Right of the viewers and listeners paramount- Supreme Court decides

The verdict on two fundamental rights petitions against the abrupt censorship of live discussion programme, ‘Ira Anduru Pata’ aired on Rupavahini Channel on 4th November 2008, was announced yesterday (17).

Announcing the verdict on the two fundamental rights petitions that was pending for 12 years, the Supreme Court ruled that the media is not restrained from publicizing or broadcasting criticism provided that such criticism is legitimate, and the objective of the criticism is not for one to obtain an undue advantage to the disadvantage of another.

These fundamental rights petitions were filed by the then convener of the Free Media Movement, Uvindu Kurukulasuriya and the then feature editor of the Ravaya newspaper, Jayasiri Jayasekara.

On 3^rd November 2008, Petitioner Kurukulasuriya was invited by the Sri Lanka Rupavahini Corporation (SLRC) to participate in ‘Ira Anduru Pata’ (Challenge the Darkness) to discuss ‘Private Television Broadcasting Station Regulations of 2007,’ issued and published in the Gazette Extraordinary No. 1570/35. He was to take part in the programme with two other panelists, Senior Lecturer of the Department of Philosophy of the University of Peradeniya and an advisor to the Ministry of Media and Telecommunication, Charitha Herath and Dhamma Dissanayake, a Senior Lecturer of the University of Colombo and a Director of the Sri Lanka Foundation.

Following a number of telephone calls the second respondent of the case had received, querying as to why his Corporation had permitted a Petitioner who had challenged the validity of the Private Television Broadcasting Station Regulations of 2007 by way of a Fundamental Rights Application, to appear on National Television and refer to matters which were the subject of a case pending before the Supreme Court, the programme was interrupted halfway through and it was not recommenced.

After that, Kurukulasuriya complained of the infringement of his fundamental rights to the right to freedom of expression, under Articles 10, 12(1), 12(2), 14(1), 14(1)(a) of the Constitution due to the abrupt termination and/or censoring of the programme ‘Ira Anduru Pata’ in which he was appearing as a panelist.

The second petitioner, Jayasekara, a viewer of the same programme ‘Ira Anduru Pata’ who complained that the decision of the Respondents to abruptly stop and/or censor the televising of that particular episode of the programme on 4^th November 2008 was an infringement of his fundamental rights to information as a television viewer and citizen, under the Articles 10, 12(1), 12(2) and 14(1)(a) of the Constitution.

Sri Lanka Rupavahini Corporation was held as the 1^st respondent to this case and Dr. Ariyaratne Athugala The Chairman & the Director-General of SLRC, Chairperson of SLRC Enokaa Sathyangani, Programme Producer of SLRC Lakshman Muthuthantri,  Minister of Mass Media and Information Anura Priyadarshana Yapa, Minister of Finance and Mass Media Information Mangala Samaraweera, Attorney General, Attorney-General’s Department, the Chairman & the Director-General of SLRC Sarath Kongahage, Minister of Mass Media and Information Keheliya Rambukwella were the other respondents of this case respectively.

The Respondents submitted opinion pieces written by Kurukulasuriya, which would arguably amount to contempt of court to demonstrate that the Petitioner has acted in a similar manner on previous occasions and alleged the petitioner of sub-judice. Those opinion pieces, however, were of little use as justification for the discontinuation of the programme as they have been published much later in 2011 and 2013, the Supreme Court ruled.

“Sub judice or commenting on ongoing legal proceedings is one form of contempt of court recognized in Sri Lanka. Although contempt of court as an offence is recognized, the constituent elements of contempt of court have not received statutory recognition. What would constitute contempt in the eyes of the court would vary according to the facts and circumstances of each case.”

“The Petitioner Kurukulasuriya did not speak of anything that would materially interfere with the judicial proceedings in the particular criminal case or criticize the court. He merely alluded to the factual situation regarding the detention of the said journalist. The Petitioner stated that the journalist was detained for writing two articles, to highlight the regime abusing provisions of the Prevention of Terrorism Act. That statement could hardly influence public opinion and have a material impact on the outcome of the case. Therefore, it would be an overreaction to say that the Petitioner made a statement that would be held in contempt.”

In the Supreme Court decision, it was also mentioned that it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.

“There could be a number of persons seeking broadcast licenses, but due to limited availability of frequencies to allocate, even though all applicants may have the identical right to a license, only a selected few can be granted the license and others will necessarily have to be denied the license. In that context a licensee is permitted to broadcast, but as observed in the case of Red Lion Broadcasting (supra) the licensee has no constitutional right “to be the one who holds the license or to monopolize a radio frequency to the exclusion of his 31 fellow citizens”. In that context a broadcaster who operates on a (frequency) license granted by the State has the duty to uphold and safeguard the rights of the public. As Justice White said in the Red Lion Broadcasting case;

Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licenses in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment [freedom of speech and press]. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”