Gulshaiyr Abdirasudova, a human rights defender, conducted an analysis of the new draft Regulation
In her analysis, she emphasizes the presence of serious shortcomings in the draft Regulation on media registration. In her opinion, this document contradicts the current legislation on media, creates legal uncertainty, and may lead to arbitrary restrictions on media freedom.
The first and most important remark concerns the inconsistency of the draft with the current Law "On Mass Media." The law clearly establishes that the procedure for state registration, re-registration, and refusal of registration must be determined by the Cabinet of Ministers. However, the draft states that these functions are assigned to the Ministry of Justice. Abdirasudova notes that the Ministry of Justice has the right to execute and manage this procedure but does not have the authority to independently establish the procedure if such powers are not provided by law. This distorts the hierarchy of normative acts.
Furthermore, the law clearly regulates which issues can be governed by subordinate legislation — only registration, re-registration, and refusal of registration of media. However, the draft Regulation goes beyond these boundaries by introducing norms regarding the termination of media activities, which is not provided for by either the Cabinet of Ministers or the Ministry of Justice.
According to the analysis, the second significant violation is related to the principle of legality. The media law contains an exhaustive list of grounds for refusal of registration. At the same time, the draft Regulation significantly expands this list, including reasons such as the presence of an investigator's or bailiff's act, "similarity" of the media name, use of "inappropriate" words, and failure to rectify formal deficiencies. According to human rights defenders, subordinate legislation does not have the right to introduce new restrictions not provided for by law.
The third problem lies in legal uncertainty. The draft uses vague and evaluative formulations, such as "inappropriate and obscene words" or "elements of discrimination." It is unclear who and by what criteria will evaluate these terms, which creates a risk of arbitrary application of norms.
Moreover, it is unclear how the prohibition on the establishment of media for individuals in places of detention will operate. The draft does not clarify whether this applies only to new founders or also to those who are already founders of an operating media outlet and were convicted later. In the absence of clear explanations, this norm could be used to refuse re-registration or effectively terminate the media's activities.
The human rights defender expresses concern over the provision that allows for refusal of registration based on an investigator's act. An investigator is not an independent body, and their decision is made without public hearings and judicial oversight. This could lead to restrictions on media activities even before or without judicial proceedings. At the same time, an individual investigator's act is given almost normative force, allowing it to be used as a basis for refusal of registration.
In conclusion, the human rights analysis indicates that the draft Regulation:
— does not comply with the Law "On Mass Media";
— violates the principles of legal certainty and proportionality;
— creates conditions for arbitrary application;
— lowers the threshold for restricting and terminating media activities;
— does not meet the constitutional requirements and international obligations of Kyrgyzstan in the field of freedom of speech.
Gulshaiyr Abdirasudova calls for a revision of the draft in accordance with current legislation and human rights protection standards.
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