Why is the Government so resistant to establishing an independent broadcast regulatory body in compliance with the 1997 guidelines laid down by the Supreme Court?


Kishali Pinto -Jayawardene

Speaking at the Homagama Divisional Secretariat this week, President Ranil Wickremesinghe effortlessly recasted the currently heated debates on Sri Lanka’s proposed Broadcasting Regulatory Commission Bill as a choice between ‘reasoned regulation’ and ‘giving the media the licence to commit arson.’ But in going to the aid of his embattled Media Minister in this manner, he does himself the greatest injury, no more and no less.

Deliberately devious speech by the President

What we have here is a fundamentally bad Bill that gives the Government the freedom to establish a so-called ‘Commission’ which is not a regulatory body per se but a political creature in every way size, shape or form. That simple fact cannot be just glossed over by the President asking as to ‘why everyone is worried about the Bill?’ He has claimed that this is a set of broadcasting standards relevant to the media and in regard to which complainants offended or harmed by malicious reporting may approach the regulator.

But that claim is simplistic at best. In fact, this brings a basic question into play. Has the President actually read the Bill? Or does he go by whatever silly fluff his media team proffers to him? Even if the full purpose of the Government was unambiguously to enact a Bill that would ‘tame’ the broadcast media, this draft is so utterly bad, so full of mistakes (legal and grammatical) and so clumsy as to defeat that very purpose.

Even the Government’s staunchest supporter may grumble as to why its clauses could not have been inserted with a tad more ‘balance’ or finesse so that the document could be taken more seriously. As it stands, the contents look like the mad scribblings of a particularly servile ministerial acolyte who is entirely unfamiliar with the English language and the law alike, (‘committee’ is spelt ‘commettee,’ the year of enactment of the Telecommunications Act is missing as are crucial interpretation sections).

Capacity and competence of state agencies

In contrast, the Anti-Terrorism Bill and the Anti-Corruption Bill, though highly problematic in many respects as observed in these column spaces, are strategically so. Their clauses do not present the appearance of being inserted as erratically as the Broadcast Regulatory Commission Bill. There is some confusion as to whether this document had been vetted by the Legal Draftsman’s Department or not.

The Bill has no LDO reference no but reports abound that the draft had indeed been sent to the LDO.

If so, then the capacity and competence of the LDO is called seriously into question. In any event, when ministerial sub-committees release legal drafts to the public at large, should not these first pass the scrutiny of the LDO and be scrutinized by the Department of the Attorney General?

What is the point of these two Departments functioning at all when ministers sporadically release Bills with nary a thought as to the legality and legislative rigour of their contents?

So to return to the Homagama remarks, the President complained that his Government and Ministers were being accused of trying to establish a dictatorial regime like North Korea. He protested that he had abolished criminal defamation and that his commitment to media freedom and the right to freedom of expression therefore could not be called into question.

President Wickremesinghe also pointed to communal tensions being aroused in regard to land disputes associated with the historic Kurundi Maha Viharaya in Mullaitivu and the ancient Thiriyaya temple in Trincomalee.

The constitutionally vetted blueprint of 1997

These complaints formed the basis for a rather extraordinary pronouncement to the effect that, if the electronic media was slandering him in this way, what recourse would an ‘ordinary citizen’ have against media attacks?

But as much as concerns may be justifiable about the communal character, politically subverted nature and lack of ethics of broadcast reporting, that is not the core issue. Rather, it is about the Government attempting to foist a politically driven broadcast ‘regulatory’ Commission on the public.

Enforcing standards on the broadcast media through an independent regulatory body does not spring out of thin air for Sri Lanka. There is a constitutionally vetted blueprint already in place in the form of the 1997 Broadcasting Authority Bill (Special) Determination) by the Supreme Court which the drafters of this absurd document have blithely ignored. Moreover, a hefty body of work on regulatory standards already exists in Sri Lanka which may be looked at for guidance.

President Wickremesinghe’s triumphant point that, ‘tomorrow, the Minister can cancel all the licences issued to operate a broadcasting licence under the existing law’ and so, ‘why is the media protesting about this Commission’ must be set straight. The 2023 Bill proposes an annual issuing of licences based on conditions issued by a political body linked to a process of spurious ‘investigation’ by its equally political committee.

‘Annual licensing’ and the political whip

This is quite distinct from the current process whereby, though licences are issued by the Minister, cancellations are rare even though they have been known to happen. Importantly no ‘annual’ licensing is enforced. Under this Bill, it does not require much imagination to envisage such ‘annual’ scrutiny being transformed into a stick which the Government will wield with might and main over ‘disobedient’ media. None of that is possible in the existing law.

And to turn the President’s complaints upside down and inside out, even conceding that the lack of ethics of the broadcast media are accepted without demur, why is the Government so resistant to establishing an independent broadcast regulatory body in compliance with the 1997 guidelines laid down by the Supreme Court? We already know the answer to this question but it is still worthwhile asking nonetheless.

The reasoning of the Court may be ‘inconvenient’ but the political establishment does not have the luxury of ignoring court decisions. That Determination was handed down by a Court at the very height of its considerable constitutional authority, holding the scales steady for citizens against the overriding power of the State. The judges scorned compromises that even indirectly infringed constitutional liberties. In this Determination, quoted with approval in other Commonwealth jurisdictions, the Bench commented adversely on the ‘chilling effect’ of annual licensing.

Adhere to our judicial guidelines first

On the one hand, a regulatory authority should have that discretion, it was reasoned as ‘the interests of the public at large’ needs to be safeguarded and a licence is only a ‘temporary privilege.’ This ‘annual’ renewing of licences may ‘inhibit the investment of large amounts of money in establishing stations,’ it was observed.

On the other hand, this was exactly why that authority should be independent, the Court said.

But to be clear, the broadcast media itself cannot scorn content licensing of any kind as an affront to freedom of expression. The 1997 Supreme Court Determination made that abundantly clear in the context of limited airwave frequencies, unlike in the case of the print media. Both the Government and Sri Lanka’s broadcast media must therefore properly read this Determination in full.

We do not have to sprint with glee to examine the British broadcast regulatory guidelines as President Wickremesinghe announced, though comparative assessments are always useful. But first, drafters must look at what has evolved within this country and adhere to the minimum of those standards.

Let the President instruct his Ministers to do this first and then inflict political rhetoric regarding ‘bad media’ on the public later.

Courtesy:Sunday Times