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President Sirisena Bringing “Rupavahini” Under the Purview of the Defence Ministry is Constitutionally Unacceptable.

By

Kishali Pinto Jayawardene

It has always been an interesting curiosity that politicians trained in law in Sri Lanka appear to be far more blissfully unconscious of basic legal principles than their colleagues who at least do not engage in hair splitting explanations when abusing power.

Disregarding legal and constitutional proprieties

Indeed, it is better to be upfront and admit the naked trampling of the law in the interests of brute political expediency rather than try to explain this abuse on preposterous grounds that are scarcely commonsensical let alone legally justifiable. T

rue to these traditions, we had a one time Professor of Law and a onetime Chief Justice twisting their remarkably dexterous tongues in upholding an unconstitutional ouster of a Prime Minister late last year, only to be brought up short by the Supreme Court reminding these worthies of the importance of respecting constitutional proprieties.

The recent manifestation of this same contradiction was by the Sri Lanka Freedom Party’s spokesman, also a proud product of academic legal training, who justified this week’s Presidential ‘take over’ of the Rupavahini Corporation, the country’s state telecaster on the basis of ‘institutional instability.’

By extraordinary gazette, President Maithripala Sirisena brought Rupavahini under the control of the Ministry of Defence which is part of the Presidential portfolio. Reading curiously like something coming out of the old Soviet Union, it was declared that the state telecaster has been entrusted with the burden of implementing ‘programs for the promotion of peace, harmony and reconciliation among people whilst ensuring national security.’

In the wake of that announcement, the SLFP spokesman offered the explanation that the President had taken this step in ‘the interests of the institution’ as two persons were disputing the chairmanship of the telecaster. But competing claims for the leadership of an institution does not excuse the President’s actions whatsoever.

Constitutionally, the presidential portfolio is limited to the ‘subjects and functions’ of Defence, Mahaveli Development and Environment. So despite the transparent device of slipping in a reference to ‘ensuring national security’ in that presidential gazette, how can mass media or the state telecaster be brought in within any of the ‘subjects and functions’ coming under the defence portfolio?

The question is purely constitutional

The issue is not whether in fact, there was an internal dispute or not, or whether the telecaster was running at a loss or not. Rather, the question here is purely constitutional. And on that very basis alone, the President’s actions are entirely unsupportable. The backdrop to this extraordinary act is, of course, the forthcoming presidential elections. It is a matter of great importance as to who would secure the propaganda edge over having the telecaster in their control, even more so as President Sirisena’s SLFP itself has yet to declare which way it will blow.

But the fact that elections are due makes the ‘presidential takeover’ of the state telecaster even more egregious. That is very clear. For too long, the state telecaster has been a special target of government politicians using broadcasting time for own partisan propaganda. Guidelines for the media issued by the Elections Commission has had little impact on reversing this trend.

Neither did the interventions of the Supreme Court fare any better, despite several excellent decisions affirming that state resources and state institutions (maintained with the contributions of tax payers of all political persuasions) should not be used for the benefit of one political party alone. And so as dreadful deja vu visits us, the prevelance of political insanity has become more the norm rather than the exception and a ‘good governance’ President has to be reminded almost daily of his pledges to uphold the law.

In fact, we are reminded of old times when former President Mahinda Rajapaksa’s Media Minister ran roughshod over state media institutions and thuggishly threatened its employees.

At the time, let us recall that trade unions went to court alleging that the Rajapaksa government owed the state print media institution, Lake House, gargantuan sums with a single election campaign exceeding Rs. 40 million. So these antics hide a grim truth. These state institutions are run with tax payer funds which are manipulated and abused by politicians.

Financial tabs owed by state media for political propaganda

Consequently each time that a new Government comes into power, we have this unseemly dance taking place regarding massive bills owing to state media institutions by politicians of the previous regime which its successor refuses to pay. When the United National Front (UNF) administration headed by Ranil Wickremesinghe ‘co-habited’ with the Peoples Alliance Presidency of former President Chandrika Kumaratunga following the general elections of December 2001, one contentious issue was this. The Rupavahini Corporation and the Sri Lanka Telecom (SLT) argued over who should carry the bill of Rs 2.8 million owing to Rupavahini from SLT for the live satellite broadcast by President Chandrika Kumaratunga during elections.

Both institutions refused to carry the tab on the basis that the speech was political and propagandist in nature. Similarly, the print state media, Lake House sued the SLFP for the recovery of Rs 43.4 million as unpaid bills for print of propaganda material. These bills became even more astronomical after the unexpected Rajapaksa defeat in 2015. That manifestly ugly history was the reason why media advocates had been urging for decades that radio and television broadcasting by the state should be subject to necessary changes in the relevant laws to guarantee the independence of governing bodies and editorial independence.

By law, state media institutions should be supervised by boards comprising trustees of the public interest, who have security of tenure and are appointed independently. That same independent process must apply to the issuing of licences to private telecasters. As we recall, the Supreme Court warned notably more that twenty years ago, when striking down a proposed broadcasting authority which was structurally controlled by the state to the extent that it was not independent, that “In this area, a government is a trustee for the public; its right and duty is to provide an independent statutory authority to safeguard the interests of the people in the exercise of their fundamental rights. No more, no less. Otherwise, the freedoms of thought and speech, including the right to information will be placed in jeopardy.”

Unfortunately however, ensuring these fundamental legal reforms was not a ‘yahapalanaya’ priority though certainly, a fair degree of balance was brought into the functioning of the state print and electronic media. So as political tempers exacerbate and the political mood intensifies, we are back to familiarly miserable dog fights between competing political interests on who controls the state media. With the President blatantly exceeding his constitutional mandate and his spokesman offering untenable explanations while suppressing barely concealed amusement, these are far from promising signs for the future.

Who was it who said that, ‘the more things change, the more they remain the same?”

Courtesy:Sunday Times