Serious concerns with regard to the unsolicited New Year?s Day text message sent on behalf of the President and other consequential issues relating to the conduct of a free and fair presidential ele

CPA in its letter noted that these concerns were brought to Mr.
Dissanayake’s attention at first instance, but that the contents of
letter would be made public within a reasonable time period, together
with Mr. Dissanayake’s responses and a description of any action of he
had taken with regard to the issues raised. To date, CPA has not
received any response from Mr. Dissanayake and is not aware of any
initiative by him to address the significant concerns enumerated in our
letter.

The full text of the letter follows, and is also available as a PDF here.

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6^th January 2010

Mr. Dayananda Dissanayake
Commissioner of Elections
Elections Secretariat
Sarana Mawatha,
Rajagiriya

Dear Mr. Dissanayake,

Serious concerns with regard to
the unsolicited New Year’s Day text message sent on behalf of the
President and other consequential issues relating to the conduct of a
free and fair presidential election

You will be aware of media reports concerning the unsolicited text
message sent to subscribers of all five mobile phone service operators
on 1^st January 2010 purporting to be a message of good
wishes from President Mahinda Rajapakse. The said text message read as
follows: “Kiwu paridi obata NIDAHAS, NIVAHAL RATAK laba dunnemi.
Idiri anagathaya sarwapprakarayenma Wasanawantha Wewa! SUBA NAWA
WASARAK WEWA! Mahinda Rajapaksa” (Our translation: “As I
promised, I gave you a free and independent country. May your future be
successful in all ways. Happy New Year! Mahinda Rajapaksa”): see Daily Mirror Online report of 1^st January 2010 entitled ‘President sends SMS New Year greeting to mobile users’ (available at: http://www.dailymirror.lk/DM_BLOG/Sections/frmNewsDetailView.aspx?ARTID=72366) in which, inter alia, it is claimed that “One mobile operator told Daily Mirror online the SMS was sent to all of their subscribers following a request from the President.” (Emphasis added)

Subsequently, on 2^nd January 2010, the Weekend Financial Times also carried a front page news story entitled ‘Telecom regulator SMS Mahinda to mobiles (sic)’ in which, inter alia,
it was stated 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 all 12 million mobile
subscribers (sic).” The same report also stated that:

“It couldn’t be confirmed whether TRC’s move firstly of instructing
mobile operators to transmit President’s message, secondly without
paying the operators, and thirdly the content and spirit of the message
tantamount to violation of any Presidential elections rules and
regulations concerning public institutions and their employees (sic).”

“…TRC functioning as the intermediary with instructions as well as
expecting mobile operators not to charge TRC for such transmission can
be bordering on a question of good governance, transparency and
accountability apart from circumventing prohibitions under Election
Laws (sic).”

“When 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.” (Emphasis added)

In the context of the forthcoming presidential election in which the
President is a candidate for reelection, you will note that this
message, of which at least the first sentence clearly contains a
partisan political statement, raises a number of grave issues for the
conduct of a free and fair election. In particular, we would draw your
attention to the following issues:

If the media reports cited above are correct to the effect that at
least one operator, Dialog Telekom, has officially confirmed that they
transmitted the President’s message (free of charge) on the
instructions of the TRC, then the TRC has acted in a politically
partisan manner, in clear in violation of its statutory objects and ultra vires its statutory authority, contrary to the public and national interest
it is statutorily enjoined to uphold, and acted arbitrarily and
illegally for an extraneous purpose other than one provided for by law.
In this regard, we would draw your attention to 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, wherein there is no legal power, authority or discretion
conferred on the TRC to give any instructions to the effect as are
presently at issue.

In the interest of a free and fair election, which necessarily
requires that a candidate at an election who is an incumbent holder of
public office, is not placed at an unfair advantage by virtue of such
incumbency, we request that you seek an official clarification from the
TRC and any other relevant party (including the Office of the President
of the Republic, Mr. Mahinda Rajapakse’s campaign, and the five mobile
phone operators) as to the matters set out below, and in the interests
of transparency and good governance inherent to the conduct of a free
and fair election and public confidence in both the electoral process
and your constitutional office, to make such findings public as soon as
possible.

1. Did the TRC in fact issue the alleged instruction to all or some of
   the five mobile phone operators in Sri Lanka that they transmit the
   said text message?
2. If so, by what statutory authority did the TRC issue such an instruction?
3. Furthermore, did the TRC receive any general or specific direction
   from any other authority of the Government of Sri Lanka, including the
   Minister in charge of the subject of Telecommunication (in terms of
   Section 66 (1) of the Sri Lanka Telecommunications Act No. 25 of 1991)
   and/or the Office of the President of the Republic, ordering it to
   issue the alleged instruction to all or some the five mobile phone
   operators?
4. If the TRC denies that the alleged instruction has been issued, and
   having regard to the issues relating to costs of transmission of the
   said text message mentioned below, what steps does it intend to take in
   terms the offences and penalties set out in all or any of Sections 45,
   46, 48, 52 (with specific regard to ‘usage information’ defined
   thereunder), 56, 62, 63 or 64 of the Sri Lanka Telecommunications Act
   No. 25 of 1991?
5. In the light of the statement issued by Dialog Telekom quoted by the Weekend Financial Times above,
   is it the general practice of Sri Lanka’s mobile phone operators to
   automatically accede to any instruction issued by the TRC without
   independently ascertaining the vires of such instructions, even where, as in the present case, the legality of the instruction is patently questionable?
6. Was the said text message transmitted to subscribers without charge
   to the TRC, the Government of Sri Lanka, or to the campaign funds of
   Mr. Mahinda Rajapakse, by all or some of the five mobile phone
   operators?
7. If so, what were the costs incurred by the respective mobile phone
   operators, and in particular by Mobitel (Pvt) Ltd, which is a wholly
   owned subsidiary of Sri Lanka Telecom, a public company in which a
   49.5% stake is owned by the Government (i.e., the People) of Sri Lanka?
8. If the costs of the transmission were borne by the mobile phone
   operators, under which existing law, policy or practice did they feel
   obliged to do so, given that the content of the text message they were
   instructed to transmit was clearly meant to further the election
   campaign of one out of twenty two candidates at the forthcoming
   presidential election, and not for any legitimate public purpose
   recognised by the provisions of 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?
9. Why did neither the TRC nor the mobile phone operators consider it
   necessary or relevant, if only as a matter of common courtesy and sound
   customer relations, to obtain the prior permission of subscribers
   before transmitting unsolicited text messages of a politically partisan
   nature (especially where a subscriber on overseas roaming would have
   had to pay – subject to variable costs depending on country and roaming
   service provider – for the incoming unsolicited text message)?
10. Has the option of unsubscribing to future such text messages been
    offered to subscribers either by the mobile phone operators or by the
    TRC in conformity with its statutory duty in terms of Section 5 (d) of
    the Sri Lanka Telecommunications Act No. 25 of 1991 which requires it
    ‘to pay due regard to the public interest and the convenience and
    wishes of the general public as regards telecommunication services
    provided by an operator’?

Given that in terms of Article 103 (2) of the Constitution read with
Section 27 (2) of the Seventeenth Amendment to the Constitution, you
are constitutionally obliged to conduct free and fair elections, we
earnestly urge you to direct your urgent and serious attention to the
issues raised herein, and take all such remedial measures as are
necessary, including but not limited to the ones suggested above, to
ensure that this kind of abuse of public authority does not recur
during the course of the current presidential campaign, or in any
future election or referendum campaign.

While we believe that the matters set out above are of great public
importance, we consider it only proper that we should bring them to
your attention at first instance. However, we would like to make the
contents of the instant communication public within a reasonable time
period, together with your responses and a description of any action of
you have taken with regard to the issues raised herein.

Anticipating your prompt attention to the matters set out above,

Thank you.

Yours sincerely

DR. PAIKIASOTHY SARAVANAMUTTU
EXECUTIVE DIRECTOR