Focus on Rights

Dealing with those media debates all over again
The prevailing debates about the overt bias of the state media and the (arguably) somewhat subtler bias of the private media in the run up to the November elections have a manifestly weary air about them.

One remembers not so long ago, that a bench of the Supreme Court headed by the Chief Justice advised public interest petitioners outraged by the blatant use of SLBC and Rupavahini for party propaganda to 'turn off Rupavahini and switch to another channel" if they had a problem with the coverage of the former.

The petitioners had come before court asking that the state media bodies (which are run on public funds) adhere to the spirit of the 17th Amendment to the Constitution by observing more balanced rules of coverage. That was at a time when ancillary legislation had not been passed to the 17th Amendment empowering the Elections Commissioner to appoint a Competent Authority in respect of the SLBC and SLRC if he was of the opinion that his guidelines on election coverage were being flouted.

Thereafter, though the legislation was, in fact, passed, the Commissioner had to be reminded of his constitutional duty in that respect when again another election came rapidly along. One can however empathise with the Commissioner regarding this lapse given the tremendous odds against which he is carrying on in his office particularly in view of the veritable rash of elections that he had been compelled to cope with in recent years.

His anger at the continuing absence of an Elections Commission that ought to have been appointed a while back, is now common public knowledge.
In any event, once reminded of this constitutional duty on his part, the Commissioner did, in fact, appoint a Competent Authority but only at the eleventh hour which served of little practical purpose. His actions in regard to the forthcoming elections still remain to be observed.

Meanwhile, his response to the government critique in relation to monitoring the private media has been understandably that his powers in terms of the 17th Amendment are limited to the issuance of guidelines. Enforcement of the guidelines in relation to the private media, unlike in the case of the state media that is run on state funds, is not within his control. For that, the 17th Amendment needs to be amended further. And so, the weary debates, (accompanied by the mounting hysteria of the government as opposed to the opposition spokesmen), go on.

Freeing the Sri Lankan media from these nauseatingly tired discussions is not that complicated conceptually, particularly as far as the electronic media is concerned. The law, of course, needs radical revision. The old acts relating to broadcasting and televising needs to be scrapped. As was advised by the Supreme Court in 1997, an independent broadcasting authority needs to be established that does not differentiate between standards relating to state bodies and private bodies. Its composition must reflect the elements of independence from firstly, the appointing authority, secondly, security in tenure of office and thirdly, freedom from governmental control.

Ideally, the powers of recommendation of appointment of members to such an independent broadcasting authority should be given to an independently appointed body such as the Constitutional Council rather than vested in the hands of the Minister though the act of appointment could be retained in the hands of the executive authority. This, of course, presupposes the functioning of the Constitutional Council which is also somewhat of a problematic question at this point of time given its abeyance for the past several months.

Further, in the wake of recent deadlocks evidenced between the Office of the President and the Constitutional Council in relation to the process of recommendations for appointment to other bodies such as the Elections Commission, the law setting up the Broadcasting Authority should stipulate that where there is a deadlock between the President and the Constitutional Council on the recommendations of the appointees, the President may request the Council to reconsider its recommendations for reasons stated. If after reconsideration, the Council makes the same recommendation, the person/s recommended will be deemed to have been duly appointed if the President fails to make an appointment within one
The composition of the Authority should reflect an ethnic and gender balance. Appointment of its members should be on stipulated criteria (such as experience/eminence in the field of broadcasting and non affiliation to any political party). It should be vested with the current ministerial authority in respect of constituting the governing bodies of the SLBC and SLRC and regulating their functioning.

Vitally, it is this Authority that should allocate licences to the private/community radio, not a government controlled entity. Ideally, it would be responsible for supervising the broadcasting industry and formulating regulatory/legal policy, inquiring into transgressions of the law/regulations and imposing disciplinary sanctions in the event of infringement being established as well as directing the formulation of Codes of Practice for all radio stations.

Once this essential transformation of the broadcasting sector is accomplished, attention may be given to the regulation of the private broadcasting media during election times, by the needed constitutional amendments. This may be a reality that the private media will learn to accept provided that such regulation is not intended to stifle its functioning and be used for political purposes. Currently, this is a fundamental - and very real - fear that forms the most formidable obstacle to any objective discussion.

Insofar as the 17th Amendment is concerned, perhaps further amendment of Article 104B(5) may be urged in order that a measure of effectiveness is given to the guidelines issued by the Commissioner in respect of the private media. The Elections Commissioner may thus be empowered to determine fair allocation of broadcasting time for candidates and political parties in his discretion as far as the private broadcast and telecast media is concerned.

The amendment could further, give the Commission power to move the appropriate court to censure and/or impose a fine on such station and/or apply for a restraining order on such station restraining the continuance of such contravention in the event of noncompliance with its directions.

However, the prospects of effective legal reform accompanied by genuine commitment towards broadbased reform on the part of policy makers as well as civil society and including the media industry itself, is not yet forthcoming. What we have in the interim are these nauseating debates that continue to our individual and collective detriment. Can one be blamed for being thoroughly and absolutely sickened by it all?

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