Focus on Rights

The right to vote and its fragile safeguards
When the Supreme Court, in May 1996, decided that the sudden and arbitrary stoppage of a Non-Formal Educational Programme, aired by the Education Service of the Sri Lanka Broadcasting Corporation, (SLBC), violated the freedom of speech of a participatory listener, there was a particular logic to its finding.

The Court, (in a thoughtfully reasoned judgment of Mark Fernando J. with whom Dheeraratne and Wijetunge JJ. agreed), quoted with approval, decisions of the Supreme Court of India, which affirmed that, "Broadcasting media, by its very nature, is different from press. Airwaves are public property....it is the obligation of the State .....to ensure that they are used for the public good." (Fernando vs the SLBC, 1996 (1), SLR, 157).

As famously explained by the US Supreme Court, frequencies available for television and radio broadcasts are so limited that only a handful of persons can be allowed the privilege of operating on them, unlike in the case of newspapers. Accordingly, a greater duty devolves on those who have the former privilege, to ensure that it is not abused.

These principles were echoed in later decisions of Sri Lanka's Supreme Court. Most particularly, the seminal decision in the 1997 Broadcasting Authority Bill case, (by a bench comprising Chief Justice G.P.S. de Silva, Amerasinghe and Ramanathan JJ.), articulated how a broadcasting regime ought to be regulated. Independence from the government of the day was a key concern.

A further underlying thread, affirmed in numerous decisions of the Supreme Court in the early and mid nineties, is that public property is held by any government, (necessarily temporarily in power), in trust for the people. Abuse of public, (or state), resources can be clearly differentiated from the abuse of private resources. Applying these principles to the media, for example, the government has a clear duty in respect of the state media, inasmuch as it is funded by the tax money of all citizens who are of widely varying political persuasions.

In contrast, obligations imposed on the private media flow from a different logic, wherein political partisanship will result in the diminishing of its own credibility and ultimately, its own profits. In that process however, no state resources are abused.

In sum, these principles have been given practical meaning in the 17th Amendment to the Constitution, given that the use and abuse of the media assumes greater significance during election time. The Elections Commissioner is duty bound to issue guidelines on fairness and impartiality to all media. And the general reminder that there is a moral duty on all media in this country, (particularly on the electronic media, state and private), to abide by those guidelines, is without question.

However, the enforcement powers of the Commissioner of Elections, when infringement of guidelines occur, are strictly limited to the state electronic media, in respect of whom he may appoint a Competent Authority with powers and functions, as defined in enabling Act, No 3 of 2002. One might well ask as to why such a power had not been given to the Commissioner, in respect of the state print media, (Lake House) as well here again, the difference is in the nature and extraordinary reach of the airwaves, in respect of which the State is put under a very strict duty.

The fact of the matter is, of course, that no political party in this country has respected these principles in their management of the state media. Notwithstanding feeble attempts to distinguish themselves from the opposition People's Alliance, the United National Front (UNF), also persisted in the practice of appointing absolute political loyalists to the helm of these institutions when they came into power in 2001. In that sense, if the Ministry of the Media had not been taken over by President Kumaratunge last year, the provisions of the 17th Amendment may well have been invoked against the United National Front. As it is, however, there is an irresistible feeling of deja vu in the current reality.

Regardless of politics however, the Constitution, (by way of the 17th Amendment), imposes an objective duty on the Commissioner to act if there is abuse shown. In this context, the views of the current Minister of Media, appointed by President Kumaratunga from her own party, becomes of little or no account. The duty is the Commissioner's and the Commissioner's alone. It is heartening therefore that, if the need is so proved, the Commissioner has declared his willingness to use his constitutional powers in no uncertain terms.

It is also good that some civil society bodies have agreed to undertake the practical task of monitoring such abuse as well as the abuse of public property in general, though the actual enforcement powers of the Commissioner in respect of the latter is more imprecise, (a defect in the 17th Amendment long pointed out). However, the fact that the Commissioner has stated that, in terms of Article 104B(4), he will take into his custody movable or immovable public property if he finds that such property is being misused by any political party, is extremely encouraging.

So too, the consensus reached between the Commissioner of Elections and the National Police Commission this week, that all police officers released for election work will receive instructions directly from the Commissioner under Article 104C of the 17th Amendment. This complements the independent stand taken by the National Police Commission on the issue of police transfers requested by the IGP. It is relevant also, that Article 104D of the 17th Amendment additionally confers authority on the Commissioner, to recommend to the President, the manner in which armed forces may be deployed, if need be, for the holding of a free and fair election.

Abuse of state resources, (whether concerning the media or the police), is however not the only factor common to the two parties. The, (yet un-contradicted), disclosure in the daily newspapers late this week, that the UNF has nominated three politicians, presently under investigation for alleged threat, intimidation or assault of public service officials, to contest the polls from Kalutara and Ratnapura, is also an indication of how pitiful our electoral choices will be. The past record of the People's Alliance in this respect, needs no reminding.

As far as election malpractice is concerned, one safeguard again stems from the Supreme Court in the Egodawela case (reported as Mediwaka vs Dissanayake (2001, 1SLR, 177), where Mark Fernando J. (with Wadugodapitiya and Ismail JJ agreeing), purposively construed the relevant sections of the Elections (Special Provisions) Act No 35 of 1988, read with the Provincial Councils Act No 2 of 1988, to protect the right to vote.

Thus, the Commissioner of Elections can annul a poll and order a re-poll if election malpractice, (including the threatening and intimidation of voters), results in the preferences obtained by the candidates being affected and therefore, the result of the elections. Interestingly, the Court cautioned that even though a repoll might have caused considerable delay in determining the overall result for that area, (in this case, the Kandy District), delay or inconvenience could not be used as an excuse for depriving voters, however small their number may be, of their vote.

Cumulatively, these are some of the safeguards, fragile as they are, that Sri Lankan citizens can claim, when they vote in April. However, the basic question as to whom one can vote for, given the present chicanery of all political parties, is a different matter altogether. For that question, one has not, (and may never have), an effective answer.

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