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6. Pre-Election Campaigns and the Media
There is little question that one of the most important components of the election process is the period of the pre-election campaign. The degree to which an election is considered free and fair is often measured by the success or failure of the system to ensure fundamental safeguards. They include:
- Providing fair opportunities to competing candidates and political entities to actively inform citizens about their programs;
- Articulating rules that are well defined, rational and enforceable;
- Guaranteeing consistent compliance and unbiased enforcement by government officials, election administrators, and relevant adjudication and enforcement authorities;
- Promoting a professional and responsible media environment.
A review of the Law on Basic Guarantees of Electoral Rights and the Law on the Election of President makes it clear that lawmakers attempted to provide a comprehensive foundation to underpin a rational and fair campaign process. In spite of soundly construed intentions, however, the current legal framework is not totally sufficient to secure the desired results in the still delicate democratic environment. The pre-election campaign period heralded significant advancements in opening more liberal campaign opportunities to candidates representing a variety of political orientations and giving rein to a more independent press. While the newly freed media often displayed an immature understanding of their role in the post-soviet campaign environment, some candidates and their organizations openly strategized to circumvent and manipulate what were, on occasion, confusing and contradictory new rules. The issues are complex and seem to mirror the growing pains of the evolving democratic society as a whole. In spite of the difficulties, controversies, and inequities experienced during the these elections, the campaign process represented a significant step toward productive political competition and meaningful elections.
Foundation Principles in the Law on Basic Guarantees of Electoral Rights of Citizens
Fundamental ground rules are established in the Law on Basic Guarantees that are intended to set the tone for all elections in the Russian Federation. Under its tenets citizens and electoral associations are entitled to campaign for or against any candidate or electoral association by any legal method. In addition, Article 23 of this law provides that the «state shall secure to the citizens and electoral associations free (open) pre-election campaigning ....,» and guarantees candidates and electoral associations equal access to the mass media (Article 2 grants electoral blocs all the rights afforded electoral associations). Article 24 makes it obligatory for mass media promoted or co-promoted by state or municipal bodies, organizations or institutions which are funded in full or in part from the budgets of federal or local self-governing bodies to provide equal opportunities to candidates or electoral associations of «varying political orientations.»
In the Law on Basic Guarantees, the rights of voters' initiative groups are not specifically addressed, leaving their entitlement to «equal access to the mass media» in question except as they may or may not be covered in other federal laws. Article 24 also indicates that candidates «or» electoral associations shall be entitled to time on state and municipal radio and television operating «within the territories of the relevant electoral districts» free of charge and on an equal basis. Likewise, candidates «or» electoral associations are guaranteed the right to additional paid time to be made available under equal conditions for all candidates or electoral associations. There is no guidance suggested in the law as to how, why or under what circumstances it would be determined which entity would be eligible for the air time at no charge.
Other important aspect of Article 23 of the Law on Basic Guarantees is the prohibition placed on pre-election campaigning by members of election commissions, bodies of state power, local self-government bodies, or local self-government officials. An exception is made for candidates nominated from among local government officials who are guaranteed to the right to campaign on an equal basis with other candidates. The provision also attempts to curtail unfair opportunities for abuses by candidates or authorized representatives of candidates who, by profession, are journalists, officials of mass media or creative workers employed by state radio and TV. Under the law, they are banned from participating in coverage of the pre-election campaign.
The Law on Basic Guarantees of Electoral Rights also establishes fundamental rules and limitations on use of the mass media during the pre-election campaign period. For example, Article 24 requires that printed propaganda materials contain information related to the organizations and persons responsible for the printing or publication. The law dictates the official time period for the pre-election campaign from the date a candidate is registered until one day prior to election day. Further, it prohibits the publishing of any public opinion polls or forecasts 3 days prior to and on election day.
Article 25 identifies «impermissible» activities and abuses which could ultimately cause the candidate's registration to be canceled. Among restricted acts are campaigning activities or messages that promote social, racial, national, or religious hatreds or animosity, appeal to the seizure of power, violent challenge to the constitutional system or state integrity, or promote war. This provision replicates the language of Article 29 of the Constitution of the Russian Federation dealing with guaranteed rights of freedom of ideas and speech. However, the constitutional provision extends the prohibitions to also cover agitation or propaganda which promote language supremacy. This language is not included in the Law on Basic Guarantees of Electoral Rights. Provisions of the Law on Basic Guarantees of Electoral Rights places electoral commissions at the center of monitoring the pre-election campaign process and making judgements as to when and where there may be violations. Under Article 25 the electoral commissions are required «to audit the observance of the procedure established for pre-election campaigning.»
Campaign Provisions in the Law on the Election of the President
While the Basic Guarantees Law sets the general tone in establishing a basis for equal campaign opportunities, the Law on the Election of President adds additional guidance as to how its objectives can be carried out. It embellishes the fundamental rules in several ways.
Article 38 clarifies and extends the list of individuals and bodies who are restricted from conducting pre-election campaigns or distributing propaganda materials. Whereas the Law on Basic Guarantees prohibits participation by members of electoral commissions and bodies of state and local government or their officials, the presidential law extends the list to include military units, institutions and organizations, as well as charitable organizations and religious associations.
Clarification is provided regarding the official end of the campaign period by defining that campaigns shall terminate at 12 midnight local time prior to the day preceding the day of the election.
Additional restrictions regarding the content of campaign propaganda are imposed by Article 38. In particular, the law prohibits campaigns involving free or preferential giving of goods, rendering of services, securities or payment. Article 39 stresses that candidates, electoral associations, blocs and initiative voter's groups and their authorized representatives may not provide money, presents, or other material value to voters, or arrange for the preferential sale or distribution of free goods. The prohibition is extended to include promises to voters for such rewards. The restrictions do not extend to distribution of printed materials and badges prepared for the campaign, or payments and goods given to individuals for their work during pre-election organization such as for gathering signatures on candidate petitions, or serving as an observer on election day.
The presidential election law rectifies the omission of the Basic Guarantees Law by identifying voters' initiative groups in its provisions related to the media access. Articles 40 spells out parameters for access to broadcast media. This article attempts to clarify the eligibility of candidates, electoral associations, electoral blocs, and voters' initiative groups to receive broadcast time on a free or paid basis. Under these provisions only candidates are entitled to media time free of charge and the privilege is only extended to air time on radio and TV companies which are funded by the federal budget or budgets of the Subjects of the Russian Federation. Electoral associations, blocs, and voters' initiative groups are provided the right to campaign on state and municipal radio and TV, presumably on a paid basis.
Certain requirements are also imposed on broadcast stations in their management of broadcast time utilized in the pre-election campaign. For example, Article 40 identifies the kinds of propaganda which can be conducted on broadcast media including debates, round tables, press conferences «and other forms not prohibited by law.» In addition, the law prohibits the interruption of programs containing pre-election campaign propaganda by advertisements for goods or services. Stations are also required to identify programming that presents campaign propaganda offered by election participants. This information is to be aired in a separate bloc without additional comment. The law suggests that this informational bloc should be presented at the beginning of the election participant's broadcast. The law also requires that broadcasts containing campaign propaganda be simultaneously recorded on tape and that the tape be stored for 6 months from the day of the broadcast.
Article 41 of the Law on the Election of President establishes fundamental rules regarding campaign opportunities in the print media. The law attempts to ensure that periodicals founded or co-founded by state or municipal bodies, state enterprises, agencies or organizations, or funded in whole or in part from the federal budget or budgets of the Subject, treat all candidates or nominating groups equally in terms of granting space for their campaign materials. Under Article 41, it is prohibited for these periodicals to refuse to grant space to a candidate, electoral association, bloc, or initiative voters' group, if they have already granted space to an opponent. They must provide space under the same conditions and in the nearest subsequent issues. On the other hand, periodicals established by bodies of legislative, executive, or judicial powers exclusively for publication of their official messages and materials are prohibited from publication of campaign materials. In addition, periodicals founded by candidates, electoral associations, blocs, and voters' initiative groups as well as public associations which are part of electoral associations are relieved from having to grant space to their opponents.
Both Articles 40 and 41 mandate that the Central Election Commission establish formal regulations regarding the granting of air time and print space for campaign purposes. In formulating their regulations regarding broadcast time, the CEC is to develop instructions taking into account suggestions of candidates and nominating organizations. In both instances the CEC is to seek the cooperation of «state bodies that provide adherence to constitutional rights and freedoms in the field of mass media.»
The Law on the Election of President also places an obligation on state bodies and bodies of local self government to assist candidates and nominating organizations in arranging for pre-election campaign assemblies and meetings with voters. Article 42 dictates that applications for such public gatherings must be considered by the relevant authorities within 5 days under «orders» established by Territorial Election Commissions. Upon request of the election commission, premises owned by state or municipal authorities, state enterprises, agencies, and organizations are to be donated for these events free of charge. In making such arrangements, the law mandates that the election commissions provide equal opportunities to all election participants.
The presidential election law also augments rules only superficially prescribed in the Law on Basic Guarantees of Electoral Rights regarding distribution of campaign materials. Article 43, for example, requires that local administrations allocate special places for hanging or posting campaign materials not later than 20 days prior to the day of the election. Suitable space must be provided in at least one location within the area served by each polling site, and must be sufficient to accommodate all candidates, electoral associations, blocs, and initiative voter's groups equally. The law also stresses that use of public or private buildings, edifices, or premises may also be used with the permission of the proprietor or owner, although restrictions are imposed on the posting of materials on monuments, or structures of historical, cultural, or architectural significance. The law makes it clear that campaign materials may not be hung in the premises of election commissions or in the voting areas.
Whereas the language in the Law on Basic Guarantees indicates only that the election commissions «shall audit» observance of the procedures established for the conduct of the pre-election campaign, Article 39 of the presidential election law implies an obligation that they will also take action upon becoming aware of violations. Under its provisions, once informed of unlawful speeches or on distribution of unlawful propaganda materials, election commissions «are entitled to undertake measures» to prevent the activities from continuing. Further they are entitled to apply to respective bodies with «requests for prevention.» The Central Election Commission, in particular, may appeal to the Supreme Court to cancel the registration of a candidate it he or she has committed pre-campaign violations. Under this law the Supreme Court is obligated to consider the CEC's request within 3 days, or immediately if the request is submitted within 3 days prior to the election. Article 43 reinforces the prohibition against distribution of anonymous campaign materials and reiterates similar language regarding the entitlement of election commissions to take measures to prevent dissemination of unidentified or counterfeit printed materials and to apply to respective authorities for assistance as necessary.
For Consideration
While the spirit and general scope of the Law on Basic Guarantees of Electoral Rights and the Law on the Election of President provide a positive foundation for the conduct of free and fair election campaigns, officials and candidates alike are hampered by a number of technical deficiencies which need to be explored. What follows are examples of some technical omissions and deficiencies, if not resolved, likely to result in continued controversies and misunderstandings.
8.1. There are a number of terms utilized in the various laws governing elections that are not adequately defined. Ideally, the laws must be articulated clearly and to the extent possible, devoid of opportunities for subjective interpretation or selective application. Sometimes even the inadequate or ambiguous definition of terms will be sufficient to cause misunderstandings and challenges to the system. A few examples serve to illustrate the kinds of problems which can arise when terms and applications are ill defined. It is recommended that lawmakers review these terms and make determinations as to their actual intended meaning in the election context, and that the terms and their definitions are used consistently in all applicable laws
Equal Conditions: The powers ascribed to the Central Election Committee in Article 15 of the Law on the Election of President include, in particular, the power «to create equal conditions» for the pre-election campaign. The question arises as to what that phrase is intended to mean. The specific definition can have significant bearing on how procedural regulations are formulated and how judgements are made regarding the degree to which the participants and the media carry them out. Is the law intended to mean, «exactly equal terms» or does it mean «creating equal opportunities» for candidates? When it comes to use of the state radio and TV media, for example, does it mean exactly equal air time, or access to air time on equal terms? Under the latter, there may be less concern about seeing that every candidate receives the exact same number of minutes or the exact same number of lines of newspaper space, and more concern about ensuring that each candidate has access to media under equal conditions. If free campaign time is given to one candidate, it is given to all candidates. Or, if time is purchased, the terms and fees applicable to one candidate are the same for all candidates. This holds true even if, ultimately, candidates or nominating organizations each use more or less time or space.
State Radio and TV: In the laws governing presidential elections, candidates are guaranteed free air time on «state radio and TV» at no charge. While it might be relatively straightforward to determine how many minutes will be allocated taking into consideration the number of candidates, how a «state media» is defined. Again, the manner of definition plays on how relevant regulations are drafted. Does «state media» mean nationwide state media....or does it mean media which is sponsored or funded from the budgets of state bodies? Does it mean media sponsored totally by the state or those which receive partial funding by the state? How much funding...any?.....51%? Would it cover media operating under an agreement for funding by a state agency but for which no funds have actually been received? The various laws and regulations tend to use the term «state radio and TV» slightly differently in each context.
Under Article 40 of the Law on the Election of President, the Central Election Commission is charged with formalizing the procedures for the granting of broadcasting time on «state TV and radio companies» to candidates, electoral associations, electoral blocs, and voters' initiative groups. In its resolution concerning the «Procedure for Granting Air Time on the Channels of State TV and Radio Companies,» the CEC made strides in filling the gaps left vacant by the laws by including its own definitions of what constitutes state media. Where as Article 40 of the Law on Election of President refers to channels of TV and radio which are «financed at the expense of funds of respective budgets (federal budget, budgets of the Subjects of the Russian Federation),» the resolution refer to TV and radio companies «the founder (co-founder) of which is a state agency.» Whether there is room for a distinction between a founding agency and actual financial support, is not clear. It would be helpful if the same terms were used consistently to avoid the potential for confusion.
The Campaign Period: Although the laws are quite clear as to when the campaign period officially ends for all candidates, the official beginning of the campaign period is difference for each candidate. Each candidate's «campaign» begins on the date of his or her registration. In addition, the narrow time frame envisioned in the laws does nothing to address the realities of pre-registration activity which is virtually unavoidable. As evidenced in the presidential elections, the media was covering activities of individuals seeking nomination well in advance of their registration. Certainly, the act of seeking the nomination and the process of gathering signatures on petitions provided fertile soil for mass media publicity. In news stories and interviews prominent nominees were openly discussing their anticipated registration as well as their programs and their political differences with opponents who were also expected to be registered. There was little doubt about the intentions of the more prominent individuals, including incumbent President Yeltsin to seek nomination and to be registered as a candidate. The media gave no appearance of recognizing any obligation to withhold coverage of individuals as candidates until after they were registered. Early on, when Zyuganov was the first and only candidate registered, the campaign rivalry between him and the President was already being covered extensively in the mass media. Questions and allegations about premature, and therefore, illegal campaigning were being brought to election officials left with little to draw upon in developing an adequate response.
It is suggested that alternatives be explored as to the manner in which the campaign period is defined in law. Perhaps the day of registration should be used as the opening date for purposes of receiving and using campaign funds allocated from the federal budget and for the initial granting the free and paid air time on state media. It would be helpful, however, if the law contemplated pre-registration campaign activity under separate provisions. The law might, for example, separately define allowable activities and give recognition to the kinds of expenses to can be incurred in promoting oneself for the purposes of seeking nomination. It can be argued that there is a valid public interest served in providing voters with information about those seeking nomination.
Campaigning: In view of allegations regarding premature campaigning, it became clear that «campaigning» was not adequately defined. Did mass publicity and media coverage of various individuals before they were actually registered constitute campaigning?» The distinction became particularly blurred in determining the difference between coverage of the Yeltsin, the President, and Yeltsin the candidate. The general rule of thumb was that in order to be considered a campaign message, the content had to include a specific appeal for the support or defeat of a particular candidate. Although not totally satisfactory in responding to concerns and challenges, at least this definition was an attempt to apply a measurable standard. As legal reform is pursued, this is an issue which should be given further attention.
8.2. As currently written, the laws invite a degree of uncertainty regarding the entitlements of various participants to paid and free air time on state, regional, or municipal radio and TV because each law treats them slightly differently. As already discussed, the Law on Basic Guarantees omits any reference to voters' initiative groups. Article 24 of that law guarantees access to free media to candidates «or» electoral associations. With regard to paid time, the same article provides candidates «or» electoral associations access, «by agreement» with state TV and radio companies. Article 40 of the Law on the Election of the President, on the other hand, gives only candidates the right to free access. Yet, when it lists the entities entitled to use state and municipal TV and radio (presumably on a paid basis) candidates are not identified specifically while electoral associations, blocs, and voters' initiative groups are. In a later paragraph candidates are afforded the right to use municipal radio and TV (presumably on a paid basis) but state and regional media are not identified in the reference.
In another example, the Law on Basic Guarantees implies an entitlement that is not carried through in the Law on the Election of the President or the CEC's resolution «Concerning the Granting of Air Time.» Under Article 24 of the Law on Basic Guarantees of Electoral Rights, candidates «or» electoral associations are entitled to free time on state and municipal radio and TV «within the territories of «relevant» districts.» Taken literally, the right to free air time on municipal radio and TV would seem to be a right guaranteed to any type of candidate regardless of the kind of election being conducted. In actual practice and in the different treatment of municipal media in the presidential election law, however, it appears that the entitlement implied Law on Basic Guarantees is subject to waiver. Perhaps as lawmakers contemplated use of municipal media in presidential campaigns, it was argued that since presidential candidates do not run on a «district» basis as would candidates for the State Duma, for example, free use of municipal radio and TV should not apply.
The table that follows illustrates the subtle difference in the approach to media access employed by the two relevant laws, and the CEC resolution. It is recommended that lawmakers revisit this complex subject and consider bringing clarity and uniformity to the various laws and their numerous provisions which address the same issues.
Paid and Free Access to the Media Provided By Law and Regulation for the Pre-Election Campaign
Medium
|
Entity
|
Legal Basis
|
Law On Basic Guarantees of Electoral Rights
|
Law on Election of President
|
CEC Resolution on Procedure for Granting Air time
|
Free
|
Paid
|
Free
|
Paid
|
Free
|
Paid
|
All-Russia State Run Radio/TV
|
Candidate
|
X*
|
X**
|
X
|
***Not Specified
|
X
|
X
|
Electoral Association
|
X*
|
X**
|
Not Specified
|
X
|
Not Specified
|
X
|
Electoral Bloc
|
X*
|
Silent**
|
Not Specified
|
X
|
Silent
|
Silent
|
Voters' Initiative Group
|
Silent
|
Silent
|
NotSpecified
|
X
|
Not Specified
|
X
|
Regional State-Run Radio/TV
|
Candidate
|
X*
|
X**
|
X
|
Not Specified
|
X
|
X
|
Electoral Association
|
X*
|
X**
|
Not Specified
|
X
|
Not Specified
|
X
|
Electoral Bloc
|
X*
|
Silent
|
Not Specified
|
X
|
Silent
|
Silent
|
Voters' Initiative Group
|
Silent
|
Silent
|
Not Specified
|
X
|
Not Specified
|
X
|
Municipal Radio/TV
|
Candidate
|
X*
|
Silent
|
Silent
|
X
|
Not Specified
|
X
|
Electoral Association
|
X*
|
Silent
|
Silent
|
X
|
Not Specified
|
X
|
Electoral Bloc
|
X*
|
Silent
|
Silent
|
X
|
Silent
|
Silent
|
Voter's Initiative Group
|
Silent
|
Silent
|
Silent
|
X
|
Not Specified
|
X
|
* Article 24 guarantees right to access at no charge to Candidates «or» Electoral Associations. Also provides for free access on networks broadcasting «within the territories of the relevant electoral districts,» leaving meaning unclear in presidential elections in which electoral districts have no relevance.
** Article 24 provides right to paid access to Candidates «or» Electoral Associations by agreement with state radio and TV companies.
*** «Silent» is used to indicate that the issues or entities are not addressed at all in the context of the law.
«Not Specified» is used to indicate that while others are specifically granted an entitlement, this entity is not identified in the particular provision reference. Based on standard rules of legal construction the omission usually implies the entity has been purposely excluded and is therefore not granted the entitlement.
8.3. Article 37 allows a candidate to withdraw his or her candidacy «at any time prior to election day.» During the presidential election, it was generally understood that Aman Tuleev was planning to withdraw although he delayed submission of his withdrawal until the final days of the election campaign.. Until his actual withdrawal, Tuleev continued to enjoy the benefits of media access as guaranteed him under the law. Tuleev's use of his allotted time, however, gave rise to an issue that had not been anticipated. In the period immediately prior his withdrawal, the messages of his broadcasts did not focus on his candidacy. Rather, Tuleev used his time to attack the current regime and steer support toward Zyuganov. The tactic, in effect, doubled the allotted time to which Zyuganov was entitled in this time period. Without a realistic deadline for withdrawal, this window of opportunity could be subject to calculated manipulation. It is recommended that a strategy for closing this loophole be investigated.
8.4. The omission of language stipulating the obligations of independent media in the pre-election campaign in the laws governing elections prompted significant and unresolvable questions by election officials and administrators and left a whole sector of the media with no guidance whatsoever. Article 23 of the Law on Basic Guarantees provides for equal access by candidates and electoral associations to «mass media» which, generally, would include independent media. No indication is given, however, as to whether independent media are bound by the same principles as state media in providing access to candidates. Just as importantly, the question arises as to whether the umbrella of the CEC's mandate to «create equal conditions» for the pre-election campaigns is sufficient to allow it to adopt regulations covering independent media. The full text of their specific authority under the Law on Basic Guarantees related to «auditing the observance of the procedure established for pre-election campaigning» makes no reference to independent media. In fact, Article 40 of the Law on Election of President limits their responsibility for developing instructions on the procedure of granting broadcast time to «channels of state TV and radio companies.» If the CEC were to attempt to provide guidance to the independent media, it could find itself vulnerable to challenges for overstepping its mandate. If the CEC is not the authority to regulate the independent media for the purpose of pre-election campaigns, what entity is? In the absence of adequate guidance and legal authority, it is equally unclear on what basis complaints about alleged violations involving independent media would be adjudicated. These are questions that will need to be addressed for the future.
8.5. Both laws require the CEC to develop regulations to define rules pertaining to the granting of access to mass media. It is recommended that Article 40 of the Law on the Election of President and Article 24 of the Law on Basic Guarantees include a deadline for the promulgation of the appropriate regulations which should pre-date the end of the candidate nomination and registration period. Every participants must have full access to all the rules and they must also have the rules well in advance. The campaign period is very short. For this reason, it is crucial for candidates, electoral associations, and mass media to have time to absorb the regulatory requirements and to plan their activities and establish their strategies.
8.6. It is also recommended that the laws affirmatively address strategies by which the CEC should disseminate regulations and instructions to those directly affected. At the very least, candidates and electoral associations, blocs, and voters' initiative groups should be issued copies of the regulations. As meaningful competition continues to grow in the evolving democratic environment, the traditional practice of passive outreach by simply relying on publication of critical materials in the official gazette may no longer be sufficient. This suggestion is also prompted by a concern that, in spite a legally mandated obligation to publish regulations of the CEC, newspapers have refused to do so based on financial constraints or perceived lack of public interest.
8.7. The CEC's resolution «On the Procedure for Granting Air Time on Channels of State TV and Radio to Candidates for President of the Russian Federation and Publication of Campaign Materials in Newspapers and Periodicals» should be thoroughly reviewed by lawmakers to determine which details provided in the resolution should be formalized into law. It offers significant details which should provide ample material for meaningful discussion and resolution. For example, it provides rules for the granting of air time and print space in the event of repeat voting. This aspect of the campaign process should be legislated. Another aspect that should be reviewed is how and by whom stations and publishers are to be paid or reimbursed for the free air time or space they provide to candidates. The resolution also attempts to make a distinction between propaganda and political advertising which might be fruitful in developing more meaningful legal definitions. Special attention should be given to the resolution's attempts to clarify the procedure and the jurisdiction of various election commissions and other relevant bodies in accepting and dealing with complaints about alleged violations. These are issues which should be formalized in law.
Provisions Subject to Potentially Subjective Interpretation and Selective Enforcement
Laws must be such that they can be applied uniformly and consistently. This is probably the most fundamental ingredient in creating free and fair conditions. If there is one area that may be particularly fragile in meeting such standards, it is the application of vague and potentially subjective language to legal provisions ensuring order and propriety in the campaign. These include the many references to prohibitions against campaign propaganda which «violates standard ethical norms» or to propaganda, speech, or use of a person's name in a way that «insults the honor, dignity or reputation» of another person. These concepts which linger from soviet-style traditions remain well ingrained. In responding to an informal survey of participants at an IFES sponsored round table on media and campaign issues, 68% of the respondents indicated that broadcast or dissemination of propaganda in violation of «standard ethical norms» was «very likely to occur.» Legitimate questions arise as to how these terms can be interpreted in a way that can be uniformly and consistently enforced. This is particularly true in the heat of campaigns, when candidates confront each other, and criticize their opponents' records in office or programs for the future. To avoid subjective bias and selective enforcement, it is essential that the standards and criteria by which violations will be judged are clearly defined and measurable.
Some might argue that violations involving promotion of racial, religious, or national intolerance or animosity, seizure of power, or violation of state integrity should be readily obvious. These concepts may, in fact, be muddled depending on the circumstances. For example, it is not so farfetched to imagine that under these restrictions, a candidate would have to be careful about any statement or position he put forward on the crisis in Chechnya. A proponent of harsh and aggressive measures in Chechnya could be vulnerable to allegations that advancement of such a view promoted intolerance or animosity. In contrast, a candidate's espousal for increased autonomy, if not independence, for Chechnya might fall into the trap of disseminating a message that calls for violation of state sovereignty.
It is even more questionable whether clear standards can be effectively articulated and consistently and uniformly applied in judging actions or words that allegedly violate «standard ethical norms» or constitute «insults» to honor, dignity, or reputation. It can also be argued that adjudicating grievances on such nebulous matters is vulnerable to subjective interpretation. These are questions that are certainly not unique to the election laws of the Russian Federation. It is like asking «How do we define art, and conversely, what is «obscenity?» Ultimately the answer seems to be, «I don't know how to define it, but I know it when I see it!» When it comes to «standard ethical norms» in political campaigns, one must consider whether the answer isn't ultimately the same.
Equally important, who should be responsible for bringing such complaints? Should it be incumbent on a candidate who believes he has been «insulted» or aggrieved by the words or actions of an opponent to bring such complaints? Or, should officials of state bodies or members of commissions independently monitor the campaigns and make decisions as to which candidates have been sufficiently «insulted» that judicial review and punishment are warranted? As written, the laws imply that officials are responsible for monitoring the process and initiating action on these kinds of violations. In fact, among election participants referenced in the earlier survey, there seems to be a general expectation and reliance on election commissions. Sixty-nine percent of the respondents indicated that the Central Election Commission carried the major burden in ensuring that violations be addressed. Fifty-eight percent assigned a similar level of responsibility to Subject Election Commissions. The difficulty in the option of intercession by election officials is safeguarding against selective and politically motivated targeting as well as the potential for subjective bias to be interjected into the process. Without such protections, preferential advantage to some candidates over others by election authorities could ultimately influence the outcome of the election. Election officials should generally be removed from such potentially subjective and controversial arenas whenever possible.
In most established democracies of long standing, questionable words or actions of candidates are challenged and fought by the individuals involved in civil court where rulings are determined on the basis of rules normally applied to libel and slander cases. While the press might cover such cases and publicize the nature of the conflict and the outcome, the disposition of the civil case is not generally related to the status of the candidate and his or her eligibility to stand for election. Campaigns remain in the public domain, with virtually no interference or intervention by the state or election administrative bodies. It is left to the electorate to observe the campaigns and to decide for themselves how to judge the character, honesty, discretion, and dignity of the candidates. When it comes to fairness, credibility, and adherence to «standard ethical norms,» they may not be able to define it, but they'll know it when they see it.
For Consideration
8.8. It is recommended that serious consideration be given to removing election commissions from the lead position of having to audit and intercede in campaign activity, especially in cases allegedly involving «insults to the honor, dignity, or reputation» of another person. It is preferable that these cases should be addressed through the normal civil proceedings as provided for under Article 152 of the Civil Code. This law provides a sufficient and appropriate venue for dealing with such cases without intermediary intervention on the part of the election administrative structure. Such cases should remain in the public domain where the electorate can judge for itself.
Under the provisions of Article 152, any citizen may appeal to the court if he has been aggrieved by dissemination or information discrediting his personal honor, dignity, or professional reputation or if his rights and legal interests have been so discredited. Such cases are tested against whether or not the person disseminating such information can prove it in court. If the defaming information has been spread by mass media sources, the law provides that it must be retracted in the same source. If the information was contained in a document, Article 152 requires that the document be replaced or rescinded. If the aggrieved person's rights or legal interests have been impaired, he has the right to publish his response in the same mass media sources.
The Civil Code also provides for the imposition of fines and payment of compensation to the aggrieved person in addition to the mandated retraction or correction of the damaging information. Article 152 even contemplates circumstances whereby the disseminator of the information cannot be identified. In these instances the person whose dignity, honor ,or professional reputation has been violated can request that the anonymous information be officially declared wrong or unreal.
Exercise of citizen's rights under the Civil Code has the capacity to satisfy the urgency of such complaints in the time constrained campaign environment. Advancing such complaints through the election hierarchy tends to result in delays as questions of jurisdiction are not clearly answered in the law and have not yet been thoroughly established in administrative practice. Article 52 also provides a graduated course of appropriate remedies which are not available within the realm of election commissions' authority. In addition, the current process for initiating and dealing with these types of complaints must still ultimately rest on a ruling of the court if recommendations of the election commissions or the Judicial Chamber on Information Disputes are not accepted or acted upon. Under these circumstances the current law only provides one recourse. The Central Election Commission or the Judicial Chamber can appeal to the Supreme Court and request that the offending candidate be de-registered and precluded from the electoral contest.
General Issues Related to The Pre-Election Campaigns During the Presidential Elections1
The technical requirements and entitlements encompassed in the campaign provisions of election law do not exist in a vacuum. Most analysts and observers would probably agree that in actual practice the pre-election campaign period for these presidential elections did not always reflect the free and equal environment envisioned in the law itself. Where the process was flawed , the cause was not necessarily due to a lack of effort or commitment on the part of officials to attempt to fulfill the technical requirements of the law. Rather, it is probably more accurate to suggest that the shortcomings in actual practice were evidence that the roots of democratic principles are not yet sufficiently entrenched in the peripheral socio-political, legal, and media institutions to ensure that the spirit of law is fully understood and fully embraced.
The problems and shortcomings in implementing the pre-election campaign mirrored those which exist in all sectors of the emerging social structure where old style traditions and expectations continue to linger beneath the surface. Weaknesses in the freeness and fairness of the pre-election campaign process took several forms.
Imbalance in Media Coverage
The most pervasive shortcoming in the pre-election campaign was the obvious imbalance of media coverage and the apparent advantages of incumbency which sorely tested the effectiveness and enforceability of laws which presumably guarantee equal access by all candidates and electoral associations. This was one of the predominant themes which was common to the findings of virtually all international observer delegations who were present for first and second rounds. It was also a common complaint expressed by opposition candidates and their supporting organizations throughout the campaign process as well as local observers and analysts.
The obvious bias took several forms some of which were quantified in the report of the European Institute for the Media (EIM.). Based on the findings of their team whose members included Professor Dr. Bernd-Peter Lange of Germany, Richard Schoonhoven of Holland, Jonathan Steel of the United Kingdom and Benedicte Berner of Sweden, the report went so far as to say that the that the Russian media displayed such a bias for the incumbent president that it «undermined the fairness of the election.» According to the EIM assessment, 53% of the broadcast time leading up to the first round was devoted to Yeltsin. In the same time period they found that 18% of the campaign broadcast time focussed on Zyuganov while other candidates received less than 7%. During the period leading to the second round the EIM's assigned a score to the frequency and tone of on-air mentions afforded each candidate. Based on their scoring formula Yeltsin gained a score of PLUS 247, while Zyuganov's score was calculated at a MINUS 240.
The obvious bias in favor of the President was not only reflected in the imbalanced amount of coverage devoted to his campaign. Particularly leading up to the second round campaign coverage was tainted by an obvious and blatant tendency of broadcast media to display Yeltsin in a favorable light while coverage of Zyuganov, including his live appearances and interviews, was slanted with negativity and frequently accompanied by critical and sarcastic commentary on the part of interviewers and commentators. It would have been difficult for even the most casual viewer not to notice the trend that emerged on the major broadcast stations. The pervasiveness of the bias has been well documented by the Open Media Research Institute (OMRI) in their weekly compilation and analyses of printed articles and broadcasts in the weeks leading up the presidential elections. Its consecutive issues of the OMRI Russian Presidential Election Survey tracked the media's general election coverage as well as the campaigns of contesting candidates throughout the duration of the campaign period.
OMRI noted that even NTV, the largest independent television station which had been the subject of 2 investigations in 1995 on the basis of its critical coverage of the government, and which tended to be less favorable in its coverage of the pro-government «Our Home Is Russia» bloc than the state-run networks during the December parliamentary elections, seemed to undergo a major reversal during the presidential races. OMRI reported, for example, that in its June 9 show «Itogi», just one week before the first round, NTV favorably covered the President's visit to Tartarstan and Novosibirsk. The report also included a lengthy interview with Yeltsin and reported extensively about opinion polls showing support for the President growing. The second hour of the show was a stark contrast as most of the coverage comprised a negative view of Zyuganov. The «Itogi» commentator described Zyuganov's campaign rhetoric as «vague and ineffective.» The show included footage of anti-Communist pickets, some of whom were being attacked allegedly by Zyuganov supporters. There was no mention of pro-Zyuganov rally in Moscow the day before. Rather there was speculative commentary as to whether the KPRF would have military units ready to take to the streets if Zyuganov was defeated in the election.
In mid-May reports on all three major television broadcasters, ORT, RTR and NTV were openly critical of Zyuganov and the Communist bloc for having postponed release of their final platform. When report of the delay was covered in ORT's newscast on May 12, OMRI noted that the commentator alluded to the make up of Zyuganov's coalitions «from Bolsheviks to social democrats» and suggested that the later their program was published, the less time competitors would have to «rip it to shreds.»2 Both RTR and NTV emphasized the same story in their news coverage that day as well. None of the stations mentioned that release of Yeltsin's platform had already been postponed twice, and that at that point it was still not available either.
In a similar example, Zyuganov's mid-June proposals to form a coalition government and appoint a Council of National Accord to determine state policy, were dismissed as a campaign ploy, while Yeltsin's 26 June decree creating a Political Consultative Council to determine state policy was praised as «encouraging consensus in society.» The ORT news anchor commented that «while the Communists are creating a coalition for themselves, the current president is proposing a coalition for all.»3
Critics have also suggested that the media «blackout» in coverage regarding the President's sudden and unexplained disappearance from the campaign trail between the first and second rounds of election was symptomatic of the pro-Yeltsin bias. Zyuganov's probing questions and misgivings generated little response or examination in the media.
A major element of the incumbent President's campaign involved messages strong on anti-Communist themes. In particular, the campaign emphasized the disastrous consequences which would result if the Communists were to win the presidential election. Among the campaign materials utilized in the campaign were television advertising and documentary films recanting the suffering of the people under Communist rule. They included such images as children starving during the famine of the early 20's, the burning of icons and the demolition of churches, environmental disasters such as Chernobyl and the devastation of the Aral Sea, and graphic footage of dying soldiers and the execution of enemies. It could hardly have been coincidence that entertainment programming on the major television stations echoed these themes in the days immediately preceding the election. ORT, for example, broadcast a film about the murder of the Tsar's family. A two-part documentary was shown on NTV about the activities of the secret police between 1917 and 1953. Beginning on 3 July, RTR ran a documentary mini-series called «The Time for Great Lies» covering the early years of Soviet rule. On the night before the first round, ORT aired the film «Burnt by the Sun», an award winning film set at the height of Stalin's purges. Nikitia Mikhalkov, who both directed and starred in the film, had openly campaigned for the President's re-election.
Assumptions that the bias of the broadcast media was the result of direct pressure and manipulation of the administration would not state the case altogether accurately. In fact, analysts would probably agree that much of the bias was self directed by the media itself. Their bias was more likely an expression of their own fears that a Zyuganov win would derail their more independent status in the new democratic environment. When questioned in an interview about the role of the media, Georgii Satarov, Aide to President Yeltsin, acknowledged that the media had not been objective during the campaign. He viewed their obvious favor of the President as understandable. He indicated that unlike other developed western democracies in which elections do not «threaten the entire political system», in these elections it was necessary for the media to «do propaganda work this spring,» to protect their independence in the long term and to preserve their right to report the news in the future.4
Influence of Governmental Bodies
Concerns persist that undue and improper influence of some state and local governing bodies continues to interfere with the freedom of the press and, ultimately, the fairness of the campaign environment. Rooted firmly in the past when governmental authorities maintained virtually unbridled control over the state, regional, and municipal media, there appears to be a lingering expectation among at least some officials that the press functions merely as the mouthpiece of government to disseminate approved materials and favorable coverage of government activities. Tremendous strides have been made in creating a more open and independent press. However, the road has not always been a smooth one. It remains a work in progress.
In spite of new constitutional guarantees providing for freedom of the mass media, freedom of information and protection against censorship, much of the mass media in the Russian Federation remains under the control of governmental bodies in their day to day operations. The reality of today's «free» press is that the majority of broadcast stations and print media are still founded or co-founded and sponsored or co-sponsored by governmental bodies, organizations, and enterprises. They are still heavily subsidized from the state coffers, and still rely on the government bureaucracy for the fundamental materials, commodities, and resources of their trade. From access to newsprint and press time, to arrangements for premises from which to operate, broadcasters and publishers are usually dependent on the cooperative attitudes and goodwill of governing bodies on whom they continue to depend.
The influence of governmental bodies ranges from subtle to overt. Political and economic reprisals periodically follow on the heals of news coverage that is contrary to the officially «approved» material or openly critical of governmental policies, especially in some jurisdictions. Representatives of the media have expressed frustration at residual reluctance on the part of some authorities to allow them access to public information, meetings, and newsworthy events in spite of new laws providing for freedom of information.5 Additional administerial burdens are sometimes imposed on certain publishers and broadcasters who have had to meet extra-legal registration requirements. Some publications have been closed down altogether, while others have had their operations halted due to questionable tactics employed by local authorities. In early 1995, for example, the local television station in Klin Raion had its antenna disconnected making it impossible for the broadcaster to stay on the air. With regard to particularly sensitive issues, the press sometimes continues to experience pressure from authorities to cover events from a perspective that satisfies the official agenda.6
Since its inception in 1993, the Judicial Chamber on Informational Disputes has adjudicated scores of these cases and others involving a wide range of abuses perpetrated by governmental authorities. Complaints filed with the Judicial Chamber have also dealt with such grievances as the freezing of media banks accounts, and denial of newsprint and other commodities and supplies, 7 unilateral appointment, suspension or dismissal of editors-in-chief and broadcast station directors,8 and the levying of exorbitant postal rates for delivery of subscriptions.9 At its most serious, journalist have been victimized by harassment, censorship, deportation, and violence, leading the Judicial Chamber to state in one decision that «Unfortunately...journalism is becoming a dangerous profession.»10
These examples illustrate the degree to which new freedoms of mass media guaranteed in the Constitution are balanced like a coin on its edge with old style thinking still engraved on the other side. Allowed to go on unabated, these kinds of abuses can be particularly injurious to the freeness and fairness of the election process. In federation-wide elections the leverage of local authorities over the media may be somewhat diluted by the inherent nature of political diversity from region to region. However, governmental interference with the media could be particularly harmful in local elections where local authorities may have a vested interest in influencing or manipulating the outcome.
In the broader view, the liberalization of a more independent press seems to have brought with it a wariness on the part of some government officials. Not surprisingly, government authorities generally seem to view the media as a new threat. Both sides are only just beginning to explore the rules of their new relationship in the democratic environment. While there is little doubt that the status of mass media has greatly improved in recent years, the political and civic culture must continue to evolve if the promise of the Constitutional freedoms are to be fully realized.
Violations by the Media
Critics have suggested that that representatives of the mass media shortchanged the system by engaging in coverage of the candidate campaigns that was not only biased, but sometimes unprofessional and irresponsible. In some cases the media openly violated election laws and regulations promulgated by the Central Election Commission regarding the granting of legally mandated free air time to candidates, and the granting of other space and air time under equal conditions. In March of 1994, the Judicial Chamber ruled in favor of the Orenburg branch of «Democratic Russia» in its complaint that Iuzhnyi Ural was in violation of the law in refusing to publish the party's election platform. The Chamber also found the Orenburg State Television and Radio Company in violation for having excluded «Democratic Russia» participation in its weekly show called «Forum» in which other parties were allowed to participate. During the 1995 Duma elections similar violations took place. «Moskva» Television and Radio Company, for example, was charged with violations of the campaign laws when it adamantly refused to grant free air time to candidates for Deputy, in spite of their obligation to do so under the law.11
The 1996 presidential elections were not without similar incidents. One such case occurred in Tartarstan where the Regional Television and Radio Company had not fully complied with the regulations of the Central Election Commission specifying that each candidate was entitled to 20 minutes of free air time. In Tartarstan, a decision was made that each candidate would only receive 10 minutes. The electoral association «Yabloko» filed a complaint with the Central Election Commission on behalf of its candidate, Gregory Yavlinski. The CEC's working group on media disputes, headed by Raif Biktagirov, ruled in favor of «Yabloko» and Yavlinski was granted the balance of his air time.
In another case, Gennady Zyuganov complained that ORT had violated the law by arbitrarily replacing his new 10 minute campaign video with a 5 minute monolog which had already aired. There was no remedy available because Zyuganov had scheduled this air time just before the second round on the last night before the legal cut off for campaigning. Zyuganov complained that the switch was made after television executives had viewed the new program. He accused them of «censoring» his campaign material. (Article 23 of the Law on Basic Guarantees states that, «Candidates and electoral associations shall be independently determine the form and the nature of pre-election campaigning in the mass media.») Communist Party representatives alleged that ORT executives believed that the new video would be more affective in appealing to the voters than the speech by Zyuganov that had already been aired.12
I. I. Melnikov, one of five secretaries of the Communist Party of the Russian Federation (KPRF), alleged that ORT had refused to accept a paid advertisement on 1 July. He also complained that ORT had also refused to allow live presentations, and required pre-recorded taped presentations for use in paid air time. In addition, it was alleged that ORT had refused to permit any other representative of KPRF, except Zyuganov, to speak during his free air time slots.
In a key case that was ultimately heard by the Supreme Court, ORT was again the subject of a complaint, this time by candidate Martin Shakkum. The Central Election Commission was also a subject of the complaint. ORT had scheduled a debate among the candidates to be aired on 13 June 1996. However, the station's management subsequently made a decision to cancel the debate. Shakkum filed a complaint with the CEC on the basis that he was being denied his campaign rights. In action by the CEC led Shakkum to file a the complaint with the Supreme Count. It ruled against ORT upholding the candidate's claim. The Court also ruled that the CEC had failed to respond to the appeal of the candidate in the time limits set by law, and therefore, had also violated his rights.
A complaint was filed by an agent representing candidate Alexander Lebed. He claimed that Lebed had been denied broadcasting time on the local TV and Radio station in Kalmykia because his representative had not been present during the drawing of lots by which the schedule of candidates' presentations were determined. The CEC appealed to the station requesting that Lebed be granted his air time.
There were also occasions in which content of news stories relied on unsupported information that had not been verified. The Communist Party announced that it was prepared to sue Nezavisimaya Gazeta for publishing a report on 8 June, that Communists were planning to «take power by force,» and that they had «contacts» with Chechen separatists. The initial report in Nezavisimaya Gazeta was anonymous. The story continued to grow with additional coverage on NTV on 10 June. RFE/RL picked up the story as well, reporting that the Procurator General's Office was investigating. Officials of Nezavisimaya Gazeta admitted that it was «hard to separate fact from campaign hype in the article.» 13
As a tool for promoting a partisan bias or for attracting readership, sensationalized but unsubstantiated reporting is indicative of a press that is not fully matured. In addition, the media has not been immune to the financial hardships facing the society at large. Subsidies are not always forthcoming, and movement toward a market economy has impacted the costs of doing business while at the same time creating heated competition for readership. During the IFES round table on adjudication of media disputes (referred to previously in this chapter) in May 1996, participants discussed the reality of «news-for-hire» journalism. Journalists, as well as representatives of electoral associations who were present were quite candid in their acknowledgment that editors and journalists accept payment for choosing what stories to cover, and writing those news story from a perspective dictated by someone paying for the coverage. Respondents to the informal survey taken at the round table were asked to indicate how likely it was that these incidents would occur. Of the non-journalists responding to the survey, 25% rated this activity as «very likely.» However, among journalists, nearly 40% indicated that writing favorable news stories about a candidate for payment was «very likely» to occur.
Questionable Activities on the Part of Campaign Organizations
Evidence suggests that some campaign organizations may have engaged in questionable activities and strategies to take advantage of loopholes in the law and to specifically circumvent the rules governing the campaign process. There were many allegations about distribution of anonymous campaign materials. Vyacheslav Volkov, Yeltsin's deliberative voting member on the Central Election Commission and Duma Deputy Vladimir Ryzhkov charged the Communists with using Duma offices, telephones, and resources in the conduct of Zyuganov's campaign. Similar allegations were charged against the executive branch by Duma Defense Committee Chairman Viktor Illyukhin, who reportedly asked the Procurator General's Office to investigate.
Questions also arose regarding posters that were widely disseminated throughout Moscow featuring a joint photo of the President and the Mayor. The source of funding for the production of the posters was not clear, leading to allegations that, unless they had shared the costs equally, at least one of the candidates appearing on the poster had probably circumvented campaign finance rules.
There were also sporadic reports of campaign activity being conducted on election day. In Rostov, for example, the Procurator reported that copies of ballot papers marked for Zyuganov were found in voters mailboxes in one part of his city. It was also reported that Zyuganov supporters distributed leaflets in Komi and Bashkortostan. At one polling site visited by an IFES team, a Communist Party observer surreptitiously handed an IFES representative a small hand out promoting Zyuganov's candidacy.
During the campaign period, a glossy, full color book was published and disseminated through the campaign offices of the President, featuring scores of photographs spanning the his life. Very little text appeared in the book. There was no identification of the publisher or disclaimer as to who had sponsored its publication. The timing of its release coincided with the pre-election campaign. However, since it did not refer to Yeltsin's candidacy or make any overt appeal intended to influence voters, members of the campaign offices distributing the book argued that it was not really campaign material and therefore it was exempt from disclosure of sponsorship required under the campaign laws.
Concerns were also raised about the registration of «shadow» public associations which were allegedly extensions of campaign organizations, which raised and expended funds on behalf of a candidate but fell outside the laws regarding campaign funding and disclosure. One such association was «Home for the People» which solicited contributions for, among other things, «printed and advertising materials for conduct of elections to bodies of state power.»
Conflicts Between Federation and Local Rules and Allowances Regarding Campaign Activities
Difficulties also arose from apparent conflict between federal laws and local rules regarding allowable campaign activities. In a key example, Yavlinski street banners which had been hung throughout Moscow in April 1996, were removed by decision of the Moscow Subject Election Commission in May. Apparently, the Department for Information and Press in the Moscow City Government had submitted a proposal to the Moscow Election Commission in which it was recommended that street banners be used only for general information rather than campaign propaganda. The recommendation was based on their belief that «street banners (a very expensive type of advertising) cannot provide equal rights for each candidate.» Based on this recommendation, the Moscow Election Commission directed that the Yavlinski banners be taken down. On behalf of their candidate, Yabloko submitted a complaint to the Central Election Commission requesting that the banners be replaced and that the cost be borne by the city. The CEC ruled that the City Election Commission had overstepped its authority by creating additional restraints for political campaigning not contemplated in the federal law. Although the Central Election Commission ruled in favor of the complainant, the adjudication process took too long for the ruling to be of any benefit to the candidate. The complaint that had been filed on 30 May was not resolved until 13 June. Under the law, the campaign period was to officially end at midnight on 14 June. Therefore, Yabloko decided it was not feasible to replace the banners.
A review of the numerous issues, circumstances and violations that arose during recent elections points to the need for continued evaluation, refinement, and education if the budding promise of a free, fair and meaningful, pre-election campaign period is to reach full bloom.
The Judicial Chamber Adjudication of Information Disputes
In December 1993, President Yeltsin issued a decree establishing the Judicial Chamber for Adjudication of Information Disputes was created to assist in the interpretation and inculcation of the new constitutional frame work for liberalized information and mass media components of the newly democratized civic structure. The Judicial Chamber was also established as an intermediary to hear and make determinations regarding media related complaints and disputes covering a broad variety of issues, which go well beyond those related to the elections and campaigns. Under the decree the Chamber was granted the authority to resolve «information disputes and other matters» involving «norms» established by the Constitution, in laws of the Russian Federation , presidential edicts, and «universally recognized principles and norms of international law.»
Under provisions of the Statute on the Russian Federation Presidential Judicial Chamber for Information Disputes published in Rossiiskaya Gazeta on 3 February 1994, its venue extends to «guaranteeing objectivity, accuracy, equality and pluralism in mass media, protecting the moral interests of children and adolescents, resolving disputes about allocation of air time between legislative factions, correction factual errors in media reports, and providing mass media-related draft legislation, expert advisory opinions on applications of statutes and rulings on presidential decrees.» Its authority is even more broadly and generally extended to cover resolution of issues involving «journalistic ethics» and «generally accepted ethical norms.» In fact, its authorities are so far reaching that there appear to be only two general areas outside its purview; the Judicial Chamber may not examine disputes that are «assigned by law to the jurisdiction of the courts,» or cases pertaining to information protected as state or commercial secrets.
In formal terms the Chamber functions as an impartial and independent body although administratively it remains directly under and is funded by the office of the President. In addition, its members are appointed directly by the president . From its inception, the Judicial Chamber has been chaired by law professor, Anatoly Vengerov. The reminder of the Chamber's members all have legal and academic backgrounds, and some are also experienced in media affairs.
The creation of the Chamber from its outset was subject to criticism, particularly in terms of its constitutionality. Concerns have alternately been raised about its effectiveness and its potential for censoring and controlling the media. Yet, in the nearly three years the Chamber has been functioning, it has been increasingly relied upon to intercede on behalf of complainants representing publishers and broadcast media aggrieved by government authorities, as well as by officials, candidates, and citizens who believe they have been misrepresented or abused by the media.
The Multi-Dimensional Role of the Judicial Chamber
The extraordinarily broad scope of the Judicial Chamber's mandate sets the stage for its equally expansive and diverse approach to its responsibilities. First, although it is not a true court, it generally operates as one. The Chamber consistently conforms to and utilizes principles of basic court procedures; during its proceedings, the Chamber takes testimony and considers evidence, weighs facts, and evaluates legal issues. In rendering its decisions, the Chamber relies on applicable laws as would a traditional court. For example, in hearing cases regarding complaints with potentially subjective outcomes such as those related to insults of a person's reputation, dignity, or professional reputation, the Chamber makes its evaluations in keeping with applicable laws related to libel and slander. The Chamber appears to take on many other roles as well, for it is not just an arbiter of specific cases brought under its review. It is simultaneously a prosecuting agency, think tank, legislative task force, and media ethics board.
Throughout its work, and as many of its decisions and opinions reflect, the Chamber also sees itself as an educator as well as a barometer of ethical norms. Its decisions often include discussions of philosophic and moral principles underpinning its view of the rights and responsibilities of the mass media and the role of the mass media in a democratic society. In adjudicating cases regarding informational and media disputes, its decisions almost universally cite violations of law and violations of «standard ethical norms» with equal emphasis.
It has also rendered analytical opinions and statements in which it explores statutory defects including omissions, contradictions, and conflicts in the flurry of new laws pertaining to the mass media and its abuse. For example, the Chamber has identified the failure of the laws to:
- Clarify the legal status of the various organizational structures under which a medium can establish itself, such as a joint stock company, limited liability company, creative enterprise, association, etc.;
- Establish legally based responsibility and liability relationships between founders and sponsors, and their publishers and editorial staff;
- Adequately define «state mass media» as it relates to mandatory obligations, for example, of state mass media to publish official documents, regulations or decisions of governmental agencies and commissions;
- Effectively assign liability for «abuses of freedom of mass information,» as referenced in Article 4 of the Law on Mass Media;
- Distinguish between criminal and civil liability in cases involving such abuses;
- Identify enforcement mechanisms related to liability for violations regarding media registration requirements.
The Judicial Chamber has also analyzed what it perceives to be impediments to meaningful implementation of existing laws. In its analyses and opinions, for example, it has cited such hindrances as:
- Failure of responsible agencies to adequately monitor media abuses that fall under their jurisdictions, (such as the Ministry of Health in policing advertisers of unlicensed medicinal health products);
- Failure of responsible government agencies to respond to information and media complaints;
- Delays by prosecuting bodies in reacting to abuses in a timely manner;
- Overburdened courts whose full dockets preclude expedient resolution of media related cases;
- General apathy and non-responsiveness of governmental bodies and mass media to the administrative or judicial decisions, rulings or warnings, and their apparent impunity to punishment.
Although the Chamber's findings and opinions on these considerations have related to the full scope of issues under its jurisdiction, they become particularly relevant during the critically important and time-constrained period surrounding elections.
When it comes to complaints and violations regarding the media and pre-election campaigns, there has been growing cooperation between the Judicial Chamber and the Central Election Commission. Under the law, a wide variety of complaints and grievances may be appealed to the CEC. Complaints may also be brought directly to the courts. Where election related media disputes have been heard by the Judicial Chamber, many seem to have been brought for to the Chamber directly. A growing number, however, have actually been passed to the Chamber by the CEC. It is unclear whether their interaction was initiated due to a genuine sense of cooperation or was the result of a forced marriage. However, the relationship seems to have evolved.
Independent Intervention by the Judicial Chamber
The Judicial Chamber also acts as a prosecutor, empowered to initiate cases at its own discretion. There is no prerequisite that a complaint be forthcoming from an aggrieved party. In this regard, it is similar to the Central Election Commission, in that there is an implied obligation imposed on both entities to monitor the media environment and pursue cases where violations are suspected or become apparent. In fact, a number of cases heard by the Judicial Chamber have been initiated by the Chamber itself.
When it comes to elections and the pre-election campaign environment, a legitimate question arises as to whether the CEC or the Judicial Chamber should be involved in initiating such cases independent of a specific complaint filed by a candidate or election participant. The inherent danger to this approach should be considered. The fundamental basis of a free and fair election campaign rests on equal and uniform treatment of the candidates. Unfortunately, it is fundamentally impossible for every perceived infraction or violation to be pursued uniformly and equally in the heat of what is, by its very nature, an adversarial and competitive campaign environment. This is especially true when it comes to alleged violations of rules which are vague or open to subjective interpretation. Prohibitions against insults to a person's honor, dignity, and professional reputation, and messages which allegedly incite violence, or social, racial, religious, ethnic, intolerance, or animosity can certainly fall into this category. In addition to being open to subjective interpretation, incidents which could be perceived to violate these rules may simply be too numerous to track with consistency. It becomes particularly difficult when such violations are alleged to have occurred in a particular speech, or in a spontaneous comment during an interview or debate.
The result is that initiating action on these kinds of «abuses» by the CEC or by the Judicial Chamber, independent of a specific complaint filed by a candidate or election participant, can only result in implementation that is selective at best. In an election, selective application has the potential to interject a bias which can irrevocably alter the playing field on which the candidates are competing. Once the CEC or Judicial Chamber chooses to independently pursue a single case involving these rules, it would automatically become obliged to pursue every instance or occurrence on an equal basis in order to ensure its fundamental obligation to treat every candidate equally.
The presidential campaign offers some examples which serve to illustrate how difficult it would be to apply these rules and to select cases to actively pursue. On 22 June, Zyuganov published a statement in Pravda warning there would be «civil war.» In the same statement he referred to internal squabbling around the «senile» Yeltsin.14 The Yeltsin campaign responded with an advertisement in which the voice-over says, «The Communists haven't changed their name. They won't change their methods. It is not too late to prevent civil war and famine.»
Zhirinovsky's campaign included a number of messages that could have been interpreted as inciting ethnic intolerance. In a five minute appearance on ORT on 5 June 1995, he asserted that «ethnically defined» regions of the Russian Federation such as Tartarstan, Yakutiya, and the northern Caucasus pay less taxes but receive more money from the federal budget than other regions. Giving a string of examples he suggested that Russians «live worse....are poorer....die sooner...and have fewer rights.» He called the situation, «a war against the Russian people.»15 In an address to a Muslim audience in Sovetskaya Rossiya on 13 June, Zyuganov criticized what he called, «the invasion of foreign religious groups.»16
Pursuit of any of these types of cases by the CEC or by the Judicial Chamber would have had the affect of interjecting a bias in the campaign, regardless of how well intentioned, unless all such cases were pursued equally.
Limitations on Enforcement Capacity
A cursory review of the findings of the Chamber in a number of cases reveals that reasonable and fair rulings appear to have been rendered in a significant number of cases decided in favor of the aggrieved party. To what degree, however, however, are findings of the Chamber are binding? It appears that the Chamber is a mediating body the findings of which result in remedial recommendations often inclusive of suggestions for action by the CEC or law enforcement agencies for legal prosecution. Frequently, the Chamber offers directives to local entities, the media, or other parties to the complaint, with demands for subsequent reporting on steps taken to fulfill its recommendations. In many cases heard by the Chamber, there appears to be a willingness for compliance by those parties against whom the Chamber has ruled, perhaps to avoid further legal action, particularly among local or independent media who remain vulnerable to pressures from administrative structures. However, there is also a legitimate concern that voluntary compliance cannot be taken for granted. This may certainly be the case in terms of local governing authorities who enjoy a significant amount of power at the local level.
In these cases, the Judicial Chamber and the Central Election Commission share the same limitations. When the parties involved fail to comply with their decisions, both agencies must appeal to the procurator's office or to courts to ensure enforcement. In cases involving violations by candidates, the only alternative offered under the current election law is to request the court to cancel the registration of the candidate. In most democracies of long standing, de-registration of a candidate is founded on grounds that are specifically articulated; violations related to candidates' campaigns are not generally among them.
As yet the laws governing the elections do not contemplate a graduated scale of penalties that would more reasonably suit the varying levels of possible violations related to the pre-election campaign. Respondents to the previously noted IFES survey on adjudication of media disputes offered their views on the types of alternative penalties which could be considered short of de-registration of the candidate.
- 47% of the respondents felt that a warning was warranted for a first offense;
- 68% favored publication or public disclosure of a finding of violation on the part of a candidate;
- 26% supported a reduction of, or disqualification from using free air time as a suitable penalty for repeated offenses;
- 16% favored imposition of fines to be paid from the candidate's personal funds.
For Consideration
8.9. The law should define more specifically the avenues through which candidates and election participants may bring complaints regarding media or campaign disputes. It is recommended that the law provide that such complaints be brought to the Judicial Chamber on Adjudication of Informational Disputes or to the courts. In these instances the Judicial Chamber, with its specialized expertise, would serve as the venue for administrative remedy in place of the Central Election Commission, with the courts serving in their traditional juridical capacity. This would not preclude the CEC from serving in a consultative capacity to the Judicial Chamber. First, it would remove the CEC from a position of ruling on cases, the results of which could be perceived as partisan, and favoring one candidate to the disadvantage of another. Second, it must be acknowledged that the CEC and lower level election commissions could be a party to the complaint itself, such as occurred in Martin Shakkum's case. Election commissions are susceptible in view of the role ascribed to them in regulating media access, allocating funds to candidates for their campaigns, providing equal conditions for holding public meetings and publishing biographical information about the candidates. (For further discussion on this issue, see Chapter 13, Adjudication of Complaints, 13.1)
8.10. The issues related to the benefits and drawbacks of intervention by the CEC or the Judicial Chamber independent of a filed complaint by a candidate or election participant should be thoroughly reviewed. Emphasis should be placed on determining whether independent pursuit of cases related to the pre-election campaigns can be consistently and uniformly applied. Alternative rules should be investigated to ensure that the basis on which cases are pursued is not perceived as selective or motivated by partisan bias.
8.11. It is recommended that a schedule of alternative penalties be devised for campaign violations in lieu of de-registration of the candidate.
8.12. The review and analysis of cases and decisions of the Judicial Chamber on Informational Disputes could contribute greatly in assisting lawmakers and officials in their decisions about legal reform in this area. Although the legal system in the Russian Federation does not yet rely heavily on a system of precedents, the body of work accomplished by the Judicial Chamber will undoubtedly reveal trends which could serve as a basis for reconsidering state policy and identifying necessary legal and procedural reforms.
1 Certain references in this section have been drawn from Freedom with Problems: The Judicial Chamber on Mas Media, Frances H. Foster, Copyright 1996.
2 Media TV Networks Offer Skeptical View of Zyuganov, OMRI Russian Presidential Election Survey, No. 3, 16 May 1996
3 Newsreaders Skeptical of Zyuganov, Praise Yeltsin; OMRI Russian Presidential Election Survey, No. 12, 2 July 1996
4 «Advisors Offer Different Assessments of Media's Role,» Laura Belin, , OMRI Russian Presidential Election Survey, No. 13, 4 July, 1996
5 Judicial Chamber on Informational Disputes; Decision No. 29 (On the Conflict Between the Primorskii Krai Administration and the Editorial Office of «Krasnoe Znamia») Decision No. 2 (On the Appeal by the Guild of Parliamentary Journalists); Decision No. 8(45) (On the Krasnoiarsk Krai Administration's Refusal to Allow Journalists of Afontovo Television Company Access to an Accident Site); Decision 2(39) (On Violation of the Professional Right of ITAR-TASS Journalist T.N. Zamiatini to Receive and Disseminate Information)
6 Judicial Chamber on Informational Disputes; Statement No. 11 (On Defense of Freedom of Mass Information in Connection with the Events in Chechnya)
7 Judicial Chamber on Informational Disputes; Decision No. 35 (On the Status of Freedom of the Mass Information in Primorskii Krai)
8 Judicial Chamber on Informational Disputes; Decision No. 25 (Unlawful Firing of Sovetskaya Kalmykia Editor-in-Chief;) Decision No. 34 (On the Appeal to the Judicial Chamber of the Chairman of the Political «Council of the Amur Regional Organization of the «Democratic Choice of Russia» Party Regarding the Dismissal of «Amur» GTRK Chairman V.S. Martynov)
9 Judicial Chamber on Informational Disputes; Decision No. 3 (On the Validity of Tariffs on Postal Services Related to Delivery of Periodical Publications.)
10 Judicial Chamber on Informational Disputes; Decision No. 35 (On the Status of Freedom of Mass Information in Primorskii Krai)
11 On Several Cases Involving Violation of Election Campaign Rules; Rossiiskaya Gazeta, 14 December 1995; Statement No. 3(14), Judicial Chamber on Informational Disputes
12 The Pro-Zyuganov Clip That Was Not Shown on Channel 1; OMRI Russian Presidential Elections, No. 16, 10 July 1996
13 Communists to Sue Nezavisimaya Gazeta; OMRI Russian Presidential Election Survey, No. 7, 7 June 1996
14 Zyuganov: The Fatherland is in Danger!; OMRI Russian Presidential Election Survey, No. 11, 27 June 1996.
15 Zhirinovsky Appeals to Ethnic Russians: OMRI Russian Presidential Election Survey, No. 7, 7 June, 1996
16 Zyuganov Appeals to Muslims: OMRI Russian Presidential Election Survey, No. 9, 14 June 1996.
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