As pointed out repeatedly in these column spaces, the doctrine of Public Trust as judicially articulated, is no strange phenomenon to Sri Lanka.
From the early nineteen nineties onwards to the late nineteen nineties, the Supreme Court articulated this concept notably in regard to the use of public property, including most importantly the use of television and broadcasting frequencies. During this period, it was most clearly pointed out by the Court that public property being maintained as it is by the tax moneys of all citizens with different political persuasions cannot be abused by one political party alone for its party propaganda. Later, from 1999 to about 2005, the doctrine lapsed into a certain degree of disuse if not deliberate negation. Its re-emergence after a few years following the induction of the Mahinda Rajapaksa Presidency has excited differing opinions as to the extent that the judiciary appears to be trespassing on the preserves of the executive and the legislature. Extensive scrutiny of this purported judicial overarching belongs however to a different forum than the limited spaces of this newspaper column.
adventurism in licensing telecasting
For the moment therefore, let us limit ourselves to the applicability of the Public Trust doctrine to the latest adventurism on the part of the government in trying to regulate private television stations in a patently obnoxious manner. The regulations, gazetted under the Sri Lanka Rupavahini Act, No 6 of 1982 apply to all private television stations, including cable based stations. Problematically, the regulations empower the Minister to cancel a licence based on, programme content which is, among other things, 'detrimental to the interests of national security' or 'morally offensive' or 'indecent' (Regulation 13(e)). Licences to operate a particular channel could be suspended not only on grounds of national security but also on an unacceptably vague ground of 'in the interest of the public' (Regulation 19). Every satellite or cable television operator is meanwhile duty bound to re-broadcast at least two of the channels broadcast by the SLRC without any addition or alteration (Regulations 24(b) and (c).
A problematic 'consultative committee'
Further, a 'Consultative Committee on Television Broadcasting' established under Section 29 of the Rupavahini Act is empowered to monitor due performance with the regulations, evaluate the eligibility of a licence holder for renewal and recommend the revocation of the licence. Section 29 merely states that the Minister may make regulations for the 'purposes of the establishment of one or more consultative committees to advise the Corporation on matters relating to television broadcasting. There is no requirement as to what the qualifications of these members should be. Instead, the guiding principle seems to be ministerial discretion which in Sri Lanka, means exactly nothing.
Applicable legal principles
The legal principles that ought to apply in this regard are, of course, perfectly clear. In 1997, the constitutionality of a proposed Bill to establish an Authority for the purpose of regulating the establishment, maintenance and licensing of Broadcasting Stations in Sri Lanka was put in issue before the Supreme Court. The Bill provided for members to the proposed Authority to be directly appointed by the Minister responsible for the media and empowered the Minister to issue guidelines for operation by licencees in reference to programmatic and policy content.
In ruling that the Bill was unconstitutional, (Determination Re The Broadcasting Authority Bill, S.D. No 1/97 - 15/97, delivered on May 5 1997), the Court warned that; "the ultimate guarantor that the limited airwaves/frequencies shall be utilised for the benefit of the public is the State. This does not mean that the regulation and control of airwaves/frequencies should be placed in the hands of the government in office for the time being. The airwaves/frequencies, as we have seen, are universally regarded as public property. 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."
State electronic bodies
cannot be 'privileged'
An important part of this public trust was that state bodies such as the Sri Lanka Broadcasting Corporation (SLBC) and the SLRC could not be treated differently from private stations and could not be given 'preferential treatment.' The composition of the intended Authority was judicially declared to be invalid in that it did not reflect the requirement of independence from government control.
Freeing public and private broadcasting from
On an application of these well established principles, it is clear that the current regulations pertaining to licencing of television broadcasting fails on the most fundamental requirement of independence from governmental control in terms of substantive monitoring of programme content as well as the undue privileging of state television channels. The regulations will most certainly be challenged in Court.
However, the audacity of the government in attempting to justify these regulations on the cosmetic basis that they will 'help' telecasters and further the public interest needs to be dealt with in the public sphere. Such audacity needs to be comprehensively dismissed. A duty lies on all of us to ensure that our public as well as private broadcasting regime does not function according to the whim and fancy of politicians, however hard this may be in these most difficult of times.