BICMA’s powers and autonomy considerably diluted under the new Bill
It is no secret that, of late, the government and media relations have been at an all-time low after a series of corruption and critical articles came out in the media. One of the ways in which the government reacted was by cutting off advertisement to critical media.
Now, the MoIC Minister and Cabinet plan to have a lot more say in how the press is regulated by assuming more powers over the press using the Bhutan Information Communications and Media Amendment (ICM) Bill 2012.
The Bill in short gives the MoIC Minister and the Cabinet much more powers and a direct say in the appointment and overall functioning of Bhutan’s media regulatory Authority called the Bhutan InfoComm and Media Authority.
According to reliable sources even BICMA’s attempts to dilute the minister’s powers and give itself more independence has been shot down by the MoIC ministry.
The final draft of the Bill contains key changes under ‘chapter two’, that deals with functions and powers of the ministry and ‘chapter three’, which among others, focuses on establishment of the regulatory authority and appointment of the members of the authority which currently is the Bhutan Media and InfoComm Authority (BICMA).
The existing 2006 BICMA Act was already criticized for giving the MoIC minister too many discretionary powers over BICMA which is supposed to be an autonomous media, film and telecom regulatory company. However, the new bill instead of respecting the fundamental principles of a free press enshrined in the Constitution is even more draconian then the existing Act.
While the existing Act and the earlier draft entails involvement of the RCSC the final draft excludes RCSC and allows more participation of the minister and the cabinet in BICMA.
A provision in the earlier draft which states, “The authority shall have all the powers that are necessary for the effective regulation of the ICT and media industries and for its functioning as an Independent Regulator,” has been removed.
This has instead been replaced with a clause which states, “The authority shall establish a Service Manual containing comprehensive rules for the efficient functioning of the authority and shall enforce the ICT and media development policy of the government.”
This new clause inserted by the MoIC undermines BICMA’s role as an independent regulator. Also, the manual of rules framed by BICMA for its functioning will have to be approved by the Minister who can also make changes to the rules.
Furthermore, a new provision in the final draft, section 32 states the Minister may, by order, issue to the authority directives on ICM policy matters which has to be submitted to the cabinet for information.
Under the existing BICMA Act a member of the authority can only be removed from office by the minister with prior approval from RCSC. Now even this protection has been taken away as under the final draft bill the minister can remove any member of the authority by only prior approval of the cabinet.
According to media professionals this particular provision apart from making every BICMA member vulnerable could also be used by politicians to arm-twist BICMA into taking action against the Media.
Under the present Act, In case of emergency brought about by large scale and serious violence, terrorism and natural disasters among others, the Minister may request BICMA to direct any media to transmit its ICT and media service specific announcements free of charge and may also stop any ICT or media service which is prejudicial to the sovereignty and security of the nation.
However, under the final ICM draft bill 2012, the minister shall directly execute such actions without requesting BICMA.
This clause gives a direct and draconian power to the MoIC minister which can be potentially used to shut down any media house on flimsy grounds without going through the proper regulatory body.
The earlier draft states, the members of the authority shall be appointed by the minister, with prior approval by the Cabinet, from a panel of names comprising of senior civil servants nominated by Royal Civil Service Commission (RCSC). It also includes representation from the private or corporate sector.
However, the final draft doesn’t say anything about private or corporate sector representation and also states “the cabinet shall appoint the Chairperson of the Authority who shall also be the chief executive officer (CEO) of the authority. The Chairperson shall be a senior civil servant and appointed for a term of five years.” It also says the Authority’s chairperson shall appoint employees including the Director.
Here again the role of the RCSC has been removed in selecting civil servants as members to BICMA giving the cabinet powers in appointing the authority members through their Chairman.
Under the existing Act, BICMA elects a member from among the members as the chairman and Director of the regulatory authority serves as Member Secretary of the authority during meetings.
In the existing Act the power to establish advisory bodies is with BICMA. However, under the new bill that power lies with the ministry.
Advisory bodies, under the new bill will be established by the ministry and members of the proposed Media council and ICT advisory committee shall be appointed by the Minister. The Media Council shall function as per a charter approved by the cabinet.
The MoIC minister’s direct role in appointing Media Council members and the Cabinets role in deciding the Terms of Reference will make the Media Council subservient to both the MoIC Minister and the Cabinet.
This could also significantly hamper media freedom as the Media Council is supposed to arbitrate when people have grievances against the media giving it powers over the media houses.
In already many separate meetings held with the media houses the MoIC has proposed that the Media Council be given powers to withhold advertisements to Media houses that do not abide by its decisions.
These additional powers to the MoIC Minister is in addition to the several discretionary powers he already has which include allowing foreign investment and allowing cross ownership in media houses.
Meanwhile, many media professionals in general aren’t happy with the draft Bill. A few seasoned journalists said they feared that the new bill would centralize media regulatory powers with politicians and political parties.
They feel the above clauses give too much power to the Minister and the Cabinet over the media at the expense of an Independent Regulatory Body and more importantly at the expense of Press Freedom.
These Media professionals are fearful that given the recent and past precedence the government will not hesitate to use these provisions to control and intimidate the media.
“Legislators and regulators are two different parties. A regulatory authority should be independent,” said Tashi Dorji ,Editor of Business Bhutan.
“If at all there is a need for control in the interest of the nation, the ministry or the minister should be doing it through the regulatory authority,” he explained.
“BICMA’s authority shouldn’t be undermined in any way else it’s like directly controlling the media,” another senior journalist said.
The amended Act also confers BICMA with ‘immunity against prosecution’. “No legal proceeding or suit shall lie against any member of the authority and an employee of the authority in respect of official duties, which is done in good faith pursuant to the provisions of this Act,” states a provision in the final draft Bill. BICMA under the new Bill has also been given a quasi-judicial character.
The MoIC Minister Lyonpo Nandalal Rai when contacted by the paper on the issue said, “There are many reasons for taking powers from BICMA and whatever is done, is done for the good of democracy.”
The ICM Bill, after certain major consultations was scheduled to be submitted, in time for the summer session of parliament. However, department of information and media (DoIM) officials said it had to be kept on hold owing to certain additional changes that had to be incorporated in the draft.
DoIM officials said the Bill will have to wait for the next elected government. Unless it is an “urgent bill”, no new bills will be introduced during the upcoming winter session, also the last session for the incumbent members.
The final Draft Amended ICM Bill, 2012 is now available for reference on the DoIM website. DoIM officials said there hasn’t been any feedback on the final draft till date.
Earlier in April, 2012 the same MoIC minister issued a written directive to his ministry to not give any advertisement to this paper in response to some critical coverage on corruption issues. The same boycott was adopted by all cabinet ministers.