By Namini Wijedasa ( Lakbima News 9th Nov)
The government has slapped a new gazette on private electronic media, curbing their freedom on loosely defined terms and causing shockwaves throughout the industry.
The gazette assigns considerable powers to the minister of mass media and information and has raised fears that controls on print media are next.
The new rules are dated 10 October 2008 but are cryptically cited as the Private Television Broadcasting Station Regulations of 2007. They cover all private television broadcasting stations including terrestrial TV, cable TV, satellite TV, internet TV and mobile telephony platform based TV.
Industry players, media representatives and rights advocates emphasise that the new regulations are objectionable on many fronts. They assign wide-ranging powers to the minister of mass media and information. Such ministers in President Mahinda Rajapaksa’s or in anybody else’s regimes have rarely – if ever – been fair, independent and devoid of political bias or favour. The manner in which the state media has been controlled and exploited is a case in point. With the threat of a licence cancellation or non-renewal dangling over their heads, private television stations may be forced to self-censor so that they are in the government’s good books. This is not always possible. Nor will it contribute towards open, independent and vibrant media in Sri Lanka.
Meanwhile, the conditions that would lead to a licence cancellation are causing disquiet in both print and electronic media circles. “Among the many highly problematic aspects of these regulations is that the conditions under which licences may be cancelled relate to programme content and are demonstrably overbroad,” reflected Kishali Pinto-Jayawardena, lawyer and rights advocate. “They include that old suspect, ‘national security’- but who is to define what national security means?”
“Cancellation may also be on grounds of infringement of ‘decency’ and being ‘morally offensive’ which are equally imprecise,” she explains. “Meanwhile, the suspension of a licence to operate a particular channel is on even worse grounds – not only is ‘national security’ again repeated here but the minister may act ‘in the public interest’. This is a vague and general terminology which should not be used.”
Pinto-Jayawardena says Sri Lanka needs an independent broadcasting authority and not partisan arrangements of this nature. “Sri Lanka’s broadcasting regime must be made free from governmental control and consequent interference for party-political purposes,” she insisted. “However, where such tremendous shrinking of our basic freedoms has become commonplace, such expectations seem quite naive now.”
Legislation by gazette
Because the regulations cover all forms of TV broadcasting, they are broad in scope. “This is not a legitimate subject to be decided upon by regulations that are gazetted,” said Professor Rohan Samarajiva, former chairman of the Telecommunications Regulatory Commission of Sri Lanka (TRCSL).
When the government of Chandrika Kumaratunga introduced a draft Broadcast Authority Bill in 1997, the Supreme Court struck it down with a strong judgement. Justices A R B Amerasinghe, G P S de Silva and P Ramanathan said the authority envisaged by the bill was not independent enough, called for an authority comprising of multiple members and held the bill to be unconstitutional.
“Now, 11 years later, a simple gazette is being used to override a Supreme Court ruling and to do what parliament should be doing,” Samarajiva criticised. “The constitution clearly states that the passing of law is within the purview of parliament.”
“Even if this were legal, an incredible amount of discretion is given to the minister,” he continued. “The grounds on which a licence may be cancelled are not defined. It talks of a code of ethics, standards and practices of television broadcasting. Does that actually exist?”
The minister has the right to suspend a licence in the interest of national security. “We know how this minister will use his discretion on this count,” Samarajiva said. “In the ABC Radio case, one radio station in the group carried a report and the entire organisation was shut down. Permission was given to operate only when the managing director and his brother left the opposition political party they were connected to and joined the government. It was done by this same minister under this same government… a clear example of what is come.”
Prof Samarajiva raised another point: “Thousands of people who have currently subscribed to Dialog TV can expect their screens to go blank within a month because the regulation does not allow a company with less than 50 per cent Sri Lankan shareholding to apply for a licence. This is retroactive expropriation of investment made in good faith.” The parent company of Dialog Telekom, Malaysia’s TM International (L) Limited, holds 83.15 per cent of total ordinary shares. The gazette says an application for a licence may be made to the minister only by a company in which the majority of shareholders are Sri Lankan citizens.
“However, there is the possibility that others who have licences can negotiate with a company like Dialog,” Samarajiva said. “This means Dialog can run their programmes on other people’s networks. They can’t do anything that looks like mobile based television but somebody can negotiate with Dialog to run the satellite business on Dialog’s existing infrastructure.”
Meanwhile, private television stations are in a quandary. “There is already a Supreme Court judgement saying that only courts, and not a minister, can cancel a licence,” said Sudath Jayasundara, general manger of Telshan Networks Ltd. “Even then, it is done through a proper process of investigation to establish whether we are guilty.” The new regulations permit a minister to act arbitrarily.
Under the gazette, all existing private broadcasters with valid licences have to apply to the minister for a fresh licence within thirty days of the regulations coming into effect. The minister shall inform the broadcaster of his decision within sixty days from the date of receipt of the application.
“We will be held in abeyance for a further 60 days, not knowing whether we will get a licence or not,” Jayasundara noted. “We have spent so much money and we employ a large number of people. TNL has been in operation for 15 years and we don’t know what will happen after the application is sent.”
Among other alarming provisions, the gazette gives the minister of mass media and information discretion to grant, withhold, suspend or cancel private TV licences. It states that recognized political parties shall not be eligible to a licence for the establishment or maintenance of a private TV broadcasting station or network. And, if a person to whom a licence is issued becomes a member of a recognized political party during the period of the validity of the licence, he shall be required to immediately surrender the licence.
Significantly, a licence may be cancelled for broadcasting programmes that are detrimental to the interests of national security; incite breakdown of public order; incite ethnic, religious or cultural hatred; in violation of any laws of the country; are morally offensive or indecent; detrimental to the rights and privileges of children; and in violation of the code of ethics, standards and practices of television broadcasting. All of these are elastic, undefined parameters.
Section 19 states that: “The Minister shall have the right to suspend the permission granted to a licensee to operate any channel for a specified period, in the interest of the public or in the interest of National Security, in order to prevent the misuse of such channel.” What constitutes a matter of public interest or that of national security is not explained.
Licences will be valid for a period of just one year after which a fresh application has to be submitted to the minister of mass media and information. An application for a broadcasting licence may be made to the minister by a citizen of Sri Lanka; a partnership, where all the partners are citizens of Sri Lanka; a company in which the majority of the shareholding is held by citizens of Sri Lanka; or a statutory body establishes by law.
Ironically, private broadcasters in Sri Lanka were not officially informed of the new regulations. Nor have they been told when they will come into force. “We have not been notified,” said Sudath Jayasundara, general manger of Telshan Networks Ltd. “We learnt about this from the papers.”