013-SLLR-SLLR-1999-V-2-BENNET-RATHNAYAKE-v.-THE-SRI-LANKA-RUPAVAHINI-CORPORATION-AND-OTHERS.pdf
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Bennett Rathnayake v.
The Sri Lanka Rupavahini Corporation and Others
93
BENNETT RATHNAYAKEv.
THE SRI LANKA RUPAVAHINI CORPORATION AND OTHERS
SUPREME COURTFERNANDO, J.,
WADUGODAPITIYA, J. ANDGUNAWARDANA, J.
S.C. APPLICATION NO; (FR) 867/96FEBRUARY 18, 25 AND MAY 26 1998
Fundamental rights – Rejection of telefilm offered for telecasting – Absence offair and objective procedure for selecting films – Article 12 (1) of the Constitution.
The petitioner produced a Sinhala telefilm entitled “Makara Vijithaya" at a cost,he said, of Rs. 2.3 million. The 1st respondent Corporation refused to telecastthe petitioner's telefilm during "prime time" for telefilms of that type, viz between8.30 pm and 9.00 pm on Mondays, Tuesdays and Thursdays. The telefilm wasreviewed on three occasions by different boards. On each occasion thedecision was adverse to the petitioner. But he was not told who the membersof the board were, how they had been appointed, what procedure theywould follow, what criteria they would apply, what their views were about thefilm and the reasons for the decision.
Held:
The statutory powers which the 1st respondent has are not absolute, unfettered,or unreviewable; they are held in trust for the benefit of the public, and they cannotbe exercised arbitrarily or capriciously or unreasonably. The airwaves are publicproperty and the State is under an obligation to ensure that they are used forthe benefit of the public, for which purpose the 1st respondent was obliged toestablish and implement a fair and objective procedure to determine whether atelefilm submitted to it was suitable for screening, and if so the time of screening.This obligation has been violated in breach of the petitioner's fundamental rightsunder Article 12 (1) of the Constitution.
Cases referred to:
Red Lion Broadcasting Co. v. FCC (1969) 395 US 367.
Secretary, Ministry of Information v. Cricket Association of Bengal AIR 1995SC 1236, 1282, 1306.
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Fernando v. SLBC (1996) 1 Sri LR. 157.
APPLICATION for relief for infringement of fundamental rights.Sanjeewa Jayawardena for petitioner.
Kolitha Dharmawardena, DSG with N. Pulle, SC for respondent.
Cur. adv. vutt.
June 11, 1998.
FERNANDO, J.
The petitioner produced a Sinhala telefilm entitled “Makara Vijithaya",consisting of 22 episodes, at a cost, he says, of Rs. 2.3 million. Hecomplains that the refusal by the 1st respondent, the Sri LankaRupavahini Corporation, to telecast his telefilm during "prime time"for telefilms of that type (which is between 8.30 pm and 9.00 pmon Mondays, Tuesdays, and Thursdays) was in violation of hisfundamental rights under Articles 12 (1) and 14 (1) (a).
The relief which the petitioner asked for in his petition includeddeclarations that the refusal of prime time for his telefilm was a nullity,and that the Board of the 1st respondent had no right to decide onits suitability'for telecast during prime time, as well as a direction thatit be telecast on prime time. However, learned counsel for the petitioner,in the course of his oral submissions, acknowledged that this wouldrequire the Court to determine, on the merits, whether the telefilmwas suitable for telecast during prime time: that is not the functionof this Court. He asked, instead, for a declaration that the procedureleading up to the refusal of prime time was in violation of Article 12(1), for want of a fair and objective selection procedure, includingcriteria announced in advance, for compensation, and for directionsto the 1st respondent to prescribe and publish the criteria for selectionof teledramas for telecast during prime time, and to set up anindependent and competent review panel to determine whether telefilms(including "Makara Vijithaya") met those criteria.
SCBennett Rathnayake v.
The Sri Lanka Rupavahini Corporation and Others (Fernando, J.)95
It is not in dispute that the petitioner had been producing telefilmssince 1985; that the 1st respondent had accepted and telecast fivetelefilms produced by him between 1986 and 1995, two of which hadover fifteen episodes; that he had the backing of a suitable sponsorfor "Makara Vijithaya", who would meet the 1st respondent's fees andcharges for telecast during prime time; and that on 3.1.96 thepetitioner had duly submitted that telefilm for review, paying the 1strespondent the required review fee of Rs. 500 per episode.
The telefilm was first reviewed on or about 16.1.96, by threepersons ("the preview board"). According to the affidavit dated 26.8.97of the 2nd respondent, the Director-General of the 1st respondent,the "preview board" for a teledrama consists of three persons, andis appointed by the Board of Directors of the 1st respondent, "fromamong University lecturers, artists, dramatists, and musicians, etc.";he did not say who selected the three persons who constituted thepreview board for "Makara Vijithaya": whether it was the Board orsome one else. The petitioner was not officially informed of the result;and he says that on 23.1.96 he asked the 13th respondent, theDirector (Programs), who then called for the file; and it transpiredthat the telefilm had been rejected for telecast unless edited.
The petitioner submitted an appeal to the 13th respondent the verysame day. The telefilm was thereupon submitted for review to "theappeal board", consisting of another three persons, who should havebeen named, according to the 2nd respondent, by the Director-General. Here again he did not say who had named them. By letterdated 29.1.96, the 13th respondent informed the petitioner that it hadbeen approved for telecast outside prime time.
By letter dated 31.1.96 the petitioner again appealed, this time tothe 2nd respondent, the Director-General. Not having received a reply,he complained to the Telemakers' Guild – an association of telefilmproducers formed in December, 1993. Eighteen out of the twenty-onemembers of the executive committee viewed the telefilm, and agreedthat there was no reason to disallow it. By letter dated 25.2.96 theGuild protested to the 8th respondent, the Chairman, stating that aftertwo long discussions (obviously, those of 30.8.95 and 18.9.95, to which
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I will refer later) agreement had been reached as to the basis onwhich the suitability of a telefilm should be determined, and that therejection of "Makara Vijithaya" was unjust and unreasonable. Afterseveral phone calls to the 13th respondent, says the petitioner, the13th respondent told him, on 20.3.96, that the telefilm had not yetbeen submitted for review to a higher body. He then met the 2ndrespondent, who said he had no time to speak to the petitioner,whereupon the petitioner immediately wrote him a letter dated 20.3.96complaining of shabby treatment. By letter P21 dated 22.3.96, the 13threspondent informed the petitioner that “the higher appeal board" hadapproved the telefilm for telecast outside prime time. It is the respond-ents' case that a panel of two persons, consisting of the 5th respond-ent, a director of the 1st respondent, and the 6th respondent,Mr. EMG Edirisinghe, had viewed the telefilm on or about 9.3.96,but the 2nd respondent did not say who had appointed them.
In all three instances, the petitioner had not been told who themembers of the board were, how they had been appointed, whatprocedure they would follow, what criteria they would apply, what theirviews were about "Makara Vijithaya", and the reasons for their decision.
When he received P21 of 22.3.96, the petitioner wrote three letters,all dated 25.3.96. The first was P24 to the Minister of Media andTourism complaining that he had been unfairly treated by the 1strespondent. He said that about one week thereafter – probablyafter the 2nd respondent had become aware that he had complainedto the Minister – the 2nd respondent sent him P25 dated 26.3.96,claiming that the usual procedure was for a three-tiered process ofreview: review (preview?) board, appeal board, and higherappeal board; that the Telemakers1 Guild had agreed to this; and thatpersons nominated by the Guild had also been appointed to thoseboards. The Secretary to the Ministry by letter dated 30.4.96 calledfor a full report from the 8th respondent. No report was sent.
The second was P22 to the 2nd respondent asking for the reasonsfor refusing prime time for “Makara Vijithaya". It was only six weekslater – after the Secretary to the Ministry had called for a fullreport – that the petitioner received a belated reply from the 2nd
SCBennett Rathnayake v.
The Sri Lanka Rupavahini Corporation and Others (Fernando, J.)97
respondent giving reasons. The petitioner’s averment that that replyhad been antedated to 8.4.96 and was received only on 15.5.96(in an envelope postmarked 13.5.96), was not denied by the 2ndrespondent in his affidavit.
The third was P23 to the 13th respondent asking him to specifythe time-belt allotted for telecast of "Makara Vijithaya". That was neverdone, despite a reminder on 6.5.96.
In support of his affidavit, the 2nd respondent produced amemorandum (2R2) dated 4.9.95 from the Secretary of the 1strespondent Board to the Deputy Director-General, General Programs(DDG (GP)), which reproduced the following extract from theminutes of the Board meeting of 18.8.95:
"… It is stated [in the DDG (GP)'s memorandum] that atpresent these teledramas are previewed by a panel of three membersfrom the preview board in the first instance, and if rejected theproducer can appeal… It is then previewed by a separate panelof three members. It has been reported that … [if again rejected]some producers thereafter seek … to bring pressure on the SLRCofficials to accept the teledrama for telecast … the DDG (GP)has proposed appointing a Supreme Appeal Board to make a finaldecision.
The Corporation . . . decided that each teledrama brought byoutside producers should be previewed as follows:
In the first instance:A panel of three members from the
Preview Board, nominated by theDDG (GP)
If an appeal is made A further panel of three members from theby the producer:Preview Board, nominated by the DG
If a further appealis made by theproducer:
The Members of Corporation reserve theright to appoint a third panel for a finaldecision if it feels necessary only.
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Members for this panel will be appointedby the Corporation and include a Memberof the Corporation."
There is a handwritten minute on 2R2 the significance of whichbecame clear only later:
"DDG (GP)
This decision has to be reviewed according to the discussions
we had with TELENISA1."
“TELE Nl SA“ is the English transliteration of the acronym for thename of the Guild in Sinhala.
The 2nd respondent did not produce the Board minute and “theDDG (GP)'s memorandum".
As already noted, no report was sent to the Secretary. TheTelemakers' Guild then wrote to the Minister on 7.6.96, whereupon,the petitioner says, “a certain Mrs. Sumana Pereraj telephoned himand asked [for] another copy of Makara Vijithaya to be viewed byMinistry officials designated by the Hon. Minister"; he complied. Thepetitioner sent a letter of demand to the 1st respondent which, hesays, he withdrew when the Secretary informed him (that it was animpediment to the Ministry taking action. Thereafter,, the Secretaryinformed him that:,
“the Hon. Minister had named three officers to view MAKARAVIJITHAYA and to forward their recommendations. This theRupavahini authorities had however objected to.
The Hon. ■ Minister had then named 10 persons and had re-quested the Rupavahini authorities to select three from amongthemselves and allow them to view MAKARA VIJITHAYA and maketheir recommendations. This too had been resisted by the Rupavahiniauthorities and it had counter-offered to have the film viewed byits Board of Directors to which suggestion the Hon. Minister hadfinally agreed and conveyed his agreement on 16.8.96 [by P29].“
SCBennett Rathnayake v.
The Sri Lanka Rupavahini Corporation and Others (Fernando, J.)99
In his affidavit the 2nd respondent denied those averments.He made no mention of any Ministerial proposals, and did not producethe relevant correspondence. He only produced the 8th respondent'sletter dated 9.8.96 to the Secretary, which said that it was better ifthe final decision was taken by the Board of the 1st respondent.However, that letter made reference to the "additional namessuggested by the Minister", and thus supported the petitioner's version.
But even the Minister's letter of 16.8.96 did not result in promptaction. The petitioner again complained to the Minister on 1.10.96;that complaint was forwarded to the 8th respondent, the Chairman,on 9.10.96. It was only then that the Chairman submitted a reportdated 12.10.96 stating that the telefilm had been viewed by five outof the seven members of the Board, who were unanimously of theview that "Makara Vijithaya" was not suitable for telecast at any timewhatsoever. That was not copied to the petitioner, and was onlyproduced in these proceedings.
By letter dated 1.11.96 the Secretary informed the petitioner thatafter viewing the telefilm the Board of Directors had submitted areport to the Minister that the telefilm was suitable for telecast outsideprime time.
No explanation has been offered for this discrepancy between thereport and the Secretary's letter.
Another curious circumstance is that the 5th respondent, who hadpreviously concluded (as a member of the higher appeal board) thatthe telefilm could be telecast outside prime time, changed his mindwhen he viewed it in the company of his fellow-Board members. Forthat he has offered no explanation up to now.
During the initial stages of the hearing, the learned Deputy Solicitor-General submitted that although the Telemakers' Guild had proposed(in the course of the two discussions held on 30.8:95 and 18.9.95)that their nominees should be appointed to one or another of thereview boards, yet the 1st respondent had not agreed. Accordingly,he submitted, their nominees had not been appointed to any of thethree review boards.
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In the course of the hearing on the second day (24.2.98), itappeared that there were serious inconsistencies, if not contradictions,in the respondents' position, as to several issues:
Whether there had been any agreement with the Telemakers'Guild as to the procedure for review of telefilms, and particularlyas to Guild representation on any review body; and, if so,whether such agreement had been approved by the Board ofthe 1st respondent;
The review procedure established by the 1st respondent;
Whether there had been any breach of such agreement (if any)and/or of such established procedure, in relation to 'MakaraVijithaya';
Whether the Minister had made proposals as alleged by thepetitioner, and if so whether the Board had considered them.
It appeared to us that the 1st respondent, its Chairman andDirectors, and the 2nd respondent had not made a full and accuratedisclosure of the facts and the documents relevant to those issues.Accordingly, on 9.3.98 the registrar communicated our order to the1st respondent to produce the following documents:
All Board minutes and Board papers pertaining to (a) theapplications and appeals made by the petitioner for theselection of the telefilm "Makara Vijithaya" for telecast, (b)the apjjointment of panels for review of that telefilm, and(c) the decisions taken by those panels.
All letters of appointment issued to (a) the members of the“Preview Board" referred to in the Board minute of 18.8.95,and (b) to the members of the three panels which reviewed"Makara Vijithaya".
All Board minutes and Board papers pertaining to (a) thediscussions held on 30.8.95 and 18.9.95 between the SLRC
SCBennett Rathnayake v.
The Sri Lanka Rupavahini Corporation and Others (Fernando, J.)101
and the Telemakers' Guild as to the procedure for the reviewand selection of telefilms for telecast, and (b) the procedureslaid down for the selection of telefilms for telecast. (Thisshould include Memorandom of DDG (GP), and Boardminute of 18.8.95.)
The minutes of the discussion held on held on 18.9.95.
All Board minutes and Board papers pertaining to (a), thecorrespondence with the Minister of Media & Tourismregarding the telecast of that telefilm, and (b) the decisionthat it should be viewed by all the members of the Board,as well as the decision of the Board taken after such viewing.
All correspondence with the Ministry of Media and Tourismregarding the said telefilm during the period March toNovember, 1996 (Ministry reference MTA/M/RC and MTA/M/RC/52).
The respondents' registered Attomey-at-law, by motion dated 26.3.98,tendered the “available documents". Only two Board minutes werefurnished: Minute No. 528.03.01 of 13.9.96 (which recorded that the8th respondent informed the Corporation that he had been directedby the Minister that the members of the Corporation should previewthe telefilm, and that the members had decided to accede to therequest made by the Ministry), and Minute No. 529.06.06 (fixing thedate for such preview). Three letters from the Ministry (two dated June,1996 and one dated 31.7.96) were produced. It is clear from the thirdthat there was another letter of the same date: but that was withheld.The Ministry letters refer to certain proposals made by the Minister,substantially as averred by the petitioner (although he was mistakenas to minor details), They show that the 2nd respondent's denial inthat respect was false. Further, no Board minute or Board paper wasproduced to show that the Minister's proposals were ever put to theBoard; they have been rejected by the 8th respondent, whose position(as stated in his letter dated 9.8.96) was that the final decision shouldbe by the Board. In his reply dated 16.8.96 the Secretary merelyinformed the 8th respondent that the Minister approved that course
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of action. The 8th respondents statement to the Board that he hadbeen directed by the Minister that the Board should preview thetelefilm is therefore in the teeth of the documentary evidence.
The motion went on to state:
“We are unable to forward the following documents … as suchdocuments [have] never been in existence . . ."
Among the documents listed as non-existent were Board minutesand Board papers pertaining to (a) the applications and appeals madeby the petitioner for the selection of the telefilm “Makara Vijithaya”for telecast, (b) the appointment of panels for review of that telefilm,and (c) the discussions held on 30.8.95 and 18.9.95 between theSLRC and the Telemakers' Guild as to the procedure for the reviewand selection of telefilms for telecast.
Further, despite specific mention in 2R2 of “the DDG (GP)'smemorandum" and the Board minute of 18.8.95, no excuse wasoffered for the failure to produce them. The respondents seemed towant the Court to believe that' they too were non-existent.
The motion purported to explain that the practice in appointingreview panels was “contacting the members of the panel on telephonein order to schedule a date and a time convenient to members"; itwas not explained who determined which members to contact, andin which order; and, in particular, which members to summon ifperchance more than three were available. Time was requested toforward the letters of appointment issued to members of the previewboard referred to in the Board minute of 18.8.95. The suggestionappeared to be that a pool of members was appointed by the Board,but panels were constituted most informally, leaving no trace of. theirappointment. Despite the lapse of two months before the next dateof hearing, all that was forthcoming were two letters of appointmentto the "supreme appeal board", issued on 2.8.96 and 1.11.96 – whichwere plainly irrelevant as they were issued after the dates materialto this case.
sc
Bennett Rathnayake v.
The Sri Lanka Rupavahini Corporation and Others (Fernando, J.)103
At the resumed hearing on 26.5.98 we drew the attention of thelearned Deputy Solicitor-General to the available evidence as to theagreed procedure for appointing panels: the 1st respondent's minutesof a discussion (held on 14.12.94) between the 8th respondent (andother officials) and the Telemakers' Guild, recorded an agreement thatthe three-member review board would include one member fromamong four nominees of the Guild; a letter dated 9.3.95 from the 13threspondent to the petitioner, conveying the decision of the reviewboard regarding another telefilm, stated that it was an independentboard; and the minutes of further discussions between the 8threspondent (and other officials) and the Telemakers' Guild, on 30.8.95and 18.9.95 showed that the Guild had proposed that instead ofnominating representatives to the review board, it would nominate tothe appeal board. It is true that the Gulid's minutes recordedagreement, while the 1st respondent's minutes showed only aproposal, but nevertheless both sets of minutes proceed on the basisthat there had previously been agreement as to Guild representationon the review board. Both sets of minutes recorded the five namesproposed by the Guild. We pointed out that since the 2nd respondent'sletter P25 of 26.3.96 stated that persons nominated by the Guild hadbeen on all the boards, the truth appeared to be that the twodiscussions did result in an agreement.
The learned Deputy Solicitor-General, who was obviously labouringunder the disadvantage of incomplete instructions, made inconsistentsubmissions on that issue. First he tried to maintain that there wasno agreement about nomination, but only a proposal. Faced with theagreement of 14.12.94 and the letter P25 of 26.3.96, he then arguedthat the statements and agreements by the Chairman and the Director-General did not reflect actual Corporation policy, and stated that infact no Guild nominees were appointed to any of the boards. Laterhe argued that the agreement was to nominate to a pool from whichthe 1st respondent would appoint the panels, there being no assurancethat a Guild nominee would be included in every panel. We pointedout that the "DDG (GP)'s memorandum" and the Board minute of
(both referred to in 2R2) would have resolved the issue beyonddoubt. Finally, he submitted that even if a Guild nominee had beenincluded in a panel of three, that would have made no difference as
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the other two would have constituted a majority. That was tantamountto an admission that if there was no unanimity, those two wouldinvariably agree with each other, and disagree with the Guild nominee!Comment as to a procedure whose result can be thus predicted issuperfluous.
During the morning session on 26.5.98, the learned DeputySolicitor-General requested a further opportunity to trace the missingdocuments, and to produce them during the afternoon session. Atabout 2.30 pm copies of two memoranda and several Board minuteswere tendered. Those documents reveal the falsity of the respondents'position, but they also explain why they were suppressed.
The "DDG (GP)'s memorandum" was dated 17.8.95. It stated:
"… we suggest that a supreme appeal board should be namedconsisting of one Corporation Board Member, one member fromTV Producers' Association, and one member from SLRC PreviewPanel …"
When the DDG (GP) received 2R2 of 4.9.95, the endorsementwhich I have quoted earlier was made. The further memorandum dated
which he then submitted was produced. That sought approvalto appoint a "supreme appeal board", and listed the same five nameswhich the Telemakers' Guild had suggested on 30.8.95.
The Board minutes of 17.11.95 were produced. The 5th, 7th, 8th,9th, 10th and 12th respondents, and one other director who is nota respondent, were present. The following decision was taken inrespect of the "supreme appeal board" :
"… the list of names forwarded by the Tele-makers' Guild wastabled. Members nominated Prof. J. B. Dissanayake too as a panelmember, and it was decided that for each teledrama that isforwarded to the supreme appeal board for a decision, suchappeal board will comprise two members from the following paneland one Member of the Corporation …"
SCBennett Rathnayake v.
The Sri Lanka Rupavahini Corporation and Others (Fernando, J.)105
The five Guild nominees and Prof. J. B. Dissanayake wereapproved.
According to the Board minutes of 27.2.96, the Board purportedto add four more names, without reference to the Guild; Mr. EMGEdirisinghe was one. Those minutes were confirmed on 8.3.96. Therespondents did not produce any Board decision constituting thetwo-member panel for the “supreme appeal board" which dealt with"Makara Vijithaya"; however, on 9.3.96 Mr. EMG Edirisingheparticipated as a member of that board. When asked who nominatedthat board, the learned Deputy Solicitor-General, after inquiring fromCorporation officers present in Court, stated that it was a DeputyDirector-General. If the petitioner's appeal of 31.1.96 had been takenup promptly, the board would have included two from the panelapproved on 17.11.95. It is unfortunate, to put it mildly, that delayingconsideration of the appeal until after 8.3.96, resulted in the exclusionof all six nominees approved on 17.11.95, and in the inclusion ofanother whose appointment was confirmed just the day before. Theusurpation by an official of the Board's power of appointing the"supreme appeal board", and the resulting inclusion of someone puton the panel long after the appeal was filed, undermines the fairnessand impartiality of the process.
The Board minutes of 18.8.95, 1.9.95 and 15.9.95 were alsoproduced. These showed that the discussions with the Guild wereconsidered by the Board with a view to implementation, and thatDDG (GP) had submitted a memorandum containing the namesproposed for the preview board – although the motion dated 26.3.98stated that Board minutes pertaining to those subjects werenon-existent. They also showed that prescribing criteria for selectionwas a matter under consideration by the Board, and have presumablybeen finalised by now.
No Board minute was produced to establish that the 8threspondent's report dated 12.10.96 was ever considered by the Board.
It has been necessary to refer to the facts in some detail as the1st respondent and its directors and officials have throughout failed
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to disclose the facts fully and accurately, in relation to the review ofthe petitioner's telefilm, the Ministerial proposals, the respondents'pleadings, and the order of this Court for the production of documents;and they persisted in misrepresenting facts and suppressing docu-ments until it became clear that the Court would draw the appropriatepresumptions. Their conduct resulted in the length and expense ofthese proceedings being increased. The question also arises whetherthe respontents* registered Attorney-at-law exercised due rare anddiligence – as, for instance, by calling for and checking at least theMinute books – before making the sweeping statement, likely tomislead the Court, that many of the documents called for had neverbeen in existence.
I hold that there had been an agreement with the Telemakers' Guild;that had been considered and given effect to by the Board; that interms of that agreement and the procedure established by the Boardthe "supreme appeal board” had to consist of three persons nominatedby the Board; that two had to be from the panel approved on 17.11.95;that even assuming the expansion of the panel on 27.2.96 was proper,the spirit of the agreement with the Guild was that at least one hadto be from among its nominees; that the Board could not secretlyresile from that agreement; and that in any event the two-memberpanel was not duly constituted as it was nominated by someone otherthan the Board. The respondents have also failed to show that themembers of the preview board and the appeal board had been dulyappointed. All the procedural safeguards have thus been disregarded.Further, despite having participated in the decision of 17.11.95, the8th respondent (Chairman) and the 5th, 7th, 9th and 12th respondentsnot only acquiesced in the violation of their own established procedure,but they purported to review the telefilm themselves, thereby usurpingthe functions of the independent "supreme appeal board". And inaddition to those violations of their own rules, there are unexplainedcircumstances, which taint the Board's proceedings: the 5th respondentchanged his mind, thereby falling in line with his colleagues, withoutexplanation, and the Board's decision as conveyed to the petitionerby the Secretary was different to that communicated in the 8threspondent's report dated 12.10.96.
SCBennett Rathnayake v.
The Sri Lanka Rupavahini Corporation and Others (Fernando, J.)107
The question in this case is whether Article 12 (1) entitles thepetitioner to the protection of a fair and objective procedure forselection of telefilms for telecast, according to clear and specificguidelines and criteria prescribed in advance. Looked at purely froma financial angle, persons who spend money on producing films riskserious loss if their films are not telecast. Apart from that, the refusalto telecast films which – considered from a cultural or artistic pointof view – deserve to be telecast, prejudices both producers andviewers. Uncertainty as to procedure and criteria tends to result ina denial of the equal protection of the law.
The statutory powers which the 1st respondent has are, like moststatutory powers, not absolute, unfettered, or unreviewable; they areheld in trust for the benefit of the public; and they cannot be exercisedarbitrarily, or capriciously, or unreasonably. The powers which a statutorybody, such as the 1st respondent, has in respect of television andbroadcasting are much greater than in the case of other media, suchas the print media – because the frequencies available for televisionand broadcasting are so limited that only a handful of persons canbe allowed the privilege of operating on them, and those who havethat privilege are subject to a correspondingly greater obligation tobe sensitive to the rights and interests of the public. The airwavesare public property and the State is under an obligation to ensurethat they are used for the benefit of the public (cf. Red Lion Broad-casting Co. v. FCC?1) * and Secretary, Ministry of Information v. CricketAssociation of Bengal both of which I cited in Fernando v. SLBC3).In the Cricket Association of Bengal case, the Supreme Court of Indiadirected the Central Government to take "immediate steps to establishan independent autonomous public authority representative of allsections and interests in society to control and regulate the use ofthe airwaves".
I hold that the powers conferred on the 1st respondent (and itsdirectors and officials) in respect of telecasting on the airwaves were
held in trust for the public, and had to be exercised for the benefit
of the public, for which purpose it was obliged to establish andimplement a fair and objective procedure to determine whether atelefilm submitted to it was suitable for screening, and if so thetime of screening. That obligation has been seriously violated.
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therefore, grant the petitioner a declaration that his fundamentalright under Article 12 (1) has been infringed by the 1st, 2nd, 5th,7th, 8th, 9th. and 12th respondents; I quash the decision of the Boardof the 1st respondent in respect of “Makara Vijithaya0; and I directthe 1st respondent to submit that telefilm for final review – afterspecifying the applicable criteria – by the "supreme appeal board"constituted in accordance with the Board decision of 18.8.95, asamended by the Board decision of 17.11.95 (which were the decisionsin force at the time of the petitioner's appeal), within one month fromtoday, without any further fee being levied from the petitioner.
The petitioner has alleged the infringement of Article 14 (1) (a)as well. The order we make today makes it unnecessary to considerthat plea. In any event, the petitioner could have sought to have histelefilm telecast on one of the other television channels, and the refusalby the 1st respondent of prime time for one telefilm does not meanthat future telefilms will be similarly treated.
I have given anxious consideration to the question of other relief,
Clearly, the petitioner has suffered considerable financialloss – having borrowed Rs. 2,145,000 from the People's Bank on whichinterest continues to accrue at-24% p.a., according to the Bank's letterdated 14.10.96. That loss was aggravated by the delay of therespondents to deal with his appeals, and to consider the Minister'sproposals, expeditiously; as well as their unsatisfactory pleadings andevasive response to the order of this Court for production ofdocuments. Thus a final decision which he should have got in February,1996, he will not get until about 28 months later, in July, 1998. Atthe same time, the petitioner took over six months, time to amendhis pleadings. I think it fair to hold the respondents responsible for20 months, delay, (b) At the same time, the petitioner could havemitigated his loss if the telefilm had been telecast outside prime time- but the respondents denied him that opportunity by not replying tohis query as to the available time-belt, (c) Further, the conduct ofthe respondents, as noted above, shows that the infringement wasnot unintentional. Despite ample time for consideration, they acteddeliberately in cavalier disregard of their own rules. That calls forenhancement of compensation, (d) On the other hand, we cannot
SCBennett Rathnayake v.
The Sri Lanka Rupavahini Corporation and Others (Fernando, J.)109
assume that the telefilm, properly reviewed, would definitely, or evenprobably, have been approved for prime time telecast: that is nothingmore than a mere possibility. However, the petitioner's right to theequal protection of the law, by means of a fair procedure, has beeninfringed, (e) Learned counsel for the petitioner stated that the telefilmis still in good condition available for telecast, and has not becomeout of date; I, therefore, do not think that the cost of producing thetelefilm should be taken into account, although accruing interest must.
Taking all that into consideration, I award the petitioner equitablecompensation in a 'sum of Rs. 1,000,000, payable by the 1strespondent on or before 30.6.98, with further interest calculated atthe rate of 24% p.a. in the event of delay.
As for costs, it was the conduct of the 2nd, 5th, 7th, 8th, 9th and12th respondents which resulted in the infringement, and contributedto increasing the expense and the delay in this case. The 2nd andthe 8th respondents were more to blame than the others. I, therefore,order the 2nd and 8th respondents personally to pay a sum ofRs. 7,500 each, and the 5th, 7th, 9th and 12th respondents personallyto pay a sum of Rs. 2,500 each, as costs to the petitioner.The petitioner will thus receive in all a sum of Rs. 25,000 as costs. I
I further direct the 1st respondent to give publicity, in all threelanguages on its own television channel, to the procedure and criteriafor the selection of telefilms for telecast during prime time and outside,distinguishing as necessary between different types of telefilms: it shalltelecast full particulars at a convenient time between 7.00 pm and
pm at least once every month from July to December, 1998,and thereafter whenever the procedure or criteria are amended.
WADUGODAPITIYA, J. – I agree.
GUNAWARDANA, J. – I agree.
Relief granted.