VZCZCXRO3380
PP RUEHDBU RUEHPW
DE RUEHBUL #1099/01 1201357
ZNR UUUUU ZZH
P 301357Z APR 09
FM AMEMBASSY KABUL
TO RUEHC/SECSTATE WASHDC PRIORITY 8690
INFO RUCNAFG/AFGHANISTAN COLLECTIVE PRIORITY

UNCLAS SECTION 01 OF 02 KABUL 001099 
 
SIPDIS 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: PGOV PREL AF PHUM KDEM
SUBJECT: PALACE PLANS TO GAZETTE MEDIA LAW BUT OTHERS 
LIKELY TO DISPUTE PROCESS 
 
REF: A. KABUL 1043 
     ¶B. KABUL 913 
     ¶C. 08KABUL 2478 
 
¶1. (U) SUMMARY.  The Supreme Court statement (ref A) siding 
with President Karzai over the Parliament on the media law is 
not yet public, but word is leaking out.  Palace Chief of 
Staff Daudzai told us Karzai would gazette the law, minus the 
disputed provision, rather than return the law to Parliament. 
 A/DCM urged Daudzai to gazette the law quickly, to help 
strengthen public confidence in a level electoral playing 
field.  Distracted by civilian casualties and election 
issues, MPs have not yet addressed the issue, but we suspect 
they would protest a direct gazetting.  Journalists and media 
NGO representatives objected to the Court's action, but 
supported the law overall as an improvement over the current 
situation (i.e., no media law).  A translation of the Supreme 
Court's letter to Karzai follows.  End Summary. 
 
Palace on Next Steps 
---------- 
 
¶2. (SBU) Palace Chief of Staff Daudzai told Acting DCM on 
April 28 that Karzai would order the Ministry of Justice to 
publish the law in the gazette, minus the provision ruled 
unconstitutional by the Supreme Court.  A/DCM urged prompt 
action to help strengthen public confidence in a level 
electoral playing field.  Action prior to Karzai's Washington 
visit would be a signal of Karzai's commitment to this 
principle. Daudzai said the Palace would try, but made no 
firm commitment. 
 
¶3. (U) Word of the Court's opinion has been slow to reach the 
Cabinet.  A contact at the Office of Administrative Affairs 
(OAA) had not seen the Court's decision as of April 28, and 
neither the Palace nor any Justice Ministry officials had 
contacted OAA with instructions on whether to send the law 
back to Parliament or to prepare the legislation for 
publication in the gazette.  As there was no precedent for 
such a constitutional review by the Supreme Court in between 
legislative passage and publication by the executive, the OAA 
contact did not know what path forward seemed more likely. 
 
Parliament Quiet For Now 
---------- 
 
¶4. (SBU) However, Qanooni told the Charge on April 29 that 
Parliament still expected to vote on any legislation before 
it became law.  Qanooni pointed to the dispute over the Shia 
Family Law, which Karzai has promised to review for 
constitutionality and then send back to Parliament, as a 
precedent for having Parliament vote on the final text of the 
media law.  Qanooni requested U.S. assistance in convincing 
Karzai to win parliamentary approval for any changes to the 
law. 
 
¶5. (U) Notwithstanding Qanooni's views, the Court's letter 
has yet to become a prominent issue on Parliament's agenda: 
civilian casualties and election talk are dominating the 
attention of the MPs.  MPs who supported the media law 
dismissed the Court's authority to issue such an opinion, but 
admitted Parliament has few options to re-insert the 
provision regarding the RTA chief's confirmation back into 
legislation.  Lower House MP Mir Ahmed Joyenda (Kabul, 
Hazara) said pro-media freedom MPs are discouraged by the 
double defeat of the Court's decision and last week's failed 
impeachment of Information Minister Abdul Karim Khoram, who 
had blocked enforcement of the media law (ref B). 
 
 
Journalists and Media NGO Opposition to Supreme Court 
Statement 
----------- 
 
¶6. (U) During an April 26 Norwegian Embassy-hosted freedom of 
expression discussion, Afghan journalists and media NGO 
representatives strongly opposed the Supreme Court statement. 
 Participants speculated the law would return to Parliament 
for additional debate and urged the international community 
to lobby MPs to oppose Karzai's change.  Open Society 
Institute's Abdul Hajeeb declared that private media 
companies' market share dwarfed RTA's, but RTA was still 
influential.  Allowing Karzai to control its leadership 
essentially converts RTA into a full-time propaganda outlet 
for Karzai's re-election campaign, a Pahjwok journalist 
claimed.  Participants doubted that Parliament would succeed 
in reversing Karzai's revision. 
 
¶7. (U) The journalists and NGO representatives praised the 
media law overall, and asked the international community to 
work with Afghan media advocates to pressure the government 
 
KABUL 00001099  002 OF 002 
 
 
to implement the law.  Although the law contained some 
problematic articles, such as those prohibiting speech 
offensive to Islam (ref C), it was a huge improvement over 
the current situation of no enforced media law. Especially 
during the election season, it is dangerous to have no legal 
apparatus to adjudicate media disputes, Afghan Independent 
Human Rights Commission representative Musa Mahmodi said. 
 
Comment 
---------- 
 
¶8. (U) We will continue to push for rapid enactment and 
implementation of the media law, as well as our advocacy 
efforts in support of freedom of expression.  As public 
comments in certain particularly sensitive cases could be 
counterproductive, we will continue to consult closely with 
Afghan and international partners to ensure effective but 
vigorous engagement on this crucial issue. 
 
Supreme Court Statement Translation 
---------- 
 
BEGIN TEXT: 
¶1.    An Embassy translation of the Supreme Court's April 25 
letter to Karzai follows: 
 
Regarding the Media and Law and the Independent Commission 
for the Supervision and Implementation of the Constitution 
 
To: H.E. President of the Islamic Republic of Afghanistan 
 
The Office of the President of the Islamic Republic of 
Afghanistan, through letter No. 17, dated 03/15/2009, (asked) 
the Supreme Court to assess the Media Law and the Law on the 
Monitoring Commission for the Implementation of the 
Constitution. The Supreme Court has completed its review and 
states the following: 
 
The issue of the National Assembly's endorsement of the RTA 
Director is not included in paragraph 11 and 12 of Article 64 
of the Constitution, and any addition to the Constitution is 
considered an amendment, which is solely in the power of a 
Loya Jirga. 
 
Thus, the provision of Article 13 of the Media Law requiring 
that the RTA director obtain of a vote of confidence is 
unconstitutional. 
 
Article 8 of the law for the Independent Commission for the 
Supervision and Implementation of the Constitution (which was 
passed by Parliament) required that the interpretation of the 
Constitution is under the jurisdiction of this Commission. 
 
In this regard, the Supreme Court's authority is explained by 
Article 121 of the Constitution, which states that the 
interpretation of the Constitution is under the jurisdiction 
of the Supreme Court.  Therefore, the High Council of the 
Supreme Court considers the above (Article 13 of the Media 
Law and Article 8 of the Independent Commission for the 
Supervision and Implementation of the Constitution Law) as 
contradictory to the Constitution of Afghanistan and orders 
that the above matters are non-enforceable. 
 
This is the end of the report; execution will be according to 
your order. END TEXT. 
 
RICCIARDONE