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Brace, brace for a tsunami of bad laws soon to engulf Sri Lanka – Kishali Pinto-Jayawardene

When a collective of Sri Lanka’s Cabinet Ministers and their servile acolytes in the legal profession or administrative service sat down in sub-committee to prepare the draft Broadcasting Regulatory Commission Bill, was it their intention to deliberately infringe the 1997 Supreme Court ruling on constitutional imperatives in every conceivable shape and form?

A hideously problematic Bill

This question must be asked in deadly seriousness. For I am puzzled otherwise than to attribute a clear and specific intention to violate the well-known precedent (Athukorala and others v the Attorney General, 5th May, 1997) when vainly trying to comprehend as to how such a truly horrendous document could have originated from the bowels of the Government. Or should we discard even the semblance of logic and reason in trying to understand how this administration works? Perhaps that may be best conducive to preserving one’s own sanity, perchance.

Regardless, these proposals have been proudly flourished before the befuddled Sri Lankan public by the Minister of Justice who has explained that this is ‘just a draft.’ That is no reassurance. Was the Minister himself so blissfully unaware of the 1997 legal precedent? Did he not cursorily run his eyes through the Bill which would easily disclose the flouting of the Court’s specific guidelines within a matter of minutes? More to the point, is this how President Ranil Wickremesinghe hopes to fashion a brave Sri Lanka, putting to nought his previous commitment to well crafted media law reform?

Returning to this Bill, each clause is so hideously problematic that it is a problem to know where to start and where to end a critique thereof. Last week, clauses relating to the composition of the proposed regulatory Commission were discussed, the lack of independence of the body, the power of the President to dismiss its members and the discriminatory manner in which private broadcasters may be treated. We continue this critique by looking at the Minister’s powers in regard to the Commission.

Contradictions galore in its contents

Indeed, it seems as if we have entered a dreadful time warp and have become transported back to a timorously uncertain era when the entire body of carefully developed judicial precedent in regard to establishing commissions of this nature has suddenly disappeared into thin air. Nothing of what has been laid down not only in the 1997 SC SD Determination on the Broadcasting Authority Bill but also other decisions of the apex court, are reflected in this Bill.

In direct defiance of what the Court said in 1997, the Minister has been given the power to issue general or special directions to the Commission in the 2023 proposals. Not only that, Clause 26 (2) makes the impact of those directions unambiguously clear by dictating that, ‘it shall be the duty of the Commission to comply with and to ensure compliance by any operator’ to any such ministerial directives. Later on, the Minister is also empowered to make regulations with ‘the concurrence of the Commission.’

The areas in regard to which such power is conferred are disturbingly broad. Thus, ministerial regulations may be made to determine the respective types of licences to be issued by the Commission for broadcasting service providers, fees to be charged for issuing and renewal of licences and requirements to be put forward for an applicant to obtain a licence. Further, the Minister may also regulate on terms and conditions and technical requirements to be satisfied by a licensee, conditions to be satisfied when transferring a license and financial capacity of applicants in order to apply for a license.

Ripe conditions for Ministerial abuse

There are no suitable words that come to mind to describe this expanse of ministerial power.  Why not hand the entire process over to the Minister, lock, stock and smoking barrel and let him/her dole out licences to Sri Lanka’s broadcast media like candy, pray? That would be more honest than engaging in this entirely ludicrous exercise of ‘regulation.’ To be blunt, this is not a ‘regulatory’ Commission that is sought to be set up but a creature of the Minister’s, to run, be petted or whipped whenever the Minister (or his/her Government) feels like it.

In 1997, reacting adversely to the very same powers to be given to the Minister in the Broadcasting Authority Bill case, the Supreme Court lucidly explained that this would make the body ‘no more than an arm of the Government.’ Unlike in 1997 however, the 2023 proposals require a further step, that, the regulations so made should be published in the Gazette and within three months thereof, be brought before Parliament for approval. Even so, that is no solution.

A Government with a comfortable majority in Parliament can easily pass that further step without much qualms. The ‘laying before Parliament’ procedure is no bar to abuse when the parliamentary process itself has become so subverted that the process of checks and balances do not apply. That is certainly the case currently. Furthermore, as briefly remarked upon last week, a licence may be suspended or cancelled or where a fine may be imposed in conditions which lack basic safeguards against irredeemable politicisation of the process.

A political Commission and investigation committee

If the proposed Commission itself is conceived as a creature of the Government and its Director General left defenceless to the high winds against political interference, the so-called ‘committee to investigate on complaints’ is far worse. This comprises three persons, one of whom is the Director General and the others are persons ‘with experience in the fields of Law or Mass Media.’ Interestingly and notably, it has suo motu powers (can act on its own initiative) or on a complaint made.

In other words, it does not take much imagination to envisage this Committee/Commission wandering around, not like Diogenes searching for an ‘honest man’ with a lantern in broad daylight, but with irresistible zeal to catch media stations going contrary to the Government’s version of the ‘truth.’ The grounds on which they can take action are specified (in atrocious English and with inaccurate legal meaning) as ‘violation of any provision of this Act or any law made under the provisions of this Act’, violation of conditions specified in a license.’

Also specified are ‘violation of any ethics (sic) in any code of ethics (sic),’ or monopolistic practices or (most concerningly) ‘a threat to national security, national economy or may create any conflict between race and religions.’ For the purposes of investigations, the committee may ‘enter, inspect and search’ the premises of any broadcasting station upon obtaining a warrant from a magistrate. Punishments of both jail and fines are stipulated, though the nature of each is yet to be specified.

A palpably surreal flavour to all of this

On the one hand, under direct instructions from their betters, the police arrest dissenters, minority opposition parliamentarians and irreverent comedians in the twinkling of an eye for provoking racial and religious disharmony. On the other hand, the President blandly instructs his officials to proceed with all speed on truth and reconciliation commissions, reparations commissions and the like.

Meanwhile, western embassies who would have screamed to high heavens if these abuses had occurred under the Rajapaksas (both brothers inclusive) send out ambivalent messages on social media on the importance of freedom of expression. Geopolitical games notwithstanding, there is the high stench of hypocrisy in the air, methinks.

Leaving aside that drama, the point is that whether it is the Anti-Terrorism Bill, the Anti-Corruption Bill or the Broadcasting Regulatory Commission Bill, they are all uniformly bad. What s the role of the Legal Draftsman in all of this mess? And where is the Attorney General placed thereto? Sri Lankans need to prepare ourselves for political attempts to turn legal and regulatory systems upside down, wreaking havoc on an already terribly weakened governance environment.

Brace, brace, keep the life jackets and oxygen masks on hand, there is a tsunami of bad laws coming the nation’s way.

(Sunday Times,11.06.23)



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