December 7, 2013
S. Court ruling reignites Media Law debate
Finally (and defying the expectations of this column, it must be admitted), the Supreme Court declared the Law of Audiovisual Communication Services (more commonly known as the Media Law) to be fully constitutional.
With notable prudence and precise timing, the seven justices took their decision by six votes to one, preferring to defer their ruling until after the October 27 elections.
The long-awaited ruling triggered both joy and fury, as only seems to be expected in this country these days — not only because of its legal significance but because of the interests affected
In particular those of the Clarín Group, the biggest business holding in the country and owner of the biggest concentration of television and cable channels and (as is widely known) the most stubborn resistance to this law coming into effect — something it managed to delay for over four years in a display of legal lobbying and political decision-making flair worthy of better causes.
In any case the consequences of the Court ruling (all predictable and long pre-announced) should neither be stunning nor difficult to apply although it is also true that on the evidence of the first few days, its implementation will not be easy.
The first thing that Martín Sabbatella, head of the AFSCA, did was to present himself at the company to notify them of the beginning of the process to adjust to the parameters established by the law. The grudging response was to issue a statement affirming that “the government has decided to advance de facto .... beyond what was established by the law and the (Supreme Court) ruling.”
According to them, Sabbatella presented himself to the Group imposing an “openly illegal” procedure, given that “the downsizing norms were totally suspended by the company” via injunctions. According to their interpretation of the Court ruling, “the same conditions, alternatives and possibilities as the other media groups should also apply to the Clarín Group,” and, turning the issue on its head, they accused AFSCA of “ignoring” the Court ruling and the government of “advancing against the few independent voices remaining in Argentina.”
“Independent of the King of Spain,” one might comment sarcastically, because their continued resistance only confuses society as to the core issue — the Supreme Court decision is clearly legal and enshrines a constitutional law. All political and/or media interpretations are hence secondary.
The affected group’s insistence that “freedom of expression is not guaranteed” are thus no more than “procedural delaying tactics,” as the well-known constitutional expert Eduardo Barcesat has pointed out. The presentation by a group of national deputies from this city aligned with Mayor Mauricio Macri and headed by Federico Pinedo and Patricia Bullrich, asking the Supreme Court to suspend its own sentence “until freedom of expression and the press have been guaranteed” was exotic to say the least.
Over and above the interpretations, arguments and pure verbiage, there is a law sanctioned by Congress after having been fully, exhaustively and democratically discussed nationwide by dozens of social and professional organizations along with the most diverse social sectors via opinion polls, finally approved by a comfortable majority and with the participation of almost all the political parties in both Houses of Congress.
Such is the law which the Supreme Court has just said must be heeded.
From any democratic standpoint, any exhortation to defy the law is extremely dangerous, whatever the arguments and twisted logic offered. The issue transcends the opposition legislators (not all of them, fortunately, only some of the most ideologically blinkered) and it is to be hoped that their bad example does not spread and that the waters calm.
Otherwise we would be appealing directly to the subversion which disobedience of the law plainly is. Democratic laws are made to be kept. There is no valid reason for disobedience, which leads to the worst paths and incites violence. Insisting on defiance sounds more like provocation. Beyond the business interests which might be affected, the higher interest of the nation is always superior. And thus has the Supreme Court judged the matter — there is nothing more to discuss but simply to apply the law strictly.
Any other way out is essentially coup-mongering. It is not about deploying legal arguments and nor is there any room for further interpretation after the final ruling of a Supreme Court which is the ultimate instance and authority in a republican system. Whether you like its decisions or not, they must be heeded — not only by those supposedly affected but also by the government, which now has no choice but to ensure the application of the law.
So there is nothing more to negotiate and nor is any presumed “freedom of expression” debatable in this issue. Nor are business freedom or the constitutional guarantees of private property at stake. It is just about simply adjusting a company to the terms of a law and the best that could happen is that it be done quickly and peacefully.
Even if the distribution of state advertising and other benefits is debatable (as the Court itself has admitted), the media need moral stature to press their claims. And the road to that is not disobeying the law.
Any quibbling is anti-democratic today and this country is tired of that. Just when an entire society is remembering how President Raúl Alfonsín preached the National Constitution, it may be affirmed that any scam, whether by the government or the opposition, would be mean and rotten.
Today any disobedience, whatever its arguments, goes beyond the legal pale. It is, rather, an offence to the intelligence and the democratic calling of a nation.