14th January 2010, Colombo, Sri Lanka: It is now abundantly clear that a situation has arisen in which the State-controlled media is acting with complete disregard for the principles of balance and impartiality inherent to any notion of responsible and professional journalism (which apply with even greater force in the case of media institutions that are publicly-owned and tax-payer funded), and in a manner that violates the guidelines issued by the Elections Commissioner under the power vested in him by Article 104B (5) (a) of the Constitution. In terms of Article 104B (5) (b), therefore, the Chairmen, specifically of the Sri Lanka Rupavahini Corporation and the Sri Lanka Broadcasting Corporation, are in breach of a legal duty imposed by the Constitution itself.

In this context, CMEV was pleased to learn that the Elections Commissioner had first identified, then appointed, Mr. Jayampathy Hettiarachchi (formerly of the Sri Lanka Administrative Service) as the Competent Authority in terms of Article 104B (5) (c) of the Constitution and the Competent Authority (Powers and Functions) Act No. 3 of 2002. CMEV also noted that certain political programmes had in fact been suspended due to their violation of the Elections Commissioner’s guidelines.

However, it has been reported that at a meeting on Tuesday, 12th January, with representatives of political parties, candidates and monitors (including representatives of CMEV), the Elections Commissioner had expressed his consternation, among other things, at the lack of co-operation extended by the relevant State media institutions to the Competent Authority, and went so far to suggest that he was considering withdrawing the appointment of Mr. Jayampathy Hettiarachchi as the Competent Authority.

In a letter addressed to the Elections Commissioner on 14th January, CMEV urged him to reconsider the precipitate option of rescinding the appointment of the Competent Authority. The provision for the appointment and exercise of powers by the Competent Authority is one of the few significant mechanisms that have been provided for by the Seventeenth Amendment so as to ensure at least a semblance of propriety in the conduct of the Sri Lanka Rupavahini Corporation and the Sri Lanka Broadcasting Corporation. Negating that mechanism in the face of intransigence would not only be legally unjustified, but also have the undesirable effect of encouraging impunity with regard to the violation of the law and the Constitution.

More generally, however, CMEV is concerned about the public perception that neither the office of the Elections Commissioner nor the powers provided to it by the Seventeenth Amendment are capable of resisting attempts at nullification by those who are desirous of illegally using public institutions for the furtherance of partisan advantage at the forthcoming presidential election. In its letter, CMEV assured the Elections Commissioner that it remains committed to providing any support he may require from civil society to exercise his powers under the Seventeenth Amendment so as to ensure a free and fair presidential election, including through appropriate legal action in the public interest.

We noted at the outset that the press and web-based reportage of the appointment of the Competent Authority, and the problems he appears to have encountered in discharging his functions, has been characterised by conflicting reports, incorrect interpretations and imputations, and a general lack of understanding about the constitutional and legal framework relating to the powers of the Elections Commissioner and the Competent Authority with regard to the media and in particular, the Sri Lanka Rupavahini Corporation and the Sri Lanka Broadcasting Corporation. This has resulted in causing not only unnecessary confusion among the public, but also by creating a perception of impotence, in eroding public confidence in the law and institutions governing elections.

We strongly believe that the lack of a more open approach to disclosure of information and authoritative documentation on the part of the office of the Elections Commissioner has materially contributed to this unfortunate situation. Had there been more transparency with regard to the decision-making process in the identification and appointment of the Competent Authority, and thereafter his activities in the discharge of his powers and functions, we are convinced that the public support critical to both ensuring the integrity and independence of the electoral institutions as well as the rejection of the uncooperative behaviour of sections of the State media, would have been more forthcoming. Above all, it would have served to ensure more accurate and consistent news reportage of this issue of major importance for the integrity of the electoral process and consequently for democracy and constitutional government in Sri Lanka.

The Seventeenth Amendment to the Constitution, enacted in 2001, sought to strengthen the independence of the elections administration machinery through changing the structure, composition and manner of appointment and removal of a new Election Commission to replace the office of Commissioner of Elections. The new Election Commission was also provided with a wider scope of substantive powers and greater powers of enforcement. In respect of composition, the independence of the new Election Commission was enhanced through widening the field of appointments to include experts and civil society in addition to a regular administrative service support structure. The idea was to ensure stakeholder representation in decision-making in the administration of elections. In respect of independence, the Seventeenth Amendment provided that appointments to the Election Commission be made by a new and non-partisan Constitutional Council, and secured tenure comparable to superior court judges. The new constitutional framework specifically envisaged enhanced powers for the Election Commission over the prevention of the abuse of public and state resources and of the state-owned and controlled media.

The most remarkable feature about this constitutional framework for the administration of elections, however, is that it has never been implemented in the manner intended. Initially because of a lack of agreement between the then President and the Constitutional Council as to the latter’s nomination as Chair of the Election Commission, and subsequently due to the non-constitution of the Constitutional Council itself once the terms of the first members had lapsed, an Election Commission has never been appointed. Fortunately, a savings clause in the Seventeenth Amendment Act, Section 29 (2), provided that in the event for whatever reason of the non-constitution of an Election Commission, the person holding office of Commissioner of Elections immediately prior to the commencement of the Seventeenth Amendment, would be empowered to exercise the enhanced powers of the Election Commission until such time as the Commission is appointed. It is under this provision that Mr. Dayananda Dissanayake, Commissioner of Elections, has administered elections since.

Constitutional Framework and Powers in respect of the Media during an Election
Article 104B (5) gives the Election Commission certain powers of regulation over the media in general, and the principal State broadcasters, the Sri Lanka Broadcasting Corporation (SLBC) and Sri Lanka Rupavahini Corporation (SLRC) in particular. It should be noted that the Seventeenth Amendment covers only the SLBC and SLRC, and excludes other State-owned or controlled broadcasters such as the Independent Television Network (ITN), as well as the State-owned and government controlled print media belonging to the Associated Newspapers of Ceylon (ANCL) Group.

Under Article 104B (5) (a), the Commission has the power to issue, in respect of the holding of any election or referendum, such appropriate guidelines to any broadcasting or telecasting operator, or any proprietor or publisher of a newspaper, as the Commission considers necessary to ensure a free and fair election. Article 104B (5) (b) places a special obligation on the chairpersons of the SLBC and the SLRC, ‘to take all necessary steps to ensure compliance with any guidelines as are issued to them under sub-paragraph (a).’

In terms of Article 104B (5) (c), where either of those state media institutions contravenes such guidelines ‘….the Commission may appoint a Competent Authority…who shall, with effect from the date of such appointment, take over the management of… [the SLBC or the SLRC]…in respect of all political broadcasts or any other broadcast, which in the opinion of the Commission impinge on the election, until the conclusion of the election…’ During the period a Competent Authority has taken over such management, the SLBC or the SLRC cannot discharge any function connected with such management.

The powers of the Competent Authority referred to in Article 104B (5) (c) are enumerated in detail in the Competent Authority (Powers and Functions) Act No. 3 of 2002. Under the 16 sub-sections (a – p) of section 2 of the Act, the Competent Authority (CA) is empowered to supervise and control radio and television services of the SLBC and SLRC respectively while maintaining in the public interest, and in the interests of a free and fair election, high standards in programming. The CA assumes all the powers and functions assigned to the corporations under their parent Acts (i.e., Sri Lanka Broadcasting Corporation Act No. 37 of 1966 and Sri Lanka Rupavahini Corporation Act No. 6 of 1982), not only in relation to management, but also programming, production, advertising and content regulation. Section 3 of the Act requires the CA to ensure compliance by the SLBC and SLRC of not only the guidelines issued by the Elections Commission (vide Article 104B (5) (a)), but also the statutory conditions set out in the provision regarding good taste and decency, balance, accuracy, impartiality and the public interest.

As usually happens in Sri Lanka during election campaigns, the role of the state media institutions was the subject of controversy in 2004 also, when the General Elections of April that year became the first to be held under the new Seventeenth Amendment framework. The Commissioner of Elections issued guidelines to the media in March 2004. During the course of the campaign, the conduct of the SLBC and SLRC were seen to be falling short of the constitutional and statutory standards of balance and impartiality expected of them, and in the last week of the campaign, the Commissioner of Elections appointed a Competent Authority in respect of both institutions to enforce the guidelines.

The Election Commissioner’s guidelines for fair and balanced reporting were impugned by the Sri Lanka Rupavahini Corporation by way of a fundamental rights application to the Supreme Court on 31st March 2004, as was the Commissioner’s appointment of a Competent Authority to take over certain news and political programmes that were seen to be flouting those guidelines. The petitioners’ prayer for interim relief by way of suspending the guidelines and staying the appointment of the Competent Authority were rejected by the Supreme Court.

Hindsight only reinforces that these events were at the time considered remarkable for the fact that the legal exercise was played out as if the state media institutions were an organic part of the ruling party, the United People’s Freedom Alliance (UPFA). That is, in bringing into sharp relief, perhaps inadvertently, the real nexus between the state media institutions and the political party that controls them, the affair demonstrated more forcefully than the most pungent academic or political criticism, the wholly unacceptable nature of Sri Lankan state media institutions. Even the fact that the Commissioner was exercising powers conferred by the Seventeenth Amendment (and the attendant enabling legislation, the Competent Authority (Powers and Functions) Act No. 3 of 2002) was not sufficient deterrence in the attempted justification for using state media institutions in the pursuit of party political interest.

Read this PDF in Tamil here.

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