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With a woeful history of repressive state regulation of the media still fresh in our collective memory, the ‘Yahapalanaya’ Government’s announcement this month that it will set up an ‘independent authority to regulate the electronic media’ caused many to jib nervously and shy away.

Unconvincingly persuasive explanations
Apparently the proposed authority would be vested with the legal power to determine complaints against the electronic media. As explained charmingly enough by ministerial worthies, the ‘Government will not be involved with the process’ and this was only due to the fact that the electronic media itself had requested for such an authority.

Sri Lanka is however no stranger to persuasive explanations which, when taken to the stage of determining policy, often rebounds to the detriment of the country. The unfortunate fate of the 1997 Broadcasting Authority Bill is a good illustration thereto. Scarcely did the dew dry on the exuberant promise of the Chandrika Kumaratunga Presidency when her administration brought this obnoxious Bill before the House.

The Bill sought to establish a Board of Directors which was top-heavy with ex-officio government members including Secretaries of Ministries. The Minister was given unfettered discretion to appoint the rest. Adding insult to injury, the Bill stipulated that any of the appointed members including the Chairman may be removed from office by the Minister without any cause assigned. This Authority was given the power to issue licences to radio and TV stations. But the conditions under which this licensing power was exercised were clearly contrary to law.

Lessons of the past
For example, the Authority was mandated to look at the “current needs of the broadcasting industry and satisfy itself that the applicant is technically, financially and professionally competent” The wording was vague, affording unlimited discretion to the Authority. Licences must be applied for annually and the Authority may suspend or cancel any licence issued if its directions are not complied with. No notice was required and no procedural safeguards were specified.

A right of appeal was provided to the Court of Appeal though this was not sufficient as a protection by and of itself. The common practice in developed jurisdictions is that the issuance and removal of licences must be only after a public hearing and with extensive natural justice safeguards. Meanwhile, this Bill gave the Minister the power to issue general or special directions to the Authority. It was the Minister who appointed the Appeals Tribunal which was tasked with looking into complaints regarding issuing of licences, content of programmes and so on.

Given its highly intrusive content, it was unsurprising that the Supreme Court issued a stern reprimand to the Kumaratunga administration in unequivocally ruling the Bill as unconstitutional. The Court reminded the Government that “the ultimate guarantor that the limited airwaves/frequencies shall be utilised for the benefit of the public is the State.’

As the Justices acerbically warned however, this principle 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. It was observed in an injunction that remains valid decades later that ‘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.”

Discrimination cannot be tolerated
An important part of this public trust was that state bodies such as the SLBC and SLRC could not be treated with more favour than private broadcasting stations. The Supreme Court’s rationale at the time was cogent; ‘such distinctions drawn in terms of expected standards of performance as well as accountability for the maintenance of these standards is invidious and offensively discriminatory…we have formed the opinion that there is no rational basis for treating state bodies with special favour.”

Using international legal principles, the Court pointed out that the electronic media could only be regulated in order to ensure that over-the-air communications would function efficiently in order to fully secure freedom of expression. In finding that the freedom of thought as well as the freedom of expression had been violated, the Justices informed the Government that the Bill had to be approved not only by two thirds of Parliament but also pass muster by the people at a referendum. The Bill was withdrawn from the Order Paper of Parliament and did not resurface thereafter.

This judgment is a healthy precedent to keep in mind. But let us not forget that this move of the Kumaratunga Presidency at the time was only thwarted by the Court then in the heyday of upholding public interest litigation through a Bench which boasted some of the best judicial minds in the Commonwealth. Indeed, its decision on the Bill was a key reason (among others) as to why the tone of that Presidency turned definitively hostile against the Court, leading to the politicization and ultimate decline of that institution.

Structural reforms are needed
Given this unhappy history, it is perhaps predicable that two decades later, the announcement of a government initiated regulatory body would be met with wariness rather than unmitigated delight. Ideally, such a move should have come from within the broadcasting industry, similar to the self-regulatory mechanism operational in regard to the print media.

So as the Minister of Media and his deputy winningly talk about ‘helping’ the electronic media, this Government must live up to its own promise to bring about structural independence of the state media rather than just moving a few people in and out. The state broadcaster and telecaster must be transformed into public service broadcasting units. Archaic broadcasting laws must be repealed. If the Government embarks on these structural reforms, its interest in the private electronic media may then be greeted a tad less suspiciously.

But in the absence of political will and commitment on these lines, charmingly persuasive promises made by the Minister and his Deputy just will not suffice.