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Dangers of BC members being dismissed by the Parliament

13 September 2021
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În Moldova
Cristina Durnea,
legal adviser
Independent Journalism Center
 
On September 9, 2021, the Parliament voted in the first reading the draft law aimed at amending five regulatory acts, including the Code of Audiovisual Media Services (CAMS).

Its authors proceeded from the need to hold accountable the heads of public authorities subordinated to the Parliament, and proposed establishing a mechanism to allow the Parliament to exercise control over the activity of public authorities such as the Broadcasting Council (BC) and to apply sanctions in situations when it finds that they improperly perform their obligations and duties conferred by law.

The logic of this control mechanism is justified in the light of the current procedure for establishing the BC. Specifically, since the members of the BC are appointed by Parliament decision, at first sight, it seems fair that the Parliament should also have the power to supervise whether the persons to whom it “offered” the mandate perform their duties properly.

The current law delegates to the BC chairman responsibility for the BC’s activity in the performance of the duties provided by the CAMS, as well as the obligation to present to the Parliament annual BC activity reports. In essence, this is the only time when the Parliament can actually take note of the Council’s work. However, in case its activity is deemed defective, the Parliament does not have legal levers to apply sanctions.

Based on this premise, MPs propose supplementing the article that lists cases when the vacancy of the position of BC member occurs. The first situation is when “improper performance or non-performance of obligations, prerogatives or attributions” by a member of the BC is found, and the second is when “defective activity [of the BC] is found as a result of parliamentary control performed under the law.”

Although this initiative, which was passed in the first reading, seems to be based on good intentions, the algorithm of BC accountability, in the version proposed by MPs, comes with a series of dangers for the subsequent activity of the BC.

Public consultation is a crucial step for transparency in decision-making

The Law on regulatory acts lists public consultation[1] as an inherent step in the process of drafting regulatory acts[2]. It involves any authority’s positive obligation to ensure mutual communication with civil society representatives and with other stakeholders.

Unfortunately, the Parliament neglected the principles of transparency in decision-making and deprived civil society representatives and other stakeholders of the possibility to influence decision-making by formulating objections, proposals, or recommendations to the draft regulatory act.

The timeliness of the mechanism for controlling and sanctioning BC members

The Parliament is given the prerogative to verify the activity of the BC based on the constitutional principle of parliamentary control. In the right legal package, this formula should not pose danger to the institutional autonomy of the BC.

In this situation, however, MPs’ proposals raise numerous concerns in relation to the independence of the BC, since the accountability obtained through a poorly constructed legal mechanism may subdue the BC exclusively to the political forces that hold parliamentary majority. In practice, this would mean that BC members that are inconvenient to those forces might be dismissed as if on a conveyor belt.The tool proposed by MPs to hold the Broadcasting Council
accountable

 
The Code of Audiovisual Media Services

Article 77

The position of member in the Broadcasting Council becomes vacant in the following cases:

 
  • Finding of improper performance or non-performance of obligations, prerogatives, or duties, regardless of culpability;
     
     
  • Finding of defective activity based on parliamentary control carried out under the law.
The authors of the draft act provided for a specific administrative procedure for finding that a member of the BC failed to perform or improperly performed his official obligations or duties, or finding “defective” activity of the BC.

Specifically, the Parliamentary Commission on Culture, Education, Research, Youth, Sports, and the Media is to analyze, in an objective and transparent manner, the institutional management, decisions, activity reports, and audit reports of the BC, as well as complaints, grievances, petitions, individual activity objectives and performance indicators of the assessed person, or other relevant data and information collected or submitted to the Commission.

Subsequently, the Commission is to draw up a report assessing the managerial and professional competencies of the BC member, the way in which he fulfills his official obligations and duties, or, as the case may be, the efficiency of the BC’s activity. After the Parliament receives the Commission’s report, it can dismiss the respective member of the BC with the vote of the majority of MPs.

The proposed amendments are NOT an efficient solution for holding the BC accountable

According to the law[3], BC membership is a responsible public office[4]. Therefore, since this position is deemed to be of special public interest, the mandated persons must benefit from a number of special guarantees (see Constitutional Court Decision no. 10 of April 16, 2010, and no. 29 of December 21, 2010), which protect the independence of the BC, on the one hand, and the particular rights of a BC member (e.g. the right to work), on the other hand.

This can only be guaranteed by adopting a very clear mechanism for “withdrawing” the mandates of BC members. Specifically, the situations in which dismissal may occur must be clearly individualized by law, and the procedure to be followed in this situation must also be established by unequivocal rules, so as to avoid the risk of arbitrary dismissal.

In this context, following a prima facie analysis, it can be easily noted that the wording inserted in the text of the draft law contradicts not only the principle of uniformity of the terminology in regulatory acts, but also the quality standards of the law (accessibility, predictability, and clarity).

Criteria for assessing and ascertaining situations in which a BC member can be dismissed are of such a vague and abstract nature that they easily allow parliamentary majority to make use of this mechanism whenever political interests dictate the need to change the BC composition in its favor, which implies arbitrary administrative activity.

Thus, the direct targets of this law – members of the BC and of the Parliament – will be uncertain in the application of those provisions. This will result in the subordination of BC members to the parliamentary majority (subordination generated by the possibility of a BC member to be dismissed at any time).

In order to avoid the occurrence of this risk, it is necessary to give up the current wording, already voted in the first reading, and to introduce the following additions and amendments to the text of the law:

  • Exact and exhaustive list of facts, the finding of which can lead to the Parliament’s dismissing of BC members;
  • Clear differentiation of cases involving the individual dismissal of a BC member (Article 77 p. (4) letter j)) and of situations involving the collective dismissal of BC members (Article 77 p. (4) letter k));
  • Clear definition of the nature of the sanction in the form of dismissal from office, whether it is a disciplinary sanction or a special administrative sanction;
  • Establishment of the statute of limitation for applying the sanction;
  • Legal provisions for the stages of the BC members’ sanctioning procedure;
  • Establishment of a deadline for completing the BC members’ sanctioning procedure;
  • Clear provision for the principle of collective liability or individualized liability;
  • Exclusion of terminology that is inappropriate for the texts of regulatory acts (e.g. “defective” activity);
  • Elaboration of clear criteria for the relevant parliamentary commission to assess the managerial and professional competencies of the BC members.
In conclusion, the current wording of the draft law is not an effective solution for holding the BC accountable. On the contrary, the implementation of this mechanism can significantly undermine the independence of BC members and therefore undermine the functionality of the BC in general. Moreover, in the event of the dismissal of BC members, even rightly, according to this legal procedure, the annulment of the Parliament decisions in administrative legal proceedings remains a matter of time.
[1] Article 2 of the Law on transparency in decision making: “Public consultation – mutual communication between citizens, associations established in accordance with the law, other stakeholders, on the one hand, and public authorities falling under this law, on the other hand, as a result of which both parties are informed and can influence decision-making.”
[2] Article 21 p. (1) letter e) of the Law on regulatory acts: “(1) A regulatory act is drafted in several consecutive stages, as follows: (…) public consultation, approval of the draft regulatory act by the authorities whose competence has direct or indirect tangency with the object of regulation of the draft regulatory act (…).”
[3] Law on the status of persons holding responsible public offices
[4] Article 2 of the Law on the status of persons holding responsible public offices: “Responsible public offices are established on the basis of acts issued by the Parliament, the President of the Republic of Moldova, and the Government, within their competence, as established by the Constitution and other laws. A responsible public office is held under a directly obtained mandate, through elections, or indirectly, by appointment in accordance with the law.”