The bill as a whole, is likely to be found inconsistent with the Constitution
One way of avoiding direct political involvement in content regulation is for licensees of a particular class to collectively develop codes of practice with mandatory public participation, have them approved by an independent commission, and incorporated as license terms. If the code is believed to have been violated, a set procedure can be activated. Serious infractions can be dealt with as license-condition violations. Others can be settled. If the commission is independent, the entire process will be insulated from politics
The Broadcasting Regulatory Commission (BRC) bill has just been opened for consultation. This is good, because it is difficult to find anything good about it other than the openness to consultation. What is wrong with it is not that it contains provisions for license cancellation, as some in opposition have claimed; it is that BRC will be an instrument of the party controlling the government. What is wrong is that the bill is the opposite of good media regulation.
Modern regulation was introduced to Sri Lanka in the 1990s through the Telecommunications Regulatory Commission (TRC). The concept was so foreign that we had to coin and popularise a Sinhala neologism. But the legislation was quite imperfect. Ex officio, the Chairman was the Secretary of whatever ministry the Commission happened to be parked under at the time. The Director General served “at pleasure.” What this technical term means is that the minister can appoint whoever he wants; reasons need not be given for dismissal.
Independent regulation emerged in the United States at the end of the 19th Century to deal with contentious issues like railroad pricing, insulated from political interference. Regulation of electronic media came several decades later. Given the decisive role played by media in politics, it was seen as even more important to ensure that media regulators acted according to law, meticulously followed procedure, and did not bend to political pressure. The US Federal Communications Commission is considered the world’s first media regulatory agency.
This historical context is not irrelevant to Sri Lanka. In 1997, the Supreme Court held: “The Sri Lanka Broadcasting Authority Bill as a whole is inconsistent with art 10 of the Constitution. We determine that the Sri Lanka Broadcasting Authority Bill requires to be passed by not less than two-thirds of the whole number of Members of Parliament (including those not present), and approved by the People at a referendum in accordance with art 83 of the Constitution.”
This was a sweeping and rare ruling: the bill was held repugnant as a whole based on jurisprudence developed in the context of independent media regulation in the US. The drafters of the present bill have completely disregarded the precedent set by Athukorale and others v. Attorney General.
G.P.S. de Silva CJ, Amarasinghe J and Ramanathan J held: “The regulatory body envisaged by the Bill clearly lacked that independence, since its members were government appointees with no security of tenure, and it was obliged to follow directions given by the minister. Moreover, the Bill would empower the minister to interfere with the presentation of programs and commercial advertising, which would undermine the principles of fairness, infringe the public right to information and deprive certain broadcasters of sponsorship income on a legally unacceptable discriminatory basis.”
The bill proposes a five-person Commission. Three members are appointed by the President with the approval of the Constitutional Council. Ex-officio members are the Secretary of the Media Ministry (who will also be the Chief Accounting Officer of the Commission) and the Director General of the TRC (who lacks statutory independence as shown above). It is well known that secretaries to ministries are appointed and changed at will by the President. The President can appoint any member as chair. Given the enormous powers of a ministry secretary/chief accounting officer, it will be difficult for anyone else to effectively function as chair.
Appointment procedures that involve different parts of government are one way to ensure the appointment of well-qualified persons to regulatory bodies. This applies only to three of the five members of the Commission. If one looks at the precedent of the TRC which also has two ex-officio members and three appointed members, it is unlikely that these three appointed members will play a decisive role. But even they have been put on a short leash.
The whole purpose of independent regulation is that the regulators will take decisions based on the facts, according to law, unswayed by political considerations or pressure. That is normally operationalised by making their removal difficult. But according to s. 9(2) of the bill, the President can simply remove an appointed member based on his opinion of misbehaviour, after informing the Constitutional Council. No concurrence; just information, echoing the language used in the late unlamented 20th Amendment.
The Director General of the BRC is responsible for the exercise of BRC’s powers under the direction of the Commission. Because the members are part time, this is a powerful position. The proposed Anti-Corruption Bill provides for the Director General of the anti-corruption body to be appointed and removed with the approval of the Constitutional Council. But the BRC Director General has no such protections. Appointment and removal is at the discretion of the minister, subject to approval by the not-independent Commission.
S. 5(c) specifies that the licenses will be annual. This indicates a deep ignorance of the investment required to operate modern broadcasting systems and a disregard for the resources that needed to conduct proper license-renewal procedures. It is common sense that a degree of certainty is necessary for capital investments in broadcast networks, studios, etc. Annual licenses do not provide that.
There is no point in issuing licenses that cannot be cancelled. Licenses should be for specific terms and there should be certainty during the term. But lesser and greater violations of license conditions must have consequences. Otherwise, why have license conditions at all? In regulatory practice, cancellation is described as a “death sentence,” something that is extremely rare (but in Sri Lanka, it has been done twice in the past 15 years). In most instances, the penalties take milder forms. For any penalty to be imposed, a procedure that embodies the principles of natural justice must be followed.
Best practice would be license terms that are of five to ten years duration, with specified procedures for renewal and modification. Because investment tends to be withheld in the last few years of a license, it is advisable to provide a presumption of renewal in the last two years on good behaviour. But none of this will make sense if licenses are defined as annual in the statute itself.
How will broadcasters make investments and operate in the context of annual licenses? Proper license renewal or license-condition-violation procedures are impractical in the short one-year cycle, they will assume that decisions will be taken based on a different logic. Getting along with the Minister, contributing to his favourite charities, etc. and pandering to the members and officials of the BRC will matter more than adherence to license conditions. The risks will be high, but they will be factored into the traditional patronage-based system, as they are done now.
For the past 40 years, licenses have been issued without fees, defined durations, and stated criteria and procedures for license-condition violations. Yet, an entire radio network had its licenses cancelled overnight in 2007 (and had them restored only when the owner swore fealty to the ruling party). A satellite TV service was shut down overnight with nary a hearing, and its equipment was confiscated in 2006. The equipment was released, and the license restored by the courts only when the owner agreed to sell the company and make a large donation to the then Chief Justice’s favourite charity.
Scope of regulation
S. 5 indicates that the BRC will regulate broadcasting services. The interpretation section is incomplete. No definitions have been provided, other than for the term “Minister.” This is puzzling because a 2018 report that was commissioned by the then minister provided the following definition, among others:
Broadcasting services: “Services that deliver TV programmes or radio programmes to persons having equipment appropriate for receiving those services using that part of the electromagnetic spectrum allocated for broadcasting by the International Telecommunication Union.”
That report also provided for the regulation of retransmission services (cable and satellite broadcasting), distinguished from broadcasting services. Perhaps the problem was the absence of these retransmission services in the text. The drafters were perhaps planning to develop a definition of broadcasting services that would include retransmission, as indicated by s. 6(e) which states that the Commission will determine the number of licenses that can be obtained by a person or an entity for the purpose of providing a broadcasting service. Why would multiple licenses be required unless different elements of the system are to be separately licensed?
For licensing to be meaningful, it is necessary for the operation of a broadcasting service (once defined) without a license to be an offence. S. 18 declaims that no person or entity shall operate a broadcasting service in Sri Lanka except under the authority of a license issued by the Commission. But for this to have teeth, operating without a license must be an offense. That section is missing.
Without clarity on what must be done under license there will be room for the repetition of actions such as the arbitrary closure of CBNSat and LBN in 2006. Furthermore, the government or the regulator will be unable to act against the provision of satellite broadcasting services by entities not based in Sri Lanka. Domestic satellite broadcasting service operators allege that this constitutes unfair competition in they have to pay Sri Lankan taxes and comply with domestic laws. How can the grand objects set out in s. 5 be achieved if a significant proportion of the populace, possibly the majority in certain provinces, is completely outside the Sri Lankan system and get their news filtered through Tamil Nadu eyes?
S. 6(g) states that the Commission will “monitor and regulate electronic broadcasting services.” The rare inclusion of the adjective “electronic” may lead one to interpret the above phrase as involving technical regulation of the use of frequencies used in broadcasting. One of the principal rationales for regulating broadcasting is its use of scarce frequencies. Will the BRC have authority over the frequencies allocated for broadcasting by the International Telecommunication Union?
Ministerial regulation of content
Athukorale frowned on ministerial interference in matters of content: “The minister, with his unbridled power to make regulations, is placed in a position where he might, through ‘guidelines’, interfere with the presentation of programmes and thereby undermine the principles of fairness, which is at the heart of responsible broadcasting.”
One way of avoiding direct political involvement in content regulation is for licensees of a particular class to collectively develop codes of practice with mandatory public participation, have them approved by an independent commission, and incorporated as license terms. If the code is believed to have been violated, a set procedure can be activated. Serious infractions can be dealt with as license-condition violations. Others can be settled. If the commission is independent, the entire process will be insulated from politics.
S. 5(l) empowers the commission to formulate codes of conduct and s. 6(k) to formulate codes of practice. But s. 19 only empowers the investigation committee to investigate violations of license conditions and ethics, not violations of codes of conduct or practice. References to multiple codes suggest translation or other errors. It is unlikely that the above-described model of developing and enforcing codes of practice insulated from politics is envisaged in the bill. In any case, there is no independent commission to regulate matters of content.
In the bill, the terms of a license are set out in regulations made by the minister and approved by Parliament (s. 34). The commission has no say. It directly contradicts the Athukorale ruling.
This poorly drafted bill is contrary to regulatory good practices. If assessed using the criteria set out by Athukorale, the bill as a whole, is likely to be found inconsistent with the Constitution. It cannot be fixed by piecemeal amendments. If what is being proposed is regulation, it would be useful to understand the basics of regulation. A return to the drawing board appears the only appropriate course of action.