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The unsightly and itchy rash of ‘bad laws’ being proposed by the Sri Lankan Government seems to be never-ending.

The Government’s unconvincing explanations

Hot on the heels of the appallingly crafted Anti-Terrorism Bill and the Anti-Corruption Bill comes a proposal to establish a Broadcasting Regulatory Commission replete with major contradictions. A fundamental flaw goes to the root of the independence of the proposed Commission which I shall return to later. The Minister of Justice has been quick to frame this merely as a ‘proposal’ by a cabinet sub-committee and not a ‘Bill’ as such.

However Sri Lankans are familiar with the manner in which proposals’ suddenly emerge in the form of ‘Bills’ overnight. These Bills are rushed to be placed on the Gazette and thence, through a compliant Parliament. The 2018 Counter-Terrorism Bill proposed by the ‘yahapalanaya’ Government was one such example. Its adoption into law was prevented only by the draft being ‘leaked’ to the media leading to a defensive roll-back by its originators.

This time around, an unconvincing explanation has been advanced that broadcasting licences have not hitherto been issued with ‘due process.’ Thus, the Government is merely seeking to ‘regulate’ that process and not to ‘control’ the broadcasting media. But that justification is wholly ridiculous, to be blunt, when a specific legal regime already exists. If that regime had to be more tightly governed to bring runaway broadcasters to heel, specific amendments could be made to relevant laws.

Links between political ‘kings’ and communalistic broadcasters

These include the Sri Lanka Broadcasting Corporation Act No 37 of 1966 (SLBC Act) and Sri Lanka Rupavahini Act No 6 of 1982 (SLRC Act). But the point is that, it is not the law which is at fault. On the contrary, Sri Lanka’s private broadcasters who have used the freedom of the proverbial ‘wild ass’ to propagate racist, communalist hate speech as ‘kingmakers,’ have done so with the blessings of the political establishment.

So the Government’s so-called justification is unacceptable. The danger is that, these proposals which seek to establish a regulatory Commission to which enormous powers will be conferred to ‘regulate’ the broadcasting media and to deny or issue licences therein, may only aggravate that pro-Government bias. Crucially, the Commission lacks the certainty of functioning independently from political dictates.

There is, of course, a well settled precedent in this regard which the drafters of these ‘proposals’ would have done well to heed more diligently. In striking down a Sri Lanka Broadcasting Authority Bill (1997) on the basis that its provisions violated the Constitution, the Supreme Court (per G.P.S de Silva CJ, Amerasinghe J and Ramanathan J), put the matter very plainly in warning the State against establishing a regulatory body that was no more than, ‘an arm of the Government,’ as was curtly put at that point.

Broadcast frequencies are
held ‘in trust’

The Bench cited international legal principles to say that while regulation of limited frequencies was legitimate, such a task cannot be left to a Government in office for the time being. Rather, ‘airwaves/frequencies are…universally regarded as public property…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 and no less.’

The Court said that, ‘otherwise the freedoms of thought and speech, including the right to information will be placed in jeopardy.’ The 1997 Bill had proposed a Board to regulate the broadcasting media which was comprised of six ex-officio members and five other members appointed by the Minister. Five of the six ex-officio members were secretaries to Ministries while the sixth was the Chair of the National Film Corporation.

The inclusion of that sixth ex-officio member was ruled by the Court to amount to a conflict of interest. The other five members were appointed by the Minister with at least two ‘having experience in the field of broadcasting.’ No other criteria was specified. The whole was summarily struck down by the Court. The reasoning thereto was beautifully succinct. This Authority, the judges said, ‘lacks the independence required of a body entrusted with the regulation of the electronic media which, it is acknowledged on all hands, is the most potent means of influencing thought.’

Asinine composition of a regulatory Commission

In comparison thereto, Clause 3 (1)(a) of the 2023 proposals details that the Commission shall be a five member body, with two ex-officio members, namely the ‘Secretary to the Ministry of the Minister’ (whatever that nonsense may mean) and the ‘Director General of Telecommunications appointed under the Sri Lanka Telecommunications Act (with misspelt words and missing a citation to the year of the Act).

The remaining three members, we are told with panache, are appointed by the President with the ‘approval’ of the Constitutional Council. The only criteria specified therein is that they must possess a ‘degree’ in law, science, business management, technology, communication, engineering, public administration or mass media. This is farcical at best. Technically therefore, a just-passed out graduate can be grafted to serve on the Commission.

And to be clear, the insertion of the ‘Constitutional Council’ under the 21st Amendment is not a magic key to guarantee the independence of this body. We have seen this amply demonstrated during the past several months when appointments to several constitutional commissions were delayed. This is overwhelmingly a politically tilted body with a veneer of ‘impartiality’ as a fig leaf.

Bringing a politically tilted Commission into being

The manner in which such a vital regulatory Commission should be constituted is quite different, as the relevant Ministers of Justice and Media must be told in no uncertain terms. First, nominations must be made of potential members by industry bodies and professional organisations still possessing a semblance of credibility in Sri Lanka’s corrupted governance culture. Secondly, a ‘degree’ is not (evidently) the be-all and end-all of stipulated criteria upon which the nominations/appointments must be made.

Experience in the relevant fields is infinitely essential. Moreover, the clauses in regard to potential conflicts of interests must be finetuned. And as the Supreme Court observed in 1997, the security of tenure of its members must be strengthened. The 2023 proposals deviously empower the President to remove any member (misbehaviour, physical or mental ill health, unable to discharge functions, other stated grounds of disqualification etc) merely upon informing’ the Constitutional Council in that regard.

Even the slim safeguard of a stronger bar to abuse such as, presidential removal only being on the ‘recommendation’ of the Council is lacking. Space constraints do not permit detailed scrutiny of these proposals. However it is abundantly clear that they violate the 1997 Supreme Court precedent on several grounds. This includes silence on repeal of relevant sections of the SLRC and SLBC Acts in order to bring regulation of the state broadcasters within the reach of the proposed regulatory control.

Dangerously abusive clauses galore

As the Court observed, ‘there is no rational explanation why the law should only be benign in operation to those two broadcasters…while looking upon others with ‘an evil eye. It was concluded, on this basis that ‘unjustified discrimination is manifest. There is a clear violation of the principles of equality.’ Substantively, the 2023 proposals confer the Commission (and its committees) with dangerously abusive power to cancel licences issued to broadcasters and issue other ‘interim directions.

This is based interalia, not only on ‘protection of national security’ but also, ‘protection of the economy’. That is rich coming from a political establishment that has collectively bankrupted Sri Lanka. Is this yet another ploy for the Government to control the ‘public mind’ in the economically hard times ahead?

In truth, these insultingly framed proposals veritably put to shame all the decades of work that Sri Lankan lawyers, broadcasters and analysts have poured into these reforms. The Government must be put on public inquiry in regard to the origins  of this atrocious draft.

Vacuous splutterings by its dim Ministers will not do.