Quo warranto, TRC?

Written by Rohan Samarajiva on February 14, 2010

Following the appointment of Director of Information (or Propaganda) as part-time Director General of Telecom, I have been getting a lot of calls asking about Internet censorship, prohibition of Face Book, and licensing of news websites.

While I do believe that (a) the Director of Information is on the face unqualified to serve as DGT, and that (b) the Department of Information has no role to play in a modern democratic society, I do not think that any of these feared things will happen.

Whatever the DGT does, he has to do under the Law, the Sri Lanka Telecom Act, 25 of 1991, as amended. According to the Act, the DGT does not have legal authority; all authority lies with the Commission, a five-person body chaired by the Secretary of the relevant Ministry, at the present time Mr Lalith Weeratunge, Secretary to the President. The DGT is a member ex officio and until now, the only full-time member. The other members are part-time, one qualified in law, another in finance and so on. The DGT is the CEO of the Regulatory Commission and must act under the direction of the five-member commission.

The Commission has to act as specified in the Act and other relevant legislation (and of course the Constitution). If it acts outside these powers or if it exercises these powers without adhering to natural justice, it can be checked under the writ jurisdiction of the Court of Appeals, as set out in Article 140 of the Constitution. Fundamental rights cases may also be brought against it before the Supreme Court.

Let us take the case of licensing news websites. Can the TRC do this?

The Act specifies several kinds of licenses and a permit. It is an offence to do the acts covered by these licenses and permit, without being issued these licenses and permits. Action may be taken when the terms and conditions of the said licenses and permits are violated.

The first question then is whether the operation of news websites requires a license under Act 25 of 1991, as amended. We can without much difficulty exclude the licenses for cabling, frequencies and frequency emitting apparatus etc. The core issue is whether a news website requires a license under s. 17.

Section 17 states that:
“(1) Subject to the provision of section 20, no person shall operate a telecommunication system in Sri Lanka except under the authority of a licence granted by the Minister in accordance with subsection (2).
(2) The Minister may grant the licence referred to in subsection (1) on the recommendation of the Authority, provided he shall have the power to reject such recommendations for reasons assigned and grant a licence in his own discretion.”

Section 20 is about certain kinds of activities in contiguous spaces and/or within organizations and is not of relevance to the present discussion. The key phrase is “telecommunication system in Sri Lanka.” Anything that falls within the definition of a “telecommunication system in Sri Lanka,” and does not fall within the exclusion specified in s. 20, requires a license.

A “telecommunication system” is defined in Section 73 as “a system for the conveyance by the agency of electric, magnetic, electro-magnetic, optic, electro-chemical or electromechanical energy, of
(a) speech, music and other sounds ;
(b) visual Images;
(c) information for human comprehension that is intended for presentation in a two dimensional form, consisting of symbols, phrases or sentences in natural or artificial languages, pictures, diagrams and tables ; or
(d) signals serving for the actuation or control of machinery or apparatus.”

One may access a website using a telecommunication system licensed under the Sri Lanka Telecom Act, but that does not mean that the website is a telecommunication system that requires a license. In short, the TRC does have the authority to license Internet Service Providers, through whose facilities we gain access to websites; but it does not have authority over the websites. It is possible for the TRC to include specific license conditions in the license issued to ISPs that may include restrictions about filtering and such, but as far as I know such conditions were not included in the ISP licenses that were issued since the 1990s and even if the TRC tries to include them it may find itself violating the Constitution.

Living in war conditions caused the citizens of this country to yield fundamental rights in the name of assisting the fight against terrorism. We must get back to asking “under what authority?” whenever someone in government seeks to prohibit something or get us to do something. There does not seem to be any legal authority for the TRC to do any of the actions they are allegedly planning to take.

Quo warranto, TRC?