Three petitions against polls chief

By Laila Nasry

The petitioners, Rohan Edrisinha, Sunanda Deshapriya, and Varuna Karunatilleke, all from the Centre for Monitoring Elections Violence (CMEV), citing Polls Chief Dayananda Dissanayake, Sri Lanka Rupavahini Corporation (SLRC) and its Chairman W.P.S. Jayawardena among others as respondents state the Elections Commissioner has failed to appoint a Competent Authority for Rupavahini which they believed had not complied with guidelines issued by the commissioner in terms of the 17th Amendment.

Two of the petitioners said they had brought to the commissioner's notice the powers vested in him under the 17th amendment but the Elections Commissioner had informed them that he would act only after he sought legal advice.

The petitioners urged court to issue orders directing the Elections Commissioner to appoint a Competent Authority for Rupavahini and to issue directives to the Rupavahini in terms of the amendment.

In the fundamental rights application filed by Mr. Karunatilleke it is stated that biased coverage by the State media organisations had impacted negatively on his ability to form independent and accurate opinion with regard to the policies and achievement of the contesting candidates of political parties. 

He said the alleged use of state resources, including human resources, for the benefit of one political party constituted unequal treatment and political discrimination which violated his rights under Article 12(1) of the Constitution which guaranteed the Right to Equality.

Polls Chief's right to interpret

It is only now that one can fully sym- pathise with Alice and her feelings of bewilderment when she found herself groping in Wonderland. This is exactly the feeling that grips this columnist in the face of particular positions taken not so much by our politicians (about whom one has naturally passed beyond bewilderment) but by public officials from whom citizens of this country have a right to expect exceedingly high standards of public rectitude.

This bewilderment is occasioned by none other than some extraordinary assertions by the Commissioner of Elections, as reported in the state media this week. Undoubtedly a beleaguered gentleman at this particular moment in time, the Commissioner of Elections cannot however expect norm defying positions taken by him with regard to issues of substantial public interest to pass unnoticed and uncritiqued. 

His assertion therefore that the Chairman of the Sri Lanka Broadcasting Corporation (SLBC) and the Sri Lanka Rupavahini Corporation (SLRC) have the power to withhold private electronic media licences to stations found to be violating election regulations and broadcasting political propaganda during the ongoing election campaign under their respective Acts deserves particularly careful analysis. Section 44(1) of the Sri Lanka Broadcasting Corporation (SLBC) Act No 37 of 1966(as amended) and Section 28(2) of the Sri Lanka Rupavahni Corporation (SLRC) Act No 6 of 1982 (as amended) have been cited by Commissioner Dayananda Dissanayake for this purpose.

The Commissioner had reportedly made these assertions this week during discussions that he had with a government trade union delegation which had met him in order to make representations about television coverage biased towards the Opposition by the TNL station in particular. One can empathize with the Commissioner, caught as he is in a Catch 22 situation where his guidelines to radio and TV stations are ignored with equal flamboyance by a state media that is violently pro-government and some private television channels that are violently anti-government. 

However, his solution that the former should monitor the latter and worse, withhold licences at their whims and fancies cannot but attract severe criticism for its violation of the fundamentals of fit and proper regulation of broadcasting.

The particular sections cited by the Commissioner under the respective SLBC and SLRC Acts related to the power given to the Minister to issue licences for the establishment and maintenance of private broadcasting and television stations, which power may be exercised by the Minister in consultation with the respective Corporations. The Commissioner's invocation of these sections however is unfortunate for extremely good reasons. 

These reasons were elaborated very well in a particularly classic Determination of the Supreme Court of this country in 1997 when a Bill seeking to establish a Broadcasting Authority was challenged by ten petitioners comprising media activists and ordinary citizens. The Supreme Court, headed by the Chief Justice G.P.S. de Silva and comprising Justices A.R.B. Amerasinghe and P. Ramanathan, struck down the Bill as violating the rights to freedom of thought, conscience and religion, the right to equality under the law and the right to freedom of speech and expression of the petitioners, thus necessitating the Bill being brought before the people at a Referendum as well as being passed by a special majority in Parliament. The Bill was thankfully then jettisoned for all time. 

Why the Court found the Bill to be unconstitutional provide excellent arguments however as to why the current reasoning of the Elections Commissioner on the regulation of the private electronic media by the public electronic media cannot be tolerated.

The Determination affirmed the principle that airwaves/frequencies, given their pervasive and immediate reach and limited nature, are public property held in trust by the government for the people. 

Therefore, its regulation must be with regard to particularly stringent standards of fairness and must be independent of government. 

Neither should the state electronic media institutions be given primacy over the private channels in any manner whatsoever. Accordingly, those provisions of the Bill that resulted in SLBC and SLRC being treated with special favour as opposed to the private media channels, were found to violate fundamental principles of equality. 

The proposed Authority meanwhile was outlawed on the basis that it was an 'arm of the government' and was susceptible to unbridled interference by the Minister. 

Interestingly, the Court struck down those provisions of the Bill which provided for the Chairman of the National Film Corporation to sit as an ex officio member of the Board of the Authority and decide whether the activities of the private licence holders were detrimental. 

As even the meanest intellect would perceive, the clear conflict of interests argument accepted in that instance applies with far greater force to any kind of reasoning which holds out that the heads of state media institutions can influence the withholding of licences to private broadcasters.

This is all not to say that the public and private electronic media should not be subject to basic standards of impartiality, specially during election times. Hitherto, attempts to bring about a uniformly regulatory regime have not been notably successful, owing to the highly confrontational manner in which this is sought to be done together with the clumsy aggravation of the divide between the public and the private media. One particular attempt was just prior to the 2000 Parliamentary Elections when a draft Bill amending the Parliamentary Elections (Amendment)Act No 1 of 1981 was proposed, laying the responsibility of stipulating radio or television time afforded during an election campaign to registered political parties and independent candidates, on the Elections Commissioner and importantly making provision for any registered voter to apply to the District Court in the event of the stipulations being contravened. 

The proposed law also made it an offence to disperse false statements which could influence election results. 

The law was not however, carried through to the legislative stage.

Unlike this proposed Bill, the Seventeenth Amendment does not give powers of enforcement to the Commissioner of Elections if his guidelines are contravened. 

As pointed out in this column on an earlier occasion, though enforcement powers of the Commissioner were present in earlier drafts of the Seventeenth Amendment, these had been withdrawn at the time it was brought before the House. 

This defect continues to be an overriding obstacle impeding the Commissioner's authority with regard to regulation of the private electronic media. Whether this lacuna could be filled by advising the heads of the state media institutions to withhold licences of private broadcasters who are as partisan as the former, is however problematic and indeed extremely dangerous, reasoning.