Broadcasting is essentially a mode of expression. Legal aspects of broad-casting cannot be considered in isolation and should necessarily be considered in the broader context of freedom of speech and expression, including publication. Freedom of speech and expression begins with the right to freedom of speech and the freedom of the press, and goes on to encompass expression by means of motion pictures, use of ampli-fying systems, radio broadcasts and television broadcasts.
Freedom of speech and expression is generally taken for granted and need not be expressly recognised by law, It is by imposing restrictions and regulations that the law draws attention to the concept of freedom of speech and expression, The extent to which such restrictions and controls are to be found is perhaps a good yardstick to determine how free a society is. A free democratic society introduces as few curbs as possible on freedom of speech and expression, and those that have been imposed can and ought to be justified in the larger interest of society.
In Sri Lanka, the-freedom of speech and expression is legally recognised and can be enforced by the courts. Article 18(1)(g) of the 1972 Consti-tution of Sri Lanka recognises the right to freedom of expression for every citizen as a fundamental right and freedom subject to the restric-tions prescribed by law in the interests of national unity, integrity, national security, national economy, public safety, public order, the pro-tection of public health or morals, the protection of the rights and freedoms of others or giving effect to the Principles of State Policy. However, all existing laws could operate notwithstanding any inconsis-tency with the said right.
Similarly, Article 14(1)(a) of the Constitution of the Democratic, Social-ist Republic of Sri Lanka promulgated in 1978, also guaranteed the freedom of speech and expression, including publication to every citi-zen subject to the specific restrictions prescribed by law in the interests of racial and religious harmony, or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence, in addition to the general restrictions found in the 1972 Constitution. However, the existing written and unwritten laws are valid and operative notwithstanding any inconsistency with the said right. Under the existing Constitution, any violation of this fundamental right by an executive or administrative action could be redressed by the Supreme Court in terms of Articles 17 and 126 of the Constitution.
Article 14(1) (a) of the Constitution, which guarantees freedom of speech and expression, has been interpreted by the Supreme Court in many a case. In the case of Joseph Perera Vs. Attorney-General (1992) 1 SLR 199, Chief Justice Sharvananda stated, "Freedom of speech and expression means the right to express one's convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode... It includes the freedom of discussion and dissemination of knowledge. It includes the freedom of the press and propagation of ideas; this freedom is ensured by the freedom of circulation...Freedom of speech and expression consists primarily not only of the liberty of the citizen to speak and write what he chooses, but of the liberty of the public to hear and read what it needs...The fundamental principle involved here is the people's right to know. The freedom of speech guaranteed by the Constitution embraces, at the least, the liberty to discuss publicly all matters of public concern without previous restraint or fear of subsequent punishments."
In the case of Visuvalingam Vs. Liyanage (1984), the Supreme Court accepted the right of a recipient to information as part of the fundamental right of freedom of speech and expression. Justice Mark Fernando held in the case of Amaratunge Vs. Sirimal (Jana Ghosha Case) (1993) that "The right to support or to criticise governments and political parties, policies and programmes is fundamental to the democratic way of life, and the freedom of speech and expression is one which cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions." Again, in the case of Victor Ivan Vs. Sarath N. Silva (1998) Justice Mark Fernando stated, "The freedom of the press is not a distinct fundamental right, but it is a part of the freedom of speech and expression including publication, which Article 14 (1) (a) has entrenched for everyone alike. It surely does allow the pen of the journalist to be used as mighty sword to rip open facades which hide misconduct and corruption, but it is a two-edged weapon that be wielded with care not to wound the innocent while exposing the guilty."
Thus, two matters of fundamental importance arise from the pronouncements of the Supreme Court of Sri Lanka. One is that the freedom of speech and expression would include the right to broadcast and telecast by the broadcaster and the right to listen and view by the public. Secondly, the freedom of broadcasting is not a distinct fundamental right but is part of the fundamental right of freedom of speech and expression.
Restrictions on freedom of expression
However, as already discussed earlier, freedom of speech and expression including publication is not an absolute or unbridled right but is subject to numerous restrictions, some of which are as follows:
(i) Parliamentary (Powers and Privileges) Act No. 21 of 1953 as amended by Acts No. 05 of 1978, 17 of 1980, 37 of 1987 and 27 of 1997.
(ii) The legal principles applicable to situations of sub judice and the contempt of court proceedings.
(iii) Laws relating to Civil and Criminal defamation.
(iv) Press Council Law No. 05 of 1073.
(v) Profane Publications Act No. 41 of 1958.
(vi) Obscene Publications Ordinance No. 04 of 1927.
(vii) Official Secret Act No. 32 of 1955.
(viii) Newspaper Ordinance No. 05 of 1939 as amended by Acts No. 18 of 1951, 48 of 1973 and 05 of 1076.
(ix) Printers and Publishers Ordinance No. 01 of 1885 as amended by Acts No. 28 of 1951, 48 of 1973 and No. 06 of 1976.
(x)Printing Presses Ordinance No. 16 of 1902as amended by Acts No. 20 of 1951, 22 of 1955 and Law No. 48 of 1973.
(xi) Telegram Copyright Ordinance No. 01 of 1898 as amended by Ordinance No. 01 of 1898.
(xi i) Election Laws.
(xiii) Regulation 14 of The Emergency (Miscellaneous Provisions and Powers) Regulation No. 01 of 2000 published in the Gazette ex-traordinary No. 1130/8 dated 03.05.2000 as amended by the Gazette extraordinary No.1138/34 dated 01.07.2000. It may be noted that the amendment was brought in soon after the Su-preme Court held in the case of Leader Publications (Pvt.) Limited Vs. Ariya Rubasinghe and 06 others S.C., decided on 30.06.2000, that the prohibition on publishing the Petitioner's publications including the Sunday Leader and on using the printing press by the Competent Authority was a nullity and of no force or avail in law. However, the Supreme Court in making this order, did not consider the merits of the case but held in favour of the Peti-tioner on the technical ground that the original regulation 14 did not empower the President to make the appointment of a Compe-tent Authority. This was immediately corrected by regulation 14 (1) of the amended regulation 14.
On perusal of the major statutes specifically applicable to radio and television broadcasting, it appears that in the sphere of broadcasting, the fundamental right of freedom of speech and expression is subjected to a higher degree of government control than is the press.
Ceylon Broadcasting Corporation Act No. 37 of 1966 as amended by Act No. 48 of 1988 and Sri Lanka Rupavahini Corporation Act No. 06 of 1982 asamended by Act No. 43 of 1988 are the two major statutes in the area of radio and television broadcasting. Ceylon Broadcasting Cor-poration Act provided for the establishment of the Ceylon Broadcasting Corporation, now known as Sri Lanka Broadcasting Corporation, for the purpose of carrying on the service of broadcasting in Sri Lanka and for the issue of licences by the Minister concerned to other persons for the establishment of private broadcasting stations. The other salient fea-tures in this statute are that the Corporation is obliged to comply with the general policy of the government with respect to broadcasting and with any directions given by the Minister pursuant to government policy. All members of the corporation including the chairman are appointed by the Minister, who can remove them without reason stated. Further, the Minister would issue a licence for the establishment and maintainance of any private broadcasting station in Sri Lanka after consultation with the Corporation. In addition, the Minister can make regulations inter alia for supervision by the Corporation of programmes broadcast by private stations and for the prohibition, regulation or control of the ownership of private broadcasting stations by prescribed persons or classes of persons.
Sri Lanka Rupavahini Corporation Act No. 06 of 1982 provided for the establishment of the Sri Lanka Rupavahini Corporation for the purpose of carrying on the service of television broadcasting in Sri Lanka. Here too, all members of the Corporation including the Chairman are ap-pointed by the Ministers and they can be removed by the Minister in charge of the subject without assigning any reason, and such removal cannot be called in question in any court. The Corporation is charged with the duty of complying with the directions given by the Minister as to the duties and powers of the Corporation. No person other than the Corporation can maintain a television broadcasting station unless such a person has obtained a licence from the Minister which will be issued in consultation with the Corporation.
Therefore, it appeared that the government in power will have a consid-erable influence and even control over the radio and television broad-casting carried out — not only by the two Corporations, but also by the private radio or television stations. The control of the government over these two important and popular means of circulation of ideas and information is further strengthened by the emergency regulation men-tioned earlier. In addition, it must be borne in mind that the general restrictions and prohibitions on freedom of speech and expression as enumerated above are also applicable in varying degrees to radio and television broadcasting.
I would also like to refer to you the Supreme Court judgement on the Sri Lanka Broadcasting Authority Bill published in the Gazette on 21, March 1997 and placed on the order paper of Partliament on 10, April 1997. Fifteen citizens and incorporated bodies filed Application Nos. 01-15 of 1997 — SC Minute dated 05.05.1997 in the Supreme Court to determine whether the provisions of the Bill are inconsistent with the Constitution. The Supreme Court decided that there was no rational basis for treating Sri Lanka Broadcasting Corporation and Sri Lanka Rupavahini Corporation with special favour as against the I icenced private stations with regard to required standards governing the content of programmes, the manner of complying with those standards and the consequences of failing to comply with those standards, and therefore the Court held that the Bill was violative of the principle of equality and inconsistent with Articles 10, 12 and 14 (1)(a) of the Constitution. The Supreme Court held in the course of the judgement that " without free political discussion, no public education, so essential for the proper functioning of the process of popular government , is possible. The welfare of the community requires that those who decide shall understand them. The right to hear is within the meaning of speech."
"It is of paramount importance that programmes should be balanced so that viewers may be free to form their own opinion. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive them. It would be a barren market place of ideas that had only sellers and no buyers".
Ensuring independence of PSBs
In the background of this legal framework presently in existence with regard to radio and television broadcasting, it has been suggested by many individuals and organisations such as Article XIX (International Centre against Censorship) inter alia that, to ensure the independence of the Sri Lanka Broadcasting Corporation, Sri Lanka Rupavahini Corporation and Independent Television Network, the State ownership and control should end by creating a governing board and a financial structure for these bodies, which is independent of the government allowing them to fulfil their public service functions. Similarly, it has been suggested that an independent broadcasting authority should be established with the sole discretion to grant licences to privately owned broadcasting stations. The Parliamentary Select Committee on the Leg-islative and Regulatory framework relating to media that was estab-lished, is understood to be considering the issues relating to broadcast-ing, while the committee chaired by Mr. R.K.W. Goonasekere, Senior Attorney-at-Law appointed by the Media Minister to study the existing legislation and regulations affecting media freedom and the public's right to information and to make recommendations on necessary amend-ments or repeal of existing legislation as well as new legislation to ensure the freedom of expression and right to information, has made several recommendations including the one that guarantees freedom of speech and expression in the Constitution must be brought into confor-mity with Sri Lanka's international legal obligations set out in the In-ternational Covenant on Civil and Political Rights (ICCPR). This Commit-tee has also suggested that the provisions in the Penal Code on criminal defamation should be removed.
However, the Government's Proposals for Constitutional Reform pub-lished in October 1997, and the Bill of the Constitution of the Republic of Sri Lanka presented to the Parliament on 3 August 2000 do not seem to have incorporated the recommendations of the Goonasekere Commit-tee in order to broaden the freedom of speech and expression which would necessarily include both radio and television broadcasting guar-anteed in the existing Constitution as well as in the proposed Constitu-tional Reforms referred to above.
Could this be a case of easier said than done? The efforts of media advocates will show us the way.
Chandana Prematilaka is an attorney-at-law based in Sri Lanka.