Athokorale and Others v Attorney-General

Supreme Court, S.D. No. 1/97-15/97
 
 

Summary

This case arose out of a constitutional challenge to the Sri Lanka Broadcasting Authority Bill. The Bill sought to establish a regulatory authority for the broadcast media and a number of content restrictions for broadcasters. The Supreme Court of Sri Lanka, quoting an Article 19 publication, held that the Bill was discriminatory in that it established different regulatory schemes for private and public broadcasters. Quoting Article 19 again, the Court held that the Bill breached the constitutional guarantee of freedom of expression by establishing a regulatory authority that was not independent of government, by granting the Minister regulatory power to limit the content of broadcasts, by requiring annual licence renewals and by restricting freedom of expression on grounds not provided for in the constitution.

Facts

The government of Sri Lanka published the Sri Lanka Broadcasting Authority Bill (SLBAB) in the Government Gazette on 21 March 1997 and placed it on the Order Paper of Parliament on 10 April 1997. Fifteen individual petitions challenging the constitutionality of the Bill were lodged with the Supreme Court on the 15th and 16th of April. The Supreme Court issued its decision on May 5th.

The SLBAB sought to establish a regulatory authority for radio and television broadcasters. All but one of the members of the Board of Directors of the Authority were either secretaries to ministers or appointed by ministers; the other was the Chairman of the National Film Corporation. The responsible minister was empowered to remove members from the Board.

The SLBAB envisaged a mandatory annual licensing scheme for radio and television broadcasters. The Authority was given the power to issue licences and to attach certain conditions to those licences. It was also authorised to suspend or cancel licences for breach of the conditions.

The Authority was required to ensure that broadcasters and programmes satisfied a number of content conditions. General obligations were imposed on broadcasters, among other things, to respect prevailing community attitudes relating to taste and decency, to produce high quality and innovative programmes, to maintain a programming balance that met the "just requirements of the general welfare of a democratic society", to present news programmes impartially and with due regard for accuracy and the public interest, and to provide balanced coverage of matters of public interest. Broadcasters were also specifically required to refrain from broadcasting programmes that might be detrimental to the local film industry; offend against public morality; lead to crime or public disorder; promote racial or religious disharmony; or jeopardise the sovereignty or national security of Sri Lanka.

The responsible minister was empowered to "make regulations prescribing the guidelines to be followed by persons licensed under this Act in the presentation of programmes...."

Decision

In a unanimous decision, the three judges hearing the petition held that the SLBAB was inconsistent with the constitution and could therefore only be brought into force if passed by a two-thirds majority in Parliament and approved by the people in a general referendum.

One of the more significant aspects of the decision was the holding that the Bill, by establishing different regulatory schemes for public and private broadcasters, was discriminatory. Distinguishing between different classes of persons was acceptable, but only where a rational basis for the differentiation existed. No such basis had been suggested by the government in this case and so the Bill was held to be discriminatory. In making this holding the Court quoted extensively from Article 19's "Broadcasting Freedom - International Standards and Guidelines" which calls for a single regulatory body for the broadcast media.

The Court then went on to hold that limited frequency availability meant that regulation of broadcasting, both for technical and certain other reasons, for example, to prevent monopolies, was legitimate. Such regulation, however, was only consistent with the constitutional guarantee of expression if the regulatory authority was independent of government. The composition of the Board and members’ lack of security of tenure, coupled with the broad regulatory powers of the minister, meant that the Authority lacked the requisite independence. The Court noted significant differences in this respect between the SLBAB and its Indian, South African and American counterparts.

The "unbridled" power of the minister to prescribe guidelines governing programming was not consistent with the constitutional requirement that any restrictions on freedom of expression be "provided for by law". This was particularly true given that such guidelines needed neither to be published in the Gazette nor approved by Parliament. In addition, the chilling effect of the annual licence renewal requirement was "obvious."

Finally, the content restrictions prescribed by the SLBAB were too broad, general and imprecise to fit within the scope of the restrictions on freedom of expression allowed by the constitution. As the Court noted: "[G]overnmental regulation that may be accepted as tolerable must be drawn with narrow specificity." Although requiring balance in programming was acceptable, several other provisions of the SLBAB did not pass constitutional muster. The Court found the obligations to produce high quality, innovative programmes, to meet the just requirements of the general welfare of a democratic society, to promote the local film industry, to respect prevailing community attitudes of taste and decency and to ensure that news programmes were in the public interest particularly offensive.

This landmark decision lays down the following important principles:

• good reasons are required to justify different rules for public and private  broadcasters;
• bodies with regulatory powers over the media must be independent of government;

• regulations simply issued by a minister do not qualify as "provided for by law";
• broad, general or vague restrictions on freedom of expression are unacceptable.
 

__________________
BY:
Toby Mendel, Head of Law Programme, Article 19

In Athokorale and Others vs Attorney-General, the Supreme Court of Sri Lanka, quoting an Article 19 publication, held that the Broadcasting Authority Bill was discriminatory