Serious concerns with regard to the unsolicited New Year’s Day text message sent on behalf of the President and other consequential issues relating to the conduct of a free and fair presidential election

On 6th January 2010, the Centre for Policy Alternatives (CPA) wrote to Mr. Dayananda Dissanayake, the Commissioner of Elections expressing serious concerns over an unsolicited New Year’s Day text message sent on behalf of the President and other consequential issues arising over the conduct of a free and fair presidential election.

CPA in its letter noted that these concerns were brought to Mr. Dissanayake’s attention at first instance, but that the contents of letter would be made public within a reasonable time period, together with Mr. Dissanayake’s responses and a description of any action of he had taken with regard to the issues raised. To date, CPA has not received any response from Mr. Dissanayake and is not aware of any initiative by him to address the significant concerns enumerated in our letter.

The full text of the letter follows, and is also available as a PDF here. It is also available as a PDF in Tamil here.

6th January 2010

Mr. Dayananda Dissanayake
Commissioner of Elections
Elections Secretariat
Sarana Mawatha,
Rajagiriya

Dear Mr. Dissanayake,

Serious concerns with regard to the unsolicited New Year’s Day text message sent on behalf of the President and other consequential issues relating to the conduct of a free and fair presidential election

You will be aware of media reports concerning the unsolicited text message sent to subscribers of all five mobile phone service operators on 1st January 2010 purporting to be a message of good wishes from President Mahinda Rajapakse. The said text message read as follows: “Kiwu paridi obata NIDAHAS, NIVAHAL RATAK laba dunnemi. Idiri anagathaya sarwapprakarayenma Wasanawantha Wewa! SUBA NAWA WASARAK WEWA! Mahinda Rajapaksa” (Our translation: “As I promised, I gave you a free and independent country. May your future be successful in all ways. Happy New Year! Mahinda Rajapaksa”): see Daily Mirror Online report of 1st January 2010 entitled ‘President sends SMS New Year greeting to mobile users’ (available at: http://www.dailymirror.lk/DM_BLOG/Sections/frmNewsDetailView.aspx?ARTID=72366) in which, inter alia, it is claimed that “One mobile operator told Daily Mirror online the SMS was sent to all of their subscribers following a request from the President.” (Emphasis added)

Subsequently, on 2nd January 2010, the Weekend Financial Times also carried a front page news story entitled ‘Telecom regulator SMS Mahinda to mobiles (sic)’ in which, inter alia, it was stated that “In an unprecedented move and perhaps controversial in the midst of a crucial election, the Telecommunication Regulatory Commission (TRC) yesterday instructed all five operators to transmit an SMS containing President’s New Year wish to all 12 million mobile subscribers (sic).” The same report also stated that:

“It couldn’t be confirmed whether TRC’s move firstly of instructing mobile operators to transmit President’s message, secondly without paying the operators, and thirdly the content and spirit of the message tantamount to violation of any Presidential elections rules and regulations concerning public institutions and their employees (sic).”

“…TRC functioning as the intermediary with instructions as well as expecting mobile operators not to charge TRC for such transmission can be bordering on a question of good governance, transparency and accountability apart from circumventing prohibitions under Election Laws (sic).”

“When Daily FT sought a clarification from the biggest mobile operator Dialog Telekom, the company in a brief statement said the transmission of a New Year Message from the President of Sri Lanka to all Dialog subscribers was carried out by the company based on instructions received from the Telecommunications Regulatory Commission of Sri Lanka. In line with prior practice with respect to the transmission of messages as instructed by the TRCSL, the company will not be levying any charge from the TRCSL from the transmission of this message.” (Emphasis added)

In the context of the forthcoming presidential election in which the President is a candidate for reelection, you will note that this message, of which at least the first sentence clearly contains a partisan political statement, raises a number of grave issues for the conduct of a free and fair election. In particular, we would draw your attention to the following issues:

If the media reports cited above are correct to the effect that at least one operator, Dialog Telekom, has officially confirmed that they transmitted the President’s message (free of charge) on the instructions of the TRC, then the TRC has acted in a politically partisan manner, in clear in violation of its statutory objects and ultra vires its statutory authority, contrary to the public and national interest it is statutorily enjoined to uphold, and acted arbitrarily and illegally for an extraneous purpose other than one provided for by law. In this regard, we would draw your attention to Sections 4 and 5 of the Sri Lanka Telecommunications Act No. 25 of 1991 as amended by Sections 7 and 8 of the Sri Lanka Telecommunications (Amendment) Act No. 27 of 1996, wherein there is no legal power, authority or discretion conferred on the TRC to give any instructions to the effect as are presently at issue.

In the interest of a free and fair election, which necessarily requires that a candidate at an election who is an incumbent holder of public office, is not placed at an unfair advantage by virtue of such incumbency, we request that you seek an official clarification from the TRC and any other relevant party (including the Office of the President of the Republic, Mr. Mahinda Rajapakse’s campaign, and the five mobile phone operators) as to the matters set out below, and in the interests of transparency and good governance inherent to the conduct of a free and fair election and public confidence in both the electoral process and your constitutional office, to make such findings public as soon as possible.

  1. Did the TRC in fact issue the alleged instruction to all or some of the five mobile phone operators in Sri Lanka that they transmit the said text message?
  2. If so, by what statutory authority did the TRC issue such an instruction?
  3. Furthermore, did the TRC receive any general or specific direction from any other authority of the Government of Sri Lanka, including the Minister in charge of the subject of Telecommunication (in terms of Section 66 (1) of the Sri Lanka Telecommunications Act No. 25 of 1991) and/or the Office of the President of the Republic, ordering it to issue the alleged instruction to all or some the five mobile phone operators?
  4. If the TRC denies that the alleged instruction has been issued, and having regard to the issues relating to costs of transmission of the said text message mentioned below, what steps does it intend to take in terms the offences and penalties set out in all or any of Sections 45, 46, 48, 52 (with specific regard to ‘usage information’ defined thereunder), 56, 62, 63 or 64 of the Sri Lanka Telecommunications Act No. 25 of 1991?
  5. In the light of the statement issued by Dialog Telekom quoted by the Weekend Financial Times above, is it the general practice of Sri Lanka’s mobile phone operators to automatically accede to any instruction issued by the TRC without independently ascertaining the vires of such instructions, even where, as in the present case, the legality of the instruction is patently questionable?
  6. Was the said text message transmitted to subscribers without charge to the TRC, the Government of Sri Lanka, or to the campaign funds of Mr. Mahinda Rajapakse, by all or some of the five mobile phone operators?
  7. If so, what were the costs incurred by the respective mobile phone operators, and in particular by Mobitel (Pvt) Ltd, which is a wholly owned subsidiary of Sri Lanka Telecom, a public company in which a 49.5% stake is owned by the Government (i.e., the People) of Sri Lanka?
  8. If the costs of the transmission were borne by the mobile phone operators, under which existing law, policy or practice did they feel obliged to do so, given that the content of the text message they were instructed to transmit was clearly meant to further the election campaign of one out of twenty two candidates at the forthcoming presidential election, and not for any legitimate public purpose recognised by the provisions of Sections 4 and 5 of the Sri Lanka Telecommunications Act No. 25 of 1991 as amended by Sections 7 and 8 of the Sri Lanka Telecommunications (Amendment) Act No. 27 of 1996?
  9. Why did neither the TRC nor the mobile phone operators consider it necessary or relevant, if only as a matter of common courtesy and sound customer relations, to obtain the prior permission of subscribers before transmitting unsolicited text messages of a politically partisan nature (especially where a subscriber on overseas roaming would have had to pay – subject to variable costs depending on country and roaming service provider – for the incoming unsolicited text message)?
  10. Has the option of unsubscribing to future such text messages been offered to subscribers either by the mobile phone operators or by the TRC in conformity with its statutory duty in terms of Section 5 (d) of the Sri Lanka Telecommunications Act No. 25 of 1991 which requires it ‘to pay due regard to the public interest and the convenience and wishes of the general public as regards telecommunication services provided by an operator’?

Given that in terms of Article 103 (2) of the Constitution read with Section 27 (2) of the Seventeenth Amendment to the Constitution, you are constitutionally obliged to conduct free and fair elections, we earnestly urge you to direct your urgent and serious attention to the issues raised herein, and take all such remedial measures as are necessary, including but not limited to the ones suggested above, to ensure that this kind of abuse of public authority does not recur during the course of the current presidential campaign, or in any future election or referendum campaign.

While we believe that the matters set out above are of great public importance, we consider it only proper that we should bring them to your attention at first instance. However, we would like to make the contents of the instant communication public within a reasonable time period, together with your responses and a description of any action of you have taken with regard to the issues raised herein.

Anticipating your prompt attention to the matters set out above,

Thank you.

Yours sincerely

Sara signature
DR. PAIKIASOTHY SARAVANAMUTTU
EXECUTIVE DIRECTOR