by Basil Fernando
In 2008, an incident took place at a panel discussion organized by the Sri Lanka Rupavahini Corporation. Three panelists were invited by the producer of the programme , ‘Ira Anduru Pata’ to comment on the new set of regulations called ‘Private Television Broadcasting Regulations of 2007’ issued and published in the Gazette Extraordinary no. 1517/35.
The petitioner of one application was Mr. Uvindu Kurukulasuriya who was one of the three panelists. It was to be a 90 minutes long programme.
For 45 minutes of discussion, the three panelists answered questions posed by the producer. The programme was also open to the public, so that they could join in by asking questions by connecting themselves through telephones.
After 45 minutes, there was a break and after the break, the discussion was to continue for another 45 minutes. However, after the break, the producer did not come to the auditorium in time and the three panelists kept waiting.
Then the television began to play some advertisements and songs instead of carrying on with the panel discussion.
Later the producer came to the panelists and announced that the lines to the auditorium had been transferred to the Main Control Room which is under the direct control of the Chairman and General manager and the line had not been transferred to the studio room to continue the programme. Therefore the discussion was abruptly dis-continued.
A listener participating in the discussion was JKW Jayasekara who wanted to participate in the discussion by way of posing some questions by telephone. He was himself a journalist. As the broadcast was stopped abruptly, he called the Rupavahini Corporation to find out what had happened. Having learnt what had happened he also filed a petition before the Supreme Court stating that his fundamental rights as a listener, to participate in the discussion had been violated by this abrupt termination of the discussion.
The Supreme Court took the two petitions filed by these two petitioners jointly and proceeded. Finally, on February 17th, 2021, the Supreme Court decided in favor of the two petitioners, holding that their fundamental rights guaranteed under the constitution had been violated by the respondents who represented the Rupavahini Corporation. Accordingly, the court declared that their rights have been violated and also ordered compensation.
In deciding this case, the Supreme Court has held firmly on a number of issues which are of great importance on various aspects of freedom of expression, media freedoms, freedom of information in order to have a proper exercise of freedom of thought and the duties of broadcasting corporations relating to conduct of such broadcasts.
The court examined the justifications that the respondent’s representatives of the Rupavahini Corporation put forward in their objections filed in the court. These objections were that the petitioner Kurukulasuriya’s remarks made during the panel discussion amounted to be political statements and that these comments also referred to some matters before court and therefore was sub-judice. Respondents further said that that the listeners’ rights that were claimed by the petitioner who was listening to the broadcast had not been violated.
The court in rejecting respondents positions and allowing the petition has painstakingly gone into explanation of number of fundamental rights issues and in the process revisited many of previous judgements of the Supreme Court and also European Court of Human Rights and a few cases from United States.
SC asserted that the political comments cannot be restricted because they are critical and even be unpalatable to some. It stated that “If every speech which points short comings of an incumbent government or politician were to be interpreted as being political speech and censored, no legitimate criticism which could promote better government would ever be made.”
The Court also rejected the argument that reference by Kurukulasuriya to some cases pending before court amount to Sub-judice. “It is pertinent to note that in Common Law jurisdictions contempt of court operates as a safe guard mainly regarding pending judicial proceedings in which the opinion of the jury or the variety of witnesses, may be affected by comments and opinions expressed publicly,” No such statement which could affect such influence has been made during the panel discussion.
SC also held that the discontinuation of the discussion also violated the right to freedom of speech, stating that:
“The lack of credibility in the version of the Respondents, together with their conduct in abruptly discontinuing the programme without informing the Petitioner Kurukulasuriya the reason for such a drastic step, reflects of an imperious attitude on the part of the Respondents, that they have absolute discretion and control over views that are telecasted through the television channel that they are steering. Media institutions certainly should be given discretion to curate their programmes, but such discretion must be exercised within the objectives and parameters set out in the law referred to earlier. Media institutions must curate their programmes to include all views and cater to all citizens equally without manipulating the leverage they have over public opinion.”
The Court also held that Jayasekara’s right to freedom of thought was also violated by the respondents; “I am unable to agree with the argument of the Respondents that the mere desire to participate, is insufficient to clothe the Petitioner Jayasekera with the character of a participatory listener. Even though the Respondents point out that the Petitioner had called the SLRC only after the programme was discontinued, it appears that, in spite of announcing that the viewers can phone in, a telephone number for the public to communicate was not immediately announced. This might have been with the expectation of opening the telephone lines to the viewers at a later round of the discussion. I am of the view that, by being a viewer of a programme with a participatory component via telephone, the Petitioner Jayasekera becomes a participatory viewer. ……….. “As far as Petitioner Jayasekera was concerned in the circumstances of the Application 557/2008, I am of the view that the Petitioner was entitled to receive information purported to be disseminated by the programme in addition to what he may have gathered had he got the opportunity to pose questions to the panelists through the phone-in component of the programme. I agree with the opinion adopted by His Lordship Justice Mark Fernando in the case of Fernando v. SLBC (supra) “ …that information is the staple food of thought and that the right to information simpliciter, is a corollary of freedom of thought guaranteed by Article 10”.
It may be said, that this act of abruptly stopping the panel discussion should never have happened. That such things happen is an indication of high level of irrationality on the part of the Rupavahini Corporation. That the corporation did not have the courage the to admit their wrong doing even after the event and tried to defend their fault for all these long years is also disgraceful and waste of public funds.
It is also sad to see that the case has dragged in the courts for nearly 13 years. Speedier disposing of the case was needed.
However, after even after all that, there is a reason to celebrate a great judgement which hopefully will enhance media freedoms and fundamental human rights. That the decision has come during a time, when media freedom and all other freedoms are facing great threats is also significant.
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The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984, the Hong Kong based organisation is a Laureate of the Right Livelihood Award, 2014.