UNCLAS KABUL 001043

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PGOV PREL PHUM AF
SUBJECT: SUPREME COURT DECISION MAY HASTEN PUBLICATION OF
MEDIA LAW

REF: KABUL 913


1. (U) SUMMARY. In a development that could open the path
to gazetting the media law, the Supreme Court has sided with
President Karzai's objection to a provision in the media law
requiring the Lower House to confirm the president's pick to
head state-run Radio and Television of Afghanistan (RTA). In
a letter to Karzai, the court wrote that the Lower House's
effort to limit executive branch influence over RTA was
unconstitutional. The Parliament may dispute the Court's
authority on this matter. In the same letter, the court also
announced that a Lower House effort to establish a separate
body from the court to interpret the Constitution was also
unconstitutional. Post will transmit a translation of the
court's letter septel. End Summary.

Court Strikes Down Provision on RTA Chief Requiring
Parliamentary Approval
--------------


2. (U) In an April 25 letter to Karzai, the Supreme Court
considered invalid a provision in the media law added by
Parliament that would have required legislative approval for
the president's choice to head RTA to win approval from the
Lower House. Karzai has held up publication of the media law
in the government's official gazette, claiming he wanted the
court to review the law for constitutionality (reftel). He
only formally asked the court to do so last week. MPs argued
that the law should have gone into force immediately after
the Lower House overrode Karzai's veto last September.


3. (U) The future of the media law now rests with Karzai and
the Cabinet. Government officials contacted by the Embassy
on Saturday were unsure whether the Palace would return the
law to Parliament for another vote or whether Karzai would
instruct the Ministry of Justice to publish the law minus the
disputed provision in the official legal gazette.
Journalists and media freedom activists were waiting to see
the text of the court's letter, which is not yet public,
before issuing a reaction.


4. (U) The court's second advisory opinion, that the Lower
House's desire to establish a separate judicial body for
interpreting the Constitution was also unconstitutional,
deals a blow to many opposition politicians' efforts to
extricate the Supreme Court from ruling on constitutional
disputes between the executive and legislative branches. In
practice, the court has almost always sided with Karzai. The
court's opinion clears the way for the establishment of the
Independent Commission for Supervision of the Implementation
of the Constitution, called for in Article 157 of the
Constitution, to go forward. The opinion goes against the
objective of Lower House MPs, who had wanted this commission
to interpret and rule on constitutional issues (instead of
the Supreme Court). Instead, the opinion backs Karzai's
position that the commission's vague purpose to "supervise
the implementation of the Constitution" does not include
legal interpretation.

Clearer Path for Publication of Law
--------------


5. (SBU) The Karzai-Parliament dispute held up publication of
the media law for more than eight months. Today's decision
could clear the way for publication of the law in the
gazette, despite ongoing constitutional disputes. Many
opposition politicians and journalists strongly believed
confirmation of the RTA chief by the Lower House would help
assure the state-run media's impartiality during election
campaigns. However, in reality that provision would have had
little impact on this year's election. Had the RTA chief
required a confirmation vote, Karzai could have stalled a
vote until after Parliament's June-July recess. Even if he
felt compelled to put his choice up for confirmation earlier
and lost that vote, Karzai would likely have kept his choice
in office in spite of a failed vote in Parliament (Karzai has
kept three current Cabinet ministers in office despite
failing confirmation or impeachment votes, much to the Lower
House's annoyance). Given that reality, we will continue to
press for quick publication of the law in the gazette,
accepting that the remaining provisions improve the overall
protection for both independent and state-run media in
Afghanistan.
RICCIARDONE