With frustrated resignation, Sri Lankans are used to how government departments (the Police in particular) and public property are misused and abused by the party in power during elections for partisan advantage. For sheer insouciance though, the emergent new kid on the block during this presidential election, the Telecommunications Regulatory Commission of Sri Lanka (TRC), surpasses even the chutzpah of the President in kicking aside the Seventeenth Amendment.
On the first of January, many of us would have received an unsolicited SMS from one Mahinda Rajapakse, wishing us not only a happy and prosperous new year, but also reminding us of the handsome gift he had given us in advance: a free and independent country (no less): see Groundviews story on 1st January. One’s reception to this is coloured no doubt by one’s political persuasion, but I am sure many of us were struck with the implications of this SMS from the perspective of campaign finance and the integrity of public institutions in the conduct of free and fair elections, especially since none of the other 21 candidates seemed able to foot the substantial bill for sending out such an SMS to over 12 million subscribers of the five mobile phone operators.
Such fears were swiftly confirmed when a Daily Mirror Online report of the same day reported that, mobile operator told Daily Mirror online the SMS was sent to all of their subscribers following a request from the President.”
The next day, the Weekend Financial Times reported that in an unprecedented move and perhaps controversial in the midst of a crucial election, the Telecommunication Regulatory Commission (TRC) yesterday instructed all five operators to transmit an SMS containing President’s New Year wish to some 12 million mobile subscribers (sic).” The FT report also said, â€œWhen Daily FT sought a clarification from the biggest mobile operator Dialog Telekom, the company in a brief statement said the transmission of a New Year Message from the President of Sri Lanka to all Dialog subscribers was carried out by the company based on instructions received from the Telecommunications Regulatory Commission of Sri Lanka. In line with prior practice with respect to the transmission of messages as instructed by the TRCSL, the company will not be levying any charge from the TRCSL from the transmission of this message.”
Thus Mr. Mahinda Rajapakse, a candidate in the forthcoming presidential election, has used his power as the incumbent President Mahinda Rajapakse, to get the TRC (a statutory institution gazetted under him, and chaired by his own secretary Lalith Weeratunga, there being no other Cabinet Minister in charge of the subject of telecommunications) to not only give a patently illegal order to at least one mobile phone operator to send out an SMS on behalf of his presidential re-election bid, but also have the temerity to expect that this be done free of charge. Thus the mobile phone operators have given an enforced campaign contribution to Mahinda Rajapakse, according to the Groundviews estimate, of about USD 110,000. Forget good governance and legality, these are Cosa Nostra tactics.
So why should we be angry about this? Firstly, because the TRC is a public institution established and governed by law, run with our tax revenue, for the purposes of regulating and arbitrating disputes in the telecommunications field in the public interest. There is nothing in the law governing the TRC that empowers it to issue instructions to companies it is supposed to regulate to promote an election candidate (see Sections 4 and 5 of the Sri Lanka Telecommunications Act No. 25 of 1991 as amended by Sections 7 and 8 of the Sri Lanka Telecommunications (Amendment) Act No. 27 of 1996). Therefore the TRC’s behaviour is not only against its own parent legislation and other elections laws, but also repugnant to every principle of good government and democracy under the rule of law.
Secondly, there is no such thing as a free lunch, and the fact that this SMS did not cost Mahinda Rajapakse a cent means that somebody else has paid for it. Assuming other operators were also placed in Dialog’s situation, then private companies have been prevailed upon to cough up a campaign contribution. Aside from how this kind of political interference in the private sector is what denudes capitalism and the free market under the rule of law functioning as the engine of growth and development, I wonder what the shareholders of these companies have to say about this? In particular, Mobitel is a wholly owned subsidiary of Sri Lanka Telecom, in which a 49.5% stake is owned by the government, in other words, the people of Sri Lanka. This means that we the people, in addition to the tax money on which the TRC runs, have made a second contribution to Mahinda Rajapakse’s SMS.
Thirdly, something must be said of the mobile operators themselves, in particular Dialog (in terms of their statement quoted by the FT). Their use of subscriber information to send unsolicited texts is potentially criminal and in any event utterly discourteous. This is compounded by the fact that some customers requesting to unsubscribe from such messages in the future have been told they cannot do so. So the company’s loyalty is not to its customers and shareholders but to a TRC acting not only with blatant partisanship, but also illegally. Whether acting out of fear, servility, or expectation of future favour, the word for this is ‘crony capitalism’. I wonder how they might respond, if one or all of the other 21 candidates request them to send out an SMS with a campaign message free of charge?
This is not the last of the TRC’s misdemeanours. Yesterday, MTV filed a writ application against the TRC in the Court of Appeal. According to the petitioner, its Tamil language station Shakthi TV had been broadcasting in the Jaffna peninsular since 2003 to a viewer base of 200,000. On 1st January this year, its staff at the Jaffna station realised that the Shakthi TV signal on UHF channel 25 was being jammed by another signal being transmitted on the same frequency. Upon inquiry, MTV learnt that the ITN-owned Vasantham channel was broadcasting its test transmission on same frequency as had been allocated by the TRC to MTV / Shakthi.
The MTV petition alleged that on 5th January, the TRC purportedly acting in violation of and contrary to, the established principles of natural justice and the rule of law, purported to direct the petitioner company to shut down the said transmission with immediate effect.” MTV maintains that â€œâ€¦any interference and interruption to the transmission of Shakthi TV on Channel 25 and any assignment of the said channel to another without the petitioner company being given a due and proper hearing and an opportunity to show cause is grossly illegal, arbitrary, ultra vires and is contrary to the established principles of natural justice and the rule of law.” Quite right. In non-legalese, the pattern we are seeing is that the TRC has abandoned its statutory function in the service of the re-election campaign of candidate Mahinda Rajapakse.
However much Mr. Rajapake and his humongous extended family believe that anything called an institution in this country from every branch of government to the media, the arts, sports, and civil society, to S. Thomas’ College is theirs for the taking, invading, and populating, I am sorry to say it is not so; and if we value our dignity and democratic citizenship, we should tell them that very clearly. We own this place, not them.