The Sri Lanka Broadcasting Corporation has several broadcasting services, one of which is called the Educational Service. In early 1994, a committee was appointed by the then Minister of Information and Broadcasting to study the possibility of introducing a new channel for the Education Service. Accordingly in June 1994, the Non Formal Educational Programme (NFEP) was launched by the Sri Lanka Broadcasting Corporation with great pomp and fervour.
The programmes were focused on a very wide range of topics such as human rights, ethnicity, sociology, legal and medical issues, arts and culture, politics, current affairs, the environment and women's rights.
The NFEP was estimated to cost Rs. 4.5 million annually. Mr. Thilak Jayaratne, considered as one of the foremost electronic media practitioners in the arena of non-formal programmes and controller of the Education Service since 1988, was the prime designer of the NFEP.
A special team of thirty-five electronic media persons was trained under Mr. Jayaratne in order to work out the NFEP.
The NFEP commenced before the August1994 Parliamentary General Election and continued thereafter. By a Cabinet decision taken on 26.10.94, the new Government approved a statement on "PA Government's Media Policy" which included the following:
"All electronic media will be granted the right of gathering and disseminating news. We urge the state-owned and private electronic media to present balanced coverage of news, exercising freedom with responsibility. The Government will extend its co-operation to media and journalists' associations to work towards formulating a charter that will set acceptable parameters of news programmes in all electronic media.
"Media personnel in the state sector media institutions will have the freedom to decide the content of news bulletins and news feature programmes based primarily on the news worthiness of events. We will not use state owned media for partisan political propaganda."
This cabinet decision was conveyed to the Secretary, Ministry of Information and was circulated by him to the relevant officials for implementation. By letter dated 27. 12. 94, the Minister of Media, Dharmasiri Senanayake appointed Mr. Thilak Jayaratne as a member of a Committee to look into improving the economic condition/status of journalists.
The position of Director, Education Service fell vacant on
1. 1. 95, as a result of the then Director Mr. Iyadurai having obtained leave prior to retirement. On 11. 1. 95, Mr. Thilak Jayaratne was appointed Acting Director of the Education Service.
On 6. 2. 95, subsequent to controversial issues being raised about the industrial policy of the PA Government over the Programme "Kamkaru Prajawa", the NFEP was suspended and songs were broadcast instead.
Subsequently, it was announced over the SLBC News Bulletin that Mr. Nelson Jayaweera who was the Acting Director Audience Research of the SLBC had been appointed to cover the duties of the Director, Education Service.
It was later reported that Mr. Thilak Jayaratne had been removed from the post of Acting Director (Education Service). Due to strenous protests of the staff, Mr. Nelson Jayaweera was then relieved of his duties in respect of NFEP and the Education Service, placed directly under the Director General of the SLBC.
Thereafter, the NFEP all but ceased to broadcast programmes with quality and independent editorial content.
In its judgement, the Supreme Court has held that this sudden and arbitrary stoppage of the NFEP was not justified. The resumption of the NFEP has not been ordered on the basis that by the time the case was taken up for hearing before the Court, the 1995 schedule for the NFEP had expired. The Supreme Court ordered the Sri Lanka Broadcasting Corporation to pay the petitioner a sum of Rs.15,000 as compensation and Rs. 5,000 as costs.
At present, former Acting Director of the Education Service, Thilak Jayaratne stands interdicted from service on the ground that he had sent out a questionnaire to the public on the proposed restructuring of the NFEP. Objection has been raised to the fact that Mr. Jayaratne had directed that the answers to the questionaire be sent to a media watch group known as Vibhavi (Centre for Alternative Culture)
When the Sri Lanka Broadcasting Corporation all but stopped the Non Formal Education Programme (NFEP) from going on the airwaves in February 1995, it thought that it had good reason for its decision. The NFEP had violated the cardinal principle "thou shalt not criticize thy own master" to which all state media are expected to pay obeisance to.
It had actually dared to subject internal SLBC policy to public criticism and discussion. In its programme "Sutharathi" (Voice that carries knowledge) of 6. 2. 1995 broadcasters had remarked that the NFEP was of a high quality and had set an example to the electronic media.
However, it was also pointed out that though the NFEP had sought to retain its independence both before and after the new Government came into power in August 1994, now there were obstacles to this progress. Should producers of the NFEP proceed as independently as before or should they become puppets of the Management? Listeners were invited to contribute their views on these issues on two specified telephone lines that were kept open.
"Sutharathi" was not the only NFEP programme that had invited the wrath of the SLBC bureaucracy. Earlier in the year the programme "Pasu Vimasuma" (Review) dealt with politics and the media. It made note of political pressures being brought on the media before the 1994 General Elections and referred to efforts being made to establish a free media "There are high expectations of the Government in that they would deal fairly with the media. The fear is that though the Government might desire media independence, this might be sabotaged by inept political appointees in high places", broadcasters of the programme commented.
Again, the "Puwath Adahorawa" (News Half Hour) programme of 5. 2. 1995 had speculated regarding the reasons behind the resignation of former North-East Governor, Lionel Fernando, from the Governmental delegation meeting with the Tigers for peace talks in 1995. But what finally made SLFP bosses lose their cool was a programme titled "Kamkaru Prajawa" (The Working Community) which was broadcast on 6. 2. 1995. This programme focused on the Kundanmals workers strike and included a dialogue between Minister of Industries C.V. Gooneratne and the workers. Several workers were heard complaining that Minister Gooneratne had been very receptive to their grievances before the elections but the position had changed now. The Minister in turn replied that this was not his responsibility but rather belonged to the Labour Minister, Mahinda Rajapakse. There were indications that the Labour Minister would also be interviewed but suddenly the programmes were stopped and songs were broadcast instead. Thereafter, the NFEP had come virtully to a halt with all programmes containing discussions of controversial issues being replaced by bland and uninteresting political chit chat.
Were the stoppages of these programmes justified? Wimal Fernando, a listener to the NFEP and also a participant in that he had taken part in programmes as a resource person on several occasions went to the Supreme Court in 1995, arguing that his fundamental right of freedom of expression had been infringed. The SLBC on the other hand contended that criticisms made of the SLBC its administration and its management through the NFEP were "irrelevant, inappropriate and unacceptable" with the NFEP staff using the program to air their own personal views.
Moreover, the SLBC claimed that the contents of the disputed programmes exposed them to civil and criminal defamation and that there was widespread public discontent with the NFEP as was evidenced by a number of complaints received.
Two weeks ago, in a judgment that advances the right to freedom of expression within the ambit of Sri Lanka's human rights jurisprudence, the Supreme Court refused to accept these reasons as adequate for the "Sudden and arbitrary stoppage of the NFEP."
Justices, Dheeraratne and Wijetunge agreeing with Justice, Mark Fernando who delivered the judgment stressed that the Government's Media Policy as boldly announced in the PA Manifesto was intended to encourage criticism in the public interest in order to expose shortcomings.
The programmes that were objected to, discussed issues that were relevant and of immense public interest. Industrial unrest and the reasons for the resignation of a senior public official from ongoing peace talks were all subjects of legitimate public discussion. The Government's Media Policy thus justified such programmes.
The Supreme Court could find nothing defamatory in the content of the disputed programmes. Neither did is find merit in the argument that there was danger in the public being allowed direct access by telephone to the NFEP broadcasts, pointing out that such calls were reportedly scrutinized before broadcast.
But should the SLBC allow criticism to be made of itself in its own broadcasts?
"It is well to remember that the media asserts and does not hesitate to exercise the right to criticise public institutions and persons holding public office. While of course, such criticism must be deplored when it is without justification, the right to make and publish legitimate criticism is too deeply ingrained to be denied", warned Justice Mark Fernando.
This would apply not only to the Government but to the media itself, externally and internally. Justice Fernando pointed out that the criticisms of the SLBC Administration complained about were all couched in moderate language. While it might have been preferable that these issues had been raised internally instead of through a public broadcast, such a default should have at the most led to a reprimand of the officer concerned and future amendment of the programmes instead of a complete stoppage of the NFEP.
"The baby should not have been thrown out with the bath water", quipped the Court.
The Supreme Court has however been demonstratably cautions in its interpretation of the right to freedom of information within the context of free speech in what is now popularly referred to as the "SLBC Case". Justice Mark Fernando gives the right to protest against a stoppage of broadcast, not to a mere listener but only to a participatory listener. Here, the petitioner himself had participated in NFEP programmes, and was not just passively receiving information. Stopping the NFEP therefore violated his freedom of speech in that it prevented further participation by him. Justice Fernando rejects the broader argument that freedom to speak implies and includes the right of the recipient to recieve views and ideas or information sought to be conveyed.
As Justice Mark Fernando has pointed out, our Constitution does not guarantee the right to information by itself. This is unlike in other countries where upholding of the right has led to some interesting situations. In Ireland the European Court of Human Rights ruled in the Open Door Counselling Case (1992) that a law which prohibited family counsellors from giving information on abortions outside Ireland was illegal. In essence, if the right to information pure and simple is allowed, it would prohibit a Government from preventing a person from receiving any information that others may be willing to impart, subject to reasonable limitations imposed by law.
If this right is allowed in Sri Lanka, a listener to a radio broadcast, a viewer of a television programme or a reader of a newspaper would have the right to object of that particular news medium on unjustifiable grounds, whether by the Government or by the management itself.
Several previous cases in Sri Lanka have discussed the right to information in the context of media rights even though the present case is the first in that it involves a radio broadcast. In Visuwalingam V. Liyanage (1984) for example the Saturday Review which was a newspaper dealing with controversial political issues had been banned by the Competent Authority at that time. The Court upheld the right of a contributor to the newspaper to protest against the banning, even though it was ultimately decided that the banning was lawful in view of the unsettled conditions prevalent in the country.
Incidentally, it should be noted that the new constitutional provisions suggested by the Justice Ministry include the right to information pure and simpliciter. The Media Law Reform Committee which released its report recently has recommended an even wider formulation of the right akin to that which is set out in the International Covenant on Civil and Political Rights, Greater judicial flexibility in intrepreting these rights would be inevitable if these recommendations are implemented.
In any event, the recent judgment in the SLBC Case has important implications for the media in general and the state media in particular. The Free Media Movement has already referred to the Supreme Court decision to call for structural changes within the SLBC. It serves as a timely warning to state media institutions to be careful as to how they crack the whip.
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