor's responsibilities, etc. However, the Law does not contain any provisions on free access to information, protection of sources, journalists' rights, nor many other stipulations regarding media standards.
On the other hand, an entire paragraph prohibits the spreading of information and distributing of papers, specifies court and police jurisdiction in such cases, as well as the obligation of printing the statements of state authorities of special importance and urgency.
The Law contains a special chapter on the right of reply and correction. But, instead of precisely defining the conditions which imply the right of reply, the legislator provided a definition of an reply stating that any mass media shall be under the obligation to carry a reply to a published information, which implies any content if it provides additional data on the truthfullness and comprehensiveness of the initial statement. The reply cannot be longer than the published information and no comment of the reply is allowed in the same issue of the paper or on the same programme. The right to correction is granted if information is untrue or insulting and violates a person's right, damages his reputation and harms his interests. The Law stipulates that the correction shall be published without any modification or amendment on the same page or in the same programme in the first or second next issue of a magazine or programme. It also envisages the right of complaint before the court against the editor-in-chief if he refuses to publish the correction and the court is required to make a decision within 15 days as of the date of receipt of such a complaint.
The Law on TV was suspended by the OHR's decisions relating to the frequency spectrum, frequency allocation procedure, editorial policy, management, method of subscription fee collection, etc. Incidentally, according to suspended provisions the Government was in charge of allocating frequencies and determining the terms for their allocation, as well as the fee charged for their use. Both texts have been taken from the legislation of the former state (SFRY) and do not include general principles and standards of international law in this field, which the authorities of B&H are obliged to implement under Article III, item 3,b) of the B&H Constitution.