Since the demise of the Taliban regime in late 2001, the dissemination of information has gotten steadily easier and its purveyors more professional. But signs have recently emerged of efforts within both the executive branch and the legislature, the National Assembly, to curtail the activities of the media under the pretexts of national security or religion and culture.
Much discussion is emanating from the National Assembly's Wolesi Jirga (People's Council), which is due to review the Mass Media Law that President Hamid Karzai decreed shortly before the legislature came into existence in 2005.
Constitutional Context
In January 2004, a Constitutional Loya Jirga (Grand Assembly) approved a new constitution for Afghanistan. It declares that "freedom of expression is inviolable...[and] every Afghan has the right to express his thought through speech, writing, or illustration or other means, by observing the provisions" of the constitution. The same article (Article 34) further gives every Afghan the "right to print or publish topics without prior submission to the state authorities in accordance with the law." The constitution also stipulates that directives related to the media "will be regulated by the law."
Freedom of expression is further strengthened by Article 7, which obliges the state to "abide" by international conventions to which Afghanistan is a signatory, including the Universal Declaration of Human Rights.
Lawmakers are faced with a historic responsibility. They can increase the country's vulnerability to the arbitrary exercise of power. Or they can pave the way toward a more inclusive, tolerant, and democratic society that is mindful of the country's religious and cultural values.
But the freedoms enshrined in Afghanistan's Islamic constitution are also guided by Article 3, which stipulates that "in Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam."
The 2004 constitution calls for the mass media to be governed through legislation. Consecutive administrations -- first the Interim Authority in February 2002 and then the Transitional Administration in March 2004 -- approved temporary media guidelines before President Karzai decreed a new media law just days before the Afghan National Assembly was inaugurated in December 2005.
The draft media law already contains problematic clauses, and there are indications that the Wolesi Jirga could try to make the law more restrictive.
Viewed in that light -- assuming that the executive branch believes in freedom of the media and that the judiciary is not bent on curtailing freedoms to make political statements -- the current law already looks like a positive first step, allowing Afghanistan to become a democratic state.
Wolesi Jirga And Media Law
The Wolesi Jirga is essentially reviewing the 2005 media law in order to change it from a presidential decree to a law. Within the lower house, matters related to the media fall under the Wolesi Jirga's Religious and Cultural Affairs Commission.
Virtually all of that commission's proposed modifications of the existing media law are of a restrictive nature.
The proposed preamble emphasizes the role of religion by recalling Article 3 of the constitution, which stipulates that "no law can be contrary to the beliefs and provisions of the sacred religion of Islam."
In a seemingly redundant statement, the proposed preamble then states that the media law should be in accordance with the Afghan Constitution and the "international covenants" that the country has signed.
While the 2005 media law was intended to cover all mass media, the proposed amended law states that the media law "is the first legislative step related to Radio and Television and supporting independent media in the reconstruction process of Afghanistan...but it does not cover all related matters." It adds that other areas -- such as electronic commerce, intellectual property (copyright), and "access to information held by the public authorities" require "separate laws to be construed in harmony with the [media law]."
The proposed Article 11 would call for the formation of a High Council of Media to "keep track" of income and expenditure of mass media, ensuring that they are "overt and transparent." The Religious and Cultural Affairs Commission's recommendation on the composition of the High Council of Media is still in flux, but so far the names include members of the Wolesi Jirga, a representative of the Ministry of Justice, a mullah from the Ministry of Religious Endowments and Islamic Affairs, and the head of the Journalism Faculty at Kabul University. There are no recommendations for the inclusion of members of civil society; nor is there any suggestion to include a representative of the media industry itself. If Afghanistan's media sector is to develop in a democratic direction -- while respecting the country's constitution -- media professionals and media lawyers should be included on the High Council of Media.
The Religious and Cultural Affairs Commission's proposed Article 33, on the "Dissemination of Prohibited Material" -- which in the original MML included four categories: "matters contrary to Islam or insulting to other religions," "insulting or accusative matters concerning individuals," matters contrary to the Afghan Constitution or Afghan criminal codes, and the exposure of the identities of victims of violence -- is modified to include four additional restrictions: "material jeopardizing stability, national security and territorial integrity of Afghanistan," "material providing false information which might disrupt public opinion," "publicity and promotion of any other religion other than Islam," and "material which might damage physical well-being, psychological and moral security of people, especially children and the youth."
Most of these restrictions -- including those listed in the original media law -- contravene provisions of Article 19 of the Universal Declaration of Human Rights. However, given the supremacy of Afghanistan's religious beliefs over other laws -- as clearly stated in that country's constitution -- an argument can be made that restrictions in the media law should either be limited to constitutional limitation or, if listed separately, clarified further to prevent abuse in the future. As listed in the media law -- particularly in the additional restriction proposed by the Religious and Cultural Affairs Commission -- there are also vague terms such as "insult" and clauses open to interpretation, such as "information which might disrupt public opinion," that beg clarification or deletion from the law.
There are also proposals for the creation of "independent" commissions to oversee complaints against Afghanistan's state-owned radio and television stations and against the official news agency (Bakhtar). But ensuring the independence of these commissions arguably demands that they not be included in the media law. Their creation and funding belongs in the arena of open and public debate within the National Assembly, and commission members deserve to be allowed to vote on their commissions' internal hierarchies.
Forward-Looking Law
Afghanistan has taken strides forward in the past four-plus years in the realm of media freedom. The current challenge is to avoid basking under slogans touting what has been achieved -- and instead to enact laws and regulations that protect the safeguards enshrined in the Afghan Constitution. At the same time, there is an obligation to list clearly the constitutional restrictions on the media.
To demonstrate real progress, the media law that the Wolesi Jirga's Religious and Cultural Affairs Commission proposes should do more than simply protect existing freedoms and create space for a professional and self-regulating media. It should also protect basic media freedoms against unwarranted encroachment by any future executive.
The Religious and Cultural Affairs Commission -- and in fact all of their colleagues in the lower house -- are faced with a historic responsibility.
They can increase the country's vulnerability to the arbitrary exercise of power. Or they can pave the way toward a more inclusive, tolerant, and democratic society that is mindful of the country's religious and cultural values -- which are fully protected within the Islamic Republic of Afghanistan's constitution.