No one said that Gazettes are subject to the provisions of the Constitution, did they? Why bother with the Supreme Court when one has access to the Government Printer?
Looks like Parliament is becoming redundant. Maybe even the Supreme Court. All that the government needs for its business is the Government Printer. At least that is what the Minister of Mass Media and Information seems to think.
Most countries take media reforms very seriously. They conduct public consultations; appoint select committees; and so on before they come up with new media laws.
Sri Lanka used to work that way. The Broadcasting Authority Bill of 1997 was drafted and was subject to Constitutional review. It was held unconstitutional by the Constitutional Court because it did not give adequate independence to the Authority.
Then a Select Committee of Parliament with representation of all parties was appointed to consider the problem and met on multiple occasions.
But now things are different. To make fundamental legal changes, including effectively expropriating investments of foreign investors, the government considers regulations promulgated by Gazette adequate. A mere Gazette is considered adequate to override an explicit ruling of the Supreme Court.This Gazette (1570/35) that embodies the most draconian licensing regimes for television I have ever seen is dated October 10th, 2008 and became public knowledge 10-15 days later. Companies with multi-million rupee investments in the ground have to apply for new licenses by November 10th.
There was no public consultation; there was no Constitutional review under Articles 121 or 122; there was no Parliamentary debate. Just a little Gazette, printed by the Government Printer.
According to the drafters of this “law,” licenses are to be issued for terrestrial television, cable-based television, satellite-based television, Internet-based television and mobile-telephony-platform-based television broadcasting by the Minister.
They are deficient in knowledge of constitutional law, media law, legislative drafting and many other things, but cannot be accused of being technologically illiterate.
Only Sri Lankan citizens, partnerships where all partners are Sri Lanka citizens, companies which have Sri Lankan citizens controlling a majority of shares and statutory bodies can apply for these licenses.
This, of course, excludes all the major telecom operators in Sri Lanka other than Sri Lanka Telecom (where the government holds 49 per cent of shares while the foreign investor holds less than 50 percent) and Lanka Bell which is owned possibly by the Sri Lanka Insurance Corporation or by some entity or entities controlled by Mr Harry Jayawardene.
Qualifying to apply is one thing. Getting a license is another.
No reasons have to be given for a refusal. No pretence is made of an independent, transparent process. The Minister can give, or not give. This is much simpler than what was proposed in 1997.
Companies which invested in broadcasting activities in good faith under the previous licensing regime who do not qualify to apply or are not granted licenses by the Minister will now have to sell their operations or close down. But, room is left for other entities to broadcast on their networks. This should create some interesting negotiation dynamics.
And what is the nature of the licenses that will be issued to Sri Lankan citizens, Sri Lankan partnerships, Companies with majority Sri Lankan ownership and statutory corporations whom the Minister favors? A one-year license that can be suspended, cancelled or not renewed for a range of vague reasons such as “detrimental to the interests of national security,” “morally offensive or indecent,” and “detrimental to the rights and privileges of children.”
Given the recent experience of ABC radio which was able to resume broadcasting only after the brother of the Managing Director joined the government party, it is not unreasonable to conclude that licenses will be granted, renewed and not suspended/cancelled on the basis of fealty to the government in power.
Interestingly, the Gazette "law" does not specify any penalties for those who broadcast without a license. Section 28 of the parent Act states that no person may maintain a “television broadcasting station” without a license from the Minister, but that Act does not specify an offence associated with broadcasting without a license.
What is a “television broadcasting station”? “Private television broadcasting station" means a television station established or operated by any person other than the Corporation. “Television broadcasting" includes cable television but excludes the broadcasting of radio programmes; "television programme " or " programmes " includes any signal, announcement, item, communication, picture or other matter broadcast or intended to be broadcast from a television broadcasting station for reception by the public (section 32).
Where is the definition of broadcasting? Does a cable headend constitute a broadcasting station?
In different circumstances, one could have used this Gazette and its parent Act to demonstrate how not to draft legislation. In different circumstances, the weaknesses of legislative design could have been used to overturn and make harmless this draconian law.
But at this point, the most significant provision of the Sri Lanka Rupavahini Corporation Act, No. 6 of 1982, under which this “law” was promulgated is section 31(3). It states that “every regulation made by the Minister shall, as soon as convenient after its publication in the Gazette, be brought before Parliament for approval. Every regulation which is not so approved shall be deemed to be rescinded as from date of disapproval, but without prejudice to the validity of anything previously done thereunder.”
Parliament should ask that these regulations be brought before it forthwith for approval. And if they do not meet with the approval of Parliament, they should be rescinded.
If they do meet with the approval of Parliament, the members should at the same time vote for indefinite prorogation because their work can now be done by the Government Printer. And there is the added public benefit that there would be no need to close the Jayawardanapura road for security reasons.
As for the Supreme Court, all it needs to do is read the Broadcasting Authority Bill judgement of Justice Ramanathan from 1997. And act to safeguard the authority of the Court and the Constitution from being trashed by a mere Gazette.