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Azerbaijan's Media Navigate a Legal Maze

Editors of Baku's leading newspapers were thrown into turmoil in early November 1996. The Milli Medjlis had just amended the law on mass media to require licensing in addition to registration with the Ministry of Justice before newspapers could begin, or continue, operating. Fourteen chief editors of newspapers and news agencies gathered in December to demand clarification. "We hoped for some positive changes when we heard that parliament would consider amendments and modifications," the editors said in a statement to the Milli Medjlis. "But we got confused when we read the text..." The editors asked: What agency would issue the newly required licenses? What would be the criteria? Could the licenses be revoked?

The amendment, the editors complained, would "increase the control of the executive bodies over mass media, and it will certainly limit freedom of speech, press and expression and will not be in the interests of society, democratic principles, and the international obligations of Azerbaijan." A response was slow in coming. Two months later, Alexander Goldman, a lawyer for the Justice Ministry, gave an interview published in the January 18, 1997, issue of the newspaper Ayna-Zerkalo in which he evaded direct answers. "No unfavorable changes are foreseen for the mass media," he declared. Six months later, the situation was as muddy as ever. Editors finally swallowed their protests and applied for the licenses.

Building a democratic society in which independent media can flourish has proved a challenging task for Azerbaijan and for Armenia. Both claim they want to follow the European model, with market economies and democratic government. Yet both are finding the transition from communism to a new social order difficult and paradoxical.

The media in both republics must contend with the legacy of the Soviet era‹laws and institutions that impede the free flow of ideas characteristic of a democracy, ingrained traditions of government censorship and control of the news, and officials' reflexive hostility and suspicion toward the press. And the prolonged state of war between the two republics over Nagorno-Karabakh, the Armenian enclave within Azerbaijan, has added a dimension of secrecy and physicial danger to the already difficult emergence into independence of the Armenian and Azeri media in the post-Soviet era.

The conflict over Nagorno-Karabakh, like others in the Caucasus, has its roots in the Russian Empire and Stalin's brutal rearrangement of territorial jurisdictions as part of the Communists' divide-and-conquer policy toward the non-Russian nationalities. The coming to power of Mikhail Gorbachev in Moscow in 1985 and his glasnost policy unleashed suppressed ethnic tensions from the Baltic republics to Central Asia. Freed from Soviet oppression, ethnic minorities began to clamor for more autonomy.

Nagorno-Karabakh, a fertile mountain territory of 4,400 square kilometers, is populated principally by Armenians, but situated entirely within the borders of Azerbaijan. In the Gorbachev era, Armenians in Nagorno-Karabakh‹who had no television broadcasting available in their own language‹began to seek more cultural freedom.

By 1988, relations between Armenians and Azeris had deteriorated sharply. In February of that year, demonstrators in Nagorno-Karabakh and Yerevan called for union with Armenia and began expelling Azeris from the enclave. That sparked anti-Armenian demonstrations in Azerbaijan. When central authorities failed to stop the Azeri massacre of Armenians in Sumgait and other Azeri cities, Armenians inside and outside Nagorno-Karabakh began to demand political autonomy. A cycle of violence erupted, accompanied by bloody reprisals and counter-reprisals in both Azerbaijan and Armenia. Attempts by Moscow to intervene and restore the status quo ante failed, and on January 6, 1992, local Karabakh activists led by Robert Kocharian (now prime minister of Armenia) proclaimed the independence of the Republic of Nagorno-Karabakh. So far, no government has recognized it, including Armenia.

During the hot war over Nagorno-Karabakh, which dragged on until May 12, 1994, when a cease-fire was concluded, between 500,000 and 1 million Azeri refugees (Armenian and Azerbaijani officials dispute the figures) fled Nagorno-Karabakh and surrounding regions to Baku and other parts of Azerbaijan, while Armenian and Karabakh Armenian forces occupied 15-20 percent of Azerbaijani territory.

War and political crises at home have inclined President Heidar Aliyev, former head of the secret police and first secretary of the Azerbaijani Communist Party in the Soviet era as well as a leading member of Leonid Brezhnev's Politburo, toward authoritarian rule. He has maintained stern controls over broadcast and print media, with some exceptions. By contrast, the government of Armenia has dismantled its inherited Soviet censorship apparatus. But President Levon Ter-Petrossian and his ministers, politically embattled, exert tight control over television and subject the print media to financial and extra-judicial pressures.

A continuing problem for both countries is the residue of mutual distrust and old attitudes. Azerbaijan is worried about large military shipments from Moscow to Armenia, Russia's main strategic ally in the Caucasus, including rockets capable of striking Baku, T-72 tanks, and armored personnel carriers. Armenia accuses Azerbaijan of violating agreed-upon force levels under the Conventional Forces in Europe (CFE) accord. In both Azerbaijan and Armenia, officials have difficulty abandoning the conviction that media should be tools of the executive. The dictum of U.S. Supreme Court Justice Oliver Wendell Holmes that press freedom means "expression of ideas that we loathe and believe fraught with death" has yet to be embraced by Baku and Yerevan.

The primary rule regulating the Azerbaijani press since independence in 1991 and up to the present day is the Law on Mass Media, derived from the Soviet Union's press law, and adopted by Azerbaijan on July 21, 1992. Article 3 takes the high road of democracy by explicitly prohibiting prior censorship. When Azerbaijan went to war with Armenia over Nagorno-Karabakh, however, the government declared a state of emergency and reimposed censorship in violation of the constitution. Parliament subsequently modified the law on December 6, 1993, to allow military censorship.

Furthermore, the law's formal ban on censorship is qualified from the start by Article 4, which forbids "abuse of media freedom." This "takeaway" article, adopted directly from Article 4 of the Soviet law, lists subjects that may not be publicized: state secrets; classified materials; calls for the forcible overthrow of government and constitution; war propaganda; violence and cruelty; hatred and intolerance of ethnic, social, or class groups; pornography; invasions of personal privacy; and assaults on the honor and dignity of citizens. These subjects are vaguely defined, and open to interpretation.

The Azerbaijani law contains several other restrictions, such as the requirement to register with the authorities (Article 8), and not to disclose developments in criminal investigations without written permission from the prosecutor (Article 34). Article 14 provides procedures for closing down mass media in cases of violation of Article 4. Finally, the law contains a list of dos and don'ts for journalists, which are listed in a separate section titled "Rights and Obligations of the Journalist" (Articles 35-37). The criminal code, virtually unchanged from Soviet times, limits the criticism of government officials through several articles. Article 121, on libel, punishes "false and dishonoring" comments; Article 122 punishes insults; Article 188.6 specifically prohibits "critical comments on the activity" of the president of the republic. Under Article 188.6, four young journalists from the newspaper Chesme were arrested March 3, 1995, and tried and convicted on October 19, 1995. They were pardoned by President Aliyev on November 11, the eve of parliamentary elections, and released. Other criminal restrictions penalize the following acts: Article 63 (calls to overthrow the government by force); Article 64 (distribution of war propaganda); Article 68 (unauthorized release of state secrets); Article 228 (preparation or sale of pornography); Article 228.1 (materials glorifying cruelty and violence). The civil code, also a holdover from the Soviet era, considers libel a civil offense under Article 7.1.

The new Azerbaijani constitution, drafted under President Aliyev, was adopted by referendum on November 12, 1995, four years after independence, and imposed upon Soviet-era legislation, which has yet to be revised. This 154-article constitution contains all the standard freedoms in a fundamental law on democracy, including popular elections of president and parliament, separation of powers, rights of the individual, an independent judiciary, and judicial review by a constitutional court. Individual articles of the constitution cover the freedom of expression associated with the U.S. First Amendment: Article 50, reflecting the spirit of the Law on Mass Media, explicitly bans state censorship; Article 47 guarantees freedom of speech; Article 48, freedom of religion; Article 49, freedom of assembly; Article 57, the right to petition for redress of grievance.

But the constitution also pays particular attention in Article 46 to protecting the honor and dignity of citizens-a traditional issue in the Caucasus. Article 106 protects the honor and dignity of the president; Article 75 guarantees respect for state symbols. These articles effectively ban criticism of the chief executive. On January 25, 1997, Azerbaijan enacted a comprehensive law on official secrets, which holds journalists, as well as officials, responsible for leaks of classified materials. While it was under debate in parliament, critics assailed the bill for ushering in such a wide range of forbidden topics that journalists would be unable to write anything. The statute, inspired by the Russian law on official secrets, groups sensitive subjects under four headings: military, economic, foreign policy, and intelligence. Nevertheless, it officially places some issues that were secret during Soviet times-such as the health of high officials, accidents, and the state of the environment-within the public domain.

The Azerbaijani parliament is slated to consider further legislation affecting the press. Draft bills on freedom of information and on financial support of the press have been forwarded to the parliament by the New Generation group of the Union of Journalists, known by its Azeri name, Yeni Nesil. Parliamentary sources report that the legislature is drafting its own versions of these bills. No law currently regulates television or radio, although the spirit of the Law on Mass Media prevails in broadcasting. Television journalists are drafting a model law which would deal specifically with broadcasting, allocation of frequencies, and the status of independent stations.

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