Comparative Issues in Media Policy and Law in South Asia

 

David Page and William Crawley

The Media Reform Lanka initiative emerged from an earlier scoping study into media policy and law in four South Asian Countries - India, Pakistan, Bangladesh and Sri Lanka. This preliminary research focused on the development of media policy in each of the four countries concerned and to a great extent reflected wider national, political, legal and constitutional developments, of which the media is only one part. However, it also became clear that there are some striking common issues, which are a product of the shared history of the countries of the South Asia n region, common geopolitical and cultural factors, the global impact of technological development and the regulatory challenges that it presents, as well as the shared international legal environment which creates and promotes new concepts of human and civil rights, and reinforces links between the individuals and civil society organisations in each country which advocate those rights.

The shared history is reflected in the colonial provenance of some of the most basic and far reaching of the laws and regulations affecting the media in South Asia. Among these are the Official Secrets Acts originally drawn up by colonial governments with the aim of protecting and strengthening their authority. In some countries these laws have been modified since independence. In others they have continued essentially unchanged. The extent to which the various South Asian Official Secrets Acts have been changed since independence provides one basis on which to compare how much new thinking went into building the legal and moral foundations of the independent states. Some of the continuity, however, reflects the persistence of systems and procedures which have been retained by most states, whatever their ideological basis or political and cultural origins.

The monopolistic character of broadcasting legislation was common to all the South Asian states until it was overturned by new communication technologies in the 1990s. Laws affecting the print media, which also derived from colonial legislation, provided for the ability to influence and control or manipulate the print media, but did not envisage state control of the press. Post-colonial governments in South Asia went further than their colonial predecessors: for example in Pakistan under military rule, in India under the emergency in the 1970s, and in Sri Lanka, where the Lake House group was nationalised. The techniques of press control may have been learned from the former colonial regimes but were by no means restricted by colonial precedents in their application. In India the foundational premises of free speech and the kind of principles that have been established emerged in the context of the print media. The freedom of the broadcast media may depend crucially on the degree to which the print media can exercise those freedoms.

The constitutional foundations of freedom of speech and expression in contemporary South Asia depend fundamentally on the extent of independence of the judiciary in the South Asian states and their ability to interpret and actively extend these rights. Here the experience of all four countries has been different. But the ability or otherwise of the judiciary to enforce constitutional rights has been a two-edged weapon for the South Asian media. In some contexts, it has been empowering and a strong protection against the arbitrary encroachment of government on civil and political rights. In others, it has reinforced its own authority and that of governments in ways which have not been friendly to the freedom of the media. The ways in which the Contempt of Court laws – another legacy from colonial times and UK practice – have been applied and developed by the judiciaries of India, Pakistan and Sri Lanka, and the implications for the freedom of the media, is one area of innovation and comparability, in which the influence of precedents within the region is more than a matter of academic interest. The Indian Supreme Court judgment in the Cricket Association Board case of 1995, by declaring the airwaves to be public property made a powerful statement for India which reverberated across the subcontinent. It also inaugurated a new era of broadcasting litigation in India and more widely in South Asia, because until the 1990s broadcasting was a state monopoly. In Bangladesh the courts were moved by government to challenge the legitimacy of Ekushi TV as a licensed private terrestrial TV station - the first in that country – and it was forced to cease broadcasting as a result. Increasingly licensing decisions and regulations, and the framework of electronic media regulation, are liable to be subject to legal challenge.

In comparing the impact of constitutional rights on media law in South Asia the relative strength of the Indian courts is apparent in their ability to challenge government decisions both in normal circumstances and in an emergency or when extraordinary powers are in force. In Pakistan, where for more than thirty years since independence the country has been under military rule, constitutional rights are more vulnerable to emergency provisions. In Bangladesh, the constitution provides an even weaker foundation, and the constitutional basis of the current regime is very unclear. Regional comparisons in this field are a valuable area of study and research.

But for India, the influence of the judiciary in enabling media freedoms is offset by significant judgments which limit these freedoms. Rulings on Contempt issues have had the effect of suppressing a critique of judicial pronouncements. Judicial activism may be regarded as the defining aspect of a new construction of media restrictions rather than freedoms. This is a promising comparative perspective across the countries of South Asia. In Pakistan it is recognised that members of the public may in good faith criticize judicial acts. The courts have held that this right must not be exercised in pursuance of improper motive or malice or in an attempt to impair or impede the course of administration of justice. However, in the November 2007 emergency provisions, it was the government itself rather than the media which mounted a radical attack on the judiciary. In Bangladesh, the courts have taken conservative positions and Contempt of Court legislation has increasingly come to be used against the media. In Sri Lanka, the sub judice rule has seriously impeded discussion on matter of public interest.

Right to information

Among the changes in the international legal environment which have been affecting media laws in South Asia are attitudes to Freedom of Information. Right to Information legislation has had its most tangible impact in India, where civil society pressure groups have made good use of it to restrict corruption and secure citizens’ access to government funds for development. In Pakistan, Freedom of Information was initially regarded as a subsidiary of the right to freedom of expression expressed in Article 19 of the Constitution. Pressure from international organisations led to the promulgation of the Freedom of Information Ordinance of 2002, though the positive features of this law are marred by a broad list of exceptions.

In Bangladesh, a working paper on freedom of information was prepared for the military-led caretaker government by the Law Commission, and a law was enacted in March 2009 before the country returned to democracy. In Sri Lanka, a draft law was formulated by a committee of senior government officials with the input of civil society and the media during 2003. Though the draft was approved by Cabinet, the Government lacked the political will to enact it.

Protection for whistle blowers who expose confidential information in the public interest, which is very incompletely protected even in advanced democracies, is another issue on which international practice is increasing awareness in South Asia, where the concept enjoys even less recognition and protection.

Internet censorship

The increasing use of the internet and of mobile phone technology has in some respects greatly increased the range and participation in journalistic activity by ordinary citizens who would not claim to be journalists. It has also presented a formidable challenge to systems of censorship. Internationally – as the Chinese government has demonstrated - it has not proved as difficult to censor internet traffic as was once thought. An international consensus on the evils of child pornography, and international political cooperation against terrorism, appear to have had some impact. But in most South Asian countries, citizens can still access information which the government would prefer to censor. South Asian experience in this area is part of a global picture

Media licensing laws in South Asia are another significant area for comparative study, and with the emergence of new technologies and means of distribution, this is a growing area of activity and innovation. One particularly interesting area is that of Community Radio, where the experience of Nepal, and more recently India and Bangladesh, is very different from Pakistan and Sri Lanka, which continue to restrict community ownership of the medium.

Questions of Public Interest

The concept of Public Interest Broadcasting is another issue which is commonly recognised as being important and valid in South Asia, even when the interpretations of its content and meaning may differ. It has been the commonest defence of the validity of the state broadcasters, which except in Sri Lanka still dominate or monopolise the terrestrial networks. In India, for example Doordarshan has long claimed the uniqueness of its remit to broadcast in the national interest, to audiences which if not universal are more extensive and socially wider reaching than the niche audiences initially commanded by satellite television. The historic control and manipulation of the state media by governments for their own propaganda purposes has always been the biggest flaw in that argument. The justification of the claim on the grounds of superior reach became harder to prove as the reach of satellite television expanded and state broadcasters in all countries adopted the same commercial practices as their competitors. However the commercial TV channels have done relatively little to reinforce an equal claim to national legitimacy by moving into the area of public interest broadcasting themselves, arguably a missed opportunity.

In the present situation, it is not possible to revert to the development communication model that prevailed in the early history of broadcasting. But the virtual disappearance of issues of development in mainstream media in almost all South Asian countries certainly alerts us to the need to think about issues of public interest broadcasting. This is a challenge for all the South Asian countries which requires further analysis and discussion both nationally and regionally.

Regulatory challenges

The different institutions for media regulation in the South Asian region and their responses to the problems posed by converging communications technologies form another useful point of comparison. New media regulatory institutions, or proposed institutions, have challenged the authority of the ministries which previously had the power to regulate broadcasting and communications. In India, this has put the Information and Broadcasting (I& B) Ministry and the Communications Ministry to some extent in competition with the quasi-independent Telecoms Regulatory Authority of India. The TRAI took over responsibility for broadcasting regulation in January 2004. The Communications Convergence Bill 2000 was aimed at creating a single regulatory authority (Communications Commission of India or CCI), with the power to regulate content in any media.

In Pakistan, the interim government under President Farouk Leghari set up a regulatory body for the electronic media shortly before the February1997 election. In 2002 under General Pervez Musharraf’s military government it was renamed the Pakistan Electronic Media Regulatory Authority (PEMRA) by an ordinance, and in addition to being the media licensing authority was given an extended brief, both to improve access to mass media at the local and community levels; and to ensure good governance by optimising the free flow of information. It was given an authority ostensibly independent of the Communications ministry, though it continued to be subject to official pressures. PEMRA’s action in the aftermath of the October 2005 earthquake, in issuing local radio licences in the disaster affected areas, was a major boost to the liberalisation of information in Pakistan, which enhanced PEMRA’s reputation. When PEMRA imposed drastic restrictions on broadcasters under the emergency of November 2007 it denied that it was acting as the government’s agent. The regulator argued – unpersuasively - that it believed in "self-regulation" by the electronic media, but that it was obliged to take action against contraventions by the media of its codes of conduct. PEMRA’s role at that time severely undermined its credibility with the industry and with the public.

In Bangladesh the legal framework for broadcasting is more uncertain than in Pakistan. As yet there is no equivalent law for licensing of the broadcast media or for the regulation of private radio and television. An initiative to set up an autonomous broadcasting commission made by a high-powered government-appointed committee in 1996 came to nothing. Bangladesh media continue to be subject to direct government control in the case of the state broadcasters and to more covert but no less direct pressure in the case of the private TV channels. This continuing uncertainty affects investment. Bangladesh has failed to attract any major foreign investment in the media sector. Compared to India or Pakistan, Bangladesh has some way to go in promoting freedom of the airwaves or confidence that it is moving in that direction.

In Sri Lanka there has been a long standing demand for structural reform of the state electronic media to protect them from political pressures. But as in Bangladesh, the recommendation of a government-appointed commission to make them autonomous was not implemented in the mid-1990s and looks further away despite the end of the civil war. Sri Lanka was ahead of other South Asian countries in creating diversity in its media regime both in FM radio, the provision of community radio under the state umbrella, and in the licensing of both terrestrial and satellite TV channels. But the institutional and legal structures for protecting a diverse media system in Sri Lanka leave much to be desired. Government continues to license stations directly itself and in times of insecurity to restrict media freedoms by recourse to emergency legislation. For these and other reasons, the judicial underpinning of media freedoms is also more in doubt than for some years, which is a cause of increasing concern to the journalistic community. Sri Lanka has shown with its telecommunications authority that an autonomous body can prove effective, but there seems today less likelihood than a decade ago that it will embark on the same path for the broadcasting industry.

Media Reform Lanka – the comparative perspective

Since Independence, Governments and judiciaries in each country have pursued different paths, in constitution-making, in the introduction of new legislation, the amendment of old laws and in the interpretations of their judiciaries. But in terms of the development and increasing diversification of the media, the effect of the satellite revolution and other technological developments, not to mention the regulatory challenges which all this poses, there are many shared problems which make a comparative perspective of value. This is true of efforts to reform Contempt of Court legislation, to introduce Right to Information legislation, or to establish regulatory systems for media and for telecommunications. Media Reform Lanka focuses mainly on Sri Lanka’s experience in this field. But in this section of the website it will also carry information on relevant comparisons and contrasts of practice between the different countries of South Asia. There are a number of such areas of constitutional and regulatory practice of common interest which merit further exploration within a regional framework. And we hope these will be of value not only to academics, lawyers and media practitioners but also to the government officials and political representatives who are engaged in the drafting and implementation of regulatory structures in South Asia.

* This note on comparative perspectives is based on a comparative scoping study on Media policy issues in South Asia carried out by the Media South Asia project in 2007/8, which is available at  http://www.mediasouthasia.org/research_report.asp