“I have no doubt that the Constitutional Chamber lacked the bravery to stand up to the power of the commercial media oligopolies in El Salvador.”
Interview with Oscar Pérez, President-Director of Fundación Comunicándonos and representative of the Citizen Board for the Human Right to Communication.
Q/ What are the positive aspects of the Constitutional Chamber’s ruling on the Telecommunications Law?
A/ I would like to give you a positive response, but as I read and reread the Constitutional Chamber’s Ruling (http://voces.org.sv/wp-content/uploads/2015/07/Sentencia-Sala-de-lo-Constitucional.pdf), I worry and we worry more and more. The judges lacked a human rights perspective and I have no doubt that the Constitutional Chamber lacked the bravery to stand up to the power of the commercial media oligopolies in El Salvador.
In order to answer your questions more precisely, I am going to use the statement that we recently released as the Citizen Board for the Human Right to Communication (http://voces.org.sv/wp-content/uploads/2015/08/Aclaracion-inconstitucionalidad-65-2012-36-2014.pdf).
There are three positive aspects of the ruling. First, it responded to the complaints filed by citizens alleging that the Telecommunications Law was unconstitutional. It responded to those complaints late, but it did provide a response. Second, it left open various spaces from which the government and especially the General Directorate of Electricity and Telecommunications (SIGET) can present possible avenues of action to the Legislative Assembly. This would mean that prior to the December 31, 2015 deadline set by the judges, a legal framework that recognizes the three communications sectors –public, commercial and community- could be established. Third, it facilitates the route that human rights groups can take to report the Constitutional Chamber to international organizations based on the argument that it violated the right to freedom of expression consecrated in our Magna Carta. Furthermore, it failed to recognize the three communications sectors and their role in the construction of a democratic society and did not include instruments that develop that right such as the International Standards of Freedom of Expression for Free and Exclusive Broadcasting or the Standards for the Transition to Open, Diverse, Plural, and Inclusive Digital Television of the Inter-American Commission on Human Rights (IAHCR). On the contrary, it continues to put forth a vision of the radio spectrum as a space that exists exclusively for profit.
Q/ What are the negative aspects of the ruling?
A/ Our assessment as the Citizen Board for the Human Right to Communication is that the ruling only favors the concentration of the media in the hands of a few. In other words, it will strengthen the country’s media oligopolies. It is a ruling that does not favor the fight for democratization in communications because it continues to see communication as a commodity and not as a human right. It is important to say this clearly, because this ruling does not contribute to the quality of our democracy, which we have been building since we signed the Peace Accords in 1992.
For example, the ruling requires that the Legislative Assembly draft a law regulating concessions prior to December 31 of this year. We believe that this request will generate risks because the recipe that has been given to the legislators involves consolidating concentration of the broadcasting spectrum in the hands of those who traditionally have held it. It does not instruct legislators to recognize the three sectors of communication. It is necessary for clear rules to be issued in advance of the reorganization, particularly now that we are talking about the transition to digital service.
Another negative aspect of the ruling and one that we disagree with is the automatic renewal of the frequency concessions for those who obtained the concession prior to the issuing of the resolution. This allows for the infinite extension of concentration of radio and TV frequencies in the hands of the country’s commercial media oligarchies.
We also question the Chamber’s daring decision to order that concessions keep the same band width in the implementation of the digital broadcasting system. The judges failed to consider the fact that this order eliminates the opportunity for new stakeholders to access a frequency through the benefits of the digital dividend. With this ruling, digitalization in communications could become a threat to Salvadoran democracy. Now the digital dividend will serve to strengthen only the commercial sector, thus denying the people of El Salvador the right to a pluralistic, free, inclusive, and democratic media system.
The Constitutional Chamber again disappointed the people legally and ethically. It had a unique and once-in-a-lifetime opportunity to show its commitment to the people and democracy by using legal categories such as public order and guaranteeing the right to communication. This would imply opening up instruments for the transmission of ideas and thoughts to the broadest variety of expressions and visions of Salvadoran society as an inescapable part of the construction of a democratic society in which every voice should be heard. But it simply lacked the bravery to take on the commercial media oligarchies.
Q/ What will you do in response to this ruling? What are the next steps?
A/ We are currently working on three scenarios. First, the citizens who filed complaints have presented a request for clarification regarding the contents of the ruling in the hopes that the Chamber will correct or clarify part of the ruling. Second, we will support and seek out ways to work directly with the government and SIGET so that it can draft and submit to the Legislative Assembly a proposed bill for the Telecommunications Law that will be respectful of International Standards of Freedom of Expression, especially guaranteeing that digitalization will strengthen the democratization of communications and the quality of Salvadoran democracy. Third, organizations that defend the human right to communication will also turn to all of the appropriate international agencies. We have already requested a hearing before the Inter-American Commission.
Q/ What should the government do with the Court’s ruling?
A/ It should accept support from Salvadoran organizations working for a more pluralistic and democratic media system and accept support and advice from international organizations that are familiar with the topic as well as individuals like the IACHR Special Rapporteur for Freedom of Expression.