Sri Lanka ICT sector governance: Freedom House report exemplifies shoddy research or success of opacity?

Posted on October 28, 2015  /  0 Comments

There is no debate that the laws governing the telecom/ICT sector in Sri Lanka are among the most convoluted. So I have some sympathy for the people who write about it. But I assume they are paid for their work and they have a duty to check their facts.

The excerpt below is just one example of the erroneous analysis that is published in documents with international circulation, and then get quoted and reified as the truth about Sri Lanka:

Under a constitutional amendment forced through by the Rajapaksa regime and ratified in 2011—which also removed presidential term limits—the president was able to appoint the heads and members of all commissions, subverting legislative guarantees for the independence of the TRC and other statutory institutions.[36]

In April 2015, President Sirisena and his interim government were able to undo this stranglehold on democratic processes by introducing and ratifying the 19th Amendment to the Constitution, which empowered independent commissions in the country and restored term limits to the presidency.[37] The passage of the amendment in parliament was considered a significant step toward strengthening democracy in the country and overturning the authoritarian politics of the Rajapaksa regime.

During his presidency, Rajapaksa cemented control of the TRC by appointing his permanent secretary as its chairman. Following his election victory, President Sirisena followed his predecessor’s footsteps by appointing his permanent secretary, P. B. Abeykoon, as the head of the TRC.[38] In addition, President Sirisena appointed M. M. Zuhair—a former member of parliament and diplomat—as the Director-General of the TRC. While no blocks on news websites have taken place so far during President Sirisena’s administration, the political appointments to the TRC do give cause for concern.

The 18th Amendment had nothing to do with appointments to Commissions, other than those specifically mentioned in the 17th Amendment (e.g., Police Commission) or whose governing statutes specified the Constitutional Council as the appointing authority (e.g., Public Utilities Commission). The TRC does not fall within either category. Its governing statute is the Telecom Act, No. 25 of 1991 as amended by Act No 27 of 1996. They had not even thought about independence back then. The Secretary of the Ministry (just Secretary, the term Permanent Secretary has not been used in Sri Lanka since 1972) assigned the subject was to be chair of the Commission ex officio. The Director General, who was the only full-time member of the Commission and the CEO of the Commission, was to be appointed by the Minister and served at pleasure.

None of that changed, except for one little thing. In December 2005, shortly after becoming President, Mr Mahinda Rajapaksa chose to not assign the TRC to the Minister of Post and Telecommunications, as had been done previously. When an agency is not assigned to a Minister, it stays under the President, who then becomes the “Minister” referred to in the statute, and his Secretary becomes the Secretary referred to in the statute. Thus, the President’s Secretary, Mr Lalith Weeratunge, became the Chairman of the TRC and served in that capacity until his role as secretary to the President ended in 2015.

The new President chose not to assign the TRC to a Minister and thus his secretary, Mr Abeykoon, became Chair of the TRC ex officio. The President chose to appoint a person with no evident expertise in telecom regulation as the Director General who had supported him in his campaign, so it could be described by some as a patronage appointment. The said appointee has since been removed for funding a telefilm on national reconciliation from the Fund of the Commission and replaced by a person with administrative experience. The former DGT does not seem to think there was anything wrong with funding films, saying that the definition of telecom in the Act included films. It may be that others agree with this legal interpretation since he has been appointed to another senior government office.

It seems time to enact new legislation. And it’s time for Freedom House to add an Errata section to its report.

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