An Article by the Asian Human Rights Commission
by Basil Fernando
In a separate article, I reported a recently delivered judgment by the Supreme Court of Sri Lanka regarding an arbitrary termination of broadcast by the Rupavahini Corporation in 2008. The purpose of this article is not to recapture the findings of that judgment but to go into some of the factual information reconfirmed by the judgment.
A Rupavahini Program invited three panelists to discuss some matters of public interest, relating to a gazetted notification. It announced some new regulations relating to broadcasting. While the panel discussion was going on, the Director who is also the General Manager, disconnected the line from the control room to the studio, thus disconnecting the program.
An issue that has not been explained is why the Director/General Manager decided to do this disconnection. Did he act on his own? Or did he act on the instructions of someone from above? If that is the case, then WHO gave the order to disconnect a live program that was being broadcasted?
This issue is important because, in many of the Government or Semi-Government institutions, numerous and questionable things take place. And, the persons ultimately carrying out any orders, are not deciding the issue on the basis of law and ethical practices relating to a particular matter, the episode is the result of a fear syndrome BUT on the orders of unknown persons who hide behind these state machinery.
It is worse if this episode is a product of a fear syndrome affecting the Rupavahini Corporation and the public sector in general. Has fear become a self-regulating factor? Is it only blatant political propaganda that media controllers are comfortable with? Is the fear of the political lords the prime mover of guiding the media policy and performance?
A RIGHT TO A RATIONAL EXPLANATIONS
Why is it necessary to know what actually went on behind the scenes in terminating the broadcast? The answer is that it is a matter of Public Interest. The Public has the right to know when certain actions are done which violate their rights as well as the rights of particular, concerned individuals.
Any attempt to correct wrongdoings requires details about the manner in which that wrong had taken place. The Supreme Court held that on serious matters, such as the Freedom of Expression and the Right to Freedom of Information and Thought, a serious violation amounting to an abuse of fundamental rights guaranteed by the Constitution, had taken place. The rights guaranteed by the Constitution are also rights that are internationally considered very fundamental to a civilized way of life. Thus the gravity of the wrong cannot be underestimated.
If there was a justifiable reason, and it came from a decision of this Director who was also the General Manager, then he should have been able to explain the matter himself or through the Anchor in the broadcast. The Anchor acted as the organizer inviting the panel to convene. There was no attempt to give any explanation whatsoever.
It is the right of citizens in general and the panel discussion participants of this program, in particular, to have had an explanation. A clarification of a very serious decision was required.
A rational relationship could only take place in a suitable environment when something untoward happens, which contradicts all expectations.
What came out in the Courts were afterthoughts, to justify an action that had already been taken. An action only after the fundamental rights application had been filed by two petitioners. They were of the opinion that their rights had been violated by those representing the Rupavahini Corporation. Naturally, these explanations were added and something needed to be said to justify an act before the Courts and for that purpose, any argument can be made by anyone. However, what is important are the reasons given contemporaneously at the time when the wrong was done.
It is said that the Director/General Manager sought the advice of the Legal Officer on the issue. He gave the advice to stop the conversation that was taking place at the time. If this is true, then the Legal Officer would have had to report about, what he was asked for, by whom, and the advice given.
If he did give the advice as claimed during the case, then in terms of the judgment of the Supreme Court, he had given wrong legal advice. Did he give the wrong legal advice because he did not know the Law or misunderstood the Law? Or is the whole reference to the legal advice merely a construct made for the purpose of the case?
What is important from the point of view of the Publics’ interest is twofold. First, on matters of public importance, if legal advice is asked for and given, there is a Duty of Care which is the concern of two individuals. Second, these are on the part of both the person who requests the advice and the person who gives the advice. They must both submit their reasons in writing. A Lawyer, representing a Corporation who makes decisions, which may affect the performance of public duties by the Corporation, has a Duty of Care to examine the matter thoroughly. After serious considerations, he must give his reasons and they, too, must be in writing.
But, should all the persons taking an active part be merely acting on the orders from somewhere else, then they are in trouble. They are in a position where they are unable to produce the necessary information in explaining the rationale process by which they arrived at their decision.
What this demonstrates is a matter that applies not only to broadcasting programs but to many other affairs taking place at the present time. Serious difficulties with serious impact on the Public. That is the casual nature within which people acting for the Government or on behalf of Semi-Government institutions act. They casually decide on extremely serious matters. The matter may be sometimes taking a decision to dispose of a person by extra-judicially executing him for whatever reason. Or it may be some other matters of great importance. What has become a permanent part of public life in Sri Lanka is that such decisions could be taken privately. They would be persons acting outside any due process of law, without any consideration for professional obligations owed to the individuals affected or society at large.
The very idea of holding public office and performing public duties involves that they are conducted in a manner that the public expects. There are obligations laid down by Law and by Ethical and other Rational Considerations which are very much embedded in the functioning of any of the professions.
What we have here is a tragi-comic situation. If the entire machinery of the State acting through public or semi-public institutions are one that is remotely controlled OR one that functions without respect for the legal and rational processes AND has no obligation to keep records on issues that relate to their actions. The title of the program under which this panel discussion was conducted was entitled “Ira Andura Pata” (challenging darkness).
In fact, what the program did in this instance was to increase darkness and to exclude light. In summary, look at why the incident was considered in a purely casual way. It is, as if more of those things that happened by themselves, show the extent to which Public Order in Sri Lanka has been disturbed. Actions are taken in total disregard of the notion of the way in which public duties have to be performed.
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.
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