-Court of Appeal rules
-flays AG, NFMU for disregard of court

The Guyana Court of Appeal yesterday ruled that the government has an unlawful monopoly on the airwaves and it said that the National Frequency Management Unit (NFMU) is not doing its job with respect to considering radio licence applications.

In a landmark ruling in a case brought by VCT it charged that the NFMU has been procrastinating over the years.

The Court led by Chancellor (ag) Carl Singh and comprising Justices of Appeal B.S. Roy and Yonette Cummings-Edwards allowed an appeal filed by local television pioneer Anthony Vieira on behalf of Vieira Communications Limited (VCT) ruling that VCT’s fundamental right to freedom of expression and freedom to receive and communicate ideas and information was contravened. The Court referred to precedents in the region and other jurisdictions while citing several authorities on the issue. Ironically, Vieira has since sold his TV station to the Ramroop Group and has migrated.
VCT had applied for a radio licence since 1993 and the court said yesterday that both the government and the NFMU failed to acknowledge receipt of the application. VCT had asked that the court order NFMU to issue it with a radio licence forthwith but the Court said there are technicalities involved in making such a decision, noting that it lacks the expertise to make such an evaluation. It said the NFMU is the entity which is well placed to make such an evaluation, and it called on the unit to “do its job”. However, the court did direct the NFMU to consider and determine VCT’s application for a radio broadcast licence which was made since the early 1990s.

Anthony Vieira

Vieira was charged in 2001 with setting up an unauthorized radio station after the NFMU traced an audio transmission to his Versailles station, but the case was later dismissed for want of prosecution. Prior to the indictment Vieira was informed by Prime Minister Samuel Hinds that he and others interested in radio licences must wait on the outcome of deliberations of a Committee set up by President Bharrat Jagdeo and then Opposition Leader, H.D. Hoyte – the Committee on Radio Monopoly, Non-Partisan Boards and Broadcasting Legislation. The Court said yesterday that eight years have elapsed since the PM’s statements and there was no indication that any report by the Committee has been completed and submitted to the government.

The Court of Appeal found that the NFMU has commendable policy intentions with regard to radio licensing, but it ruled that such intentions cannot stymie, impede, interfere with or hinder any citizen in their enjoyment of rights guaranteed under Article 146:1 of the Constitution. In Vieira’s case, it ruled, there was a complete failure on the part of the trial judge, Justice Jainarayan Singh Jr. to pay heed to the allegations of the appellant that the state had violated his rights as set out in the above stated article of the Constitution. According to the court, the judge misguidedly focused on a previously dismissed charge against an officer of VCT and used it as a basis to dismiss VCT’s claim as constituting an abuse of the process. The trial judge had dismissed VCT’s claim in the High Court on the ground that he considered its allegation that the NFMU has violated its fundamental constitutional rights as an abuse of the [court] process.

The Court of Appeal ruled that Justice Jainarayan Singh was floundering in a sense of confusion at the time and yesterday’s judgment said this of his ruling, “…such a conclusion could not possibly by any stretch of the imagination be upheld by the [Appeal] Court”.

It continued, “The courts are the guardians of the fundamental rights of the people of this country and where there is an allegation of infringement of a person’s fundamental right which is the result of stately action it is the duty of the courts to subject such stately action to the most searching scrutiny. Furthermore, we seize upon the opportunity to emphasise the importance of ensuring that justice is dispensed – that is one of the hallmarks of a democratic society, acting as a guarantee that justice is administered in a way not arbitrary according to the rule of law”.

Notorious fact
The Court in its decision said it is a notorious fact that radio stations in Guyana which operate on the electromagnetic spectrum are government-controlled. It said the monopoly enjoyed by the government is not only unlawful but significantly restricts VCT and the people of Guyana in their ability to receive and to communicate ideas and information without interference, noting such restrictions are not reasonably justified in a democratic society.

The Court said VCT is entitled to compensation for damages for violations of its rights and it granted the company leave to approach the High Court for an assessment of such damages. It also ordered the government and the NFMU to pay VCT costs in the sum of $250,000 each. VCT had contended that the failure of the government and NFMU to acknowledge receipt of the application and/or to reply to the request must be regarded as a refusal to grant the licence, and that the failure to give a reason implied that they had no constitutionally justifiable ground for doing so.

But the NFMU denied this through its Chief Executive Officer, Valmikki Singh, who said in an affidavit that government and his agency had communicated a reason to VCT in a letter on September 4, 2001. However the court said the only letter sent to VCT and dated on that day was by the PM, noting that it made no reference to a refusal to grant a radio broadcast licence to VCT and or any reference to the station’s application for a licence.

According to the Appeal Court panel of judges, no one has an absolute right to a radio broadcast licence because of the constitutionally prescribed limitations which circumscribe the freedom of expression and the freedom to communicate ideas. However, it ruled that the application by VCT for a radio broadcast licence was attended by indifference and callous discourtesy in that it never received an acknowledgement of its application and a response from the NFMU, adding that more so, it was affected by inordinate delay on the part of the NFMU in giving consideration to the request. The court noted also that there was no urgency and or efficiency by the NFMU in considering VCT’s application.

State burden
The Court said both the government and the NFMU bore the burden of showing the refusal to grant VCT’s licence was justifiable and within the limitations as set out in Article 146:2 of the Constitution. The Court ruled that the burden could not be established by “a meaningless rehash of those matters set out in Article 146:2” while noting that what was set out in the respondents’ affidavits was a feeble attempt to discharge that burden.

Further, the Court said that the Attorney General and the NFMU were of no assistance in the determination of issues raised in the appeal because no submissions were made to the court on behalf of the AG or the NFMU despite commitments that such would have been done. The Court commended Senior Counsel Rex McKay who appeared on behalf of VCT saying care, skill and industry were reflected in his submissions before the bench.

“…the AG and the NFMU have demonstrated a contemptuous disregard of the Court of Appeal. We roundly condemn it and clearly signal that this is not the conduct we are prepared to tolerate or condone”, the acting Chancellor said yesterday.

In June Vieira sold his station to the Ramroop Group, which launched the Guyana Times last year.

Milestone
Attorney-at-law and Chairman of the Alliance For Change, Khemraj Ramjattan who was present in court for the ruling yesterday hailed the decision saying it is a milestone in the constitutional history of Guyana. He said the Court of Appeal panel sitting in the matter was “bold and brave in relation to its tending freedom and liberties at the judicial level”.
He said too the decision is consistent with what is happening in more profound democracies within the Caribbean and other jurisdictions.

Ramjattan said also that VCT was discriminated against on political grounds. He said government wants exclusive control of the airwaves, adding that it is not only unlawful but obviously discriminatory. He made reference to CN Sharma saying the ruling yesterday also has implications for the television station owner who had also applied for a radio broadcast licence.

Yesterday’s Court of Appeal ruling was also in line with the contours of a decision by Chief Justice (ag) Ian Chang in December last year in a case where a Lindener had applied for a radio licence from the NFMU and had been ignored.

The CJ said that while no applicant has an absolute right to a licence to operate a radio or TV station, or residents the absolute right to receive information, government has a constitutional duty to deal with applications efficiently.

The constitutional case had been brought by Region 10 residents Norman Chapman and Mortimer Yearwood against the Attorney General and the Guyana Elections Commission (GECOM). The CJ contended that Region 10 residents had been hindered in their enjoyment of freedom of expression under Article 146 and that upon the furnishing of the relevant information by the applicants in the instant case for licences the government should “forthwith” consider their applications under the current law.

“This court finds that there was excessive delay by the State in considering the second-named applicant’s applications for licences to operate a radio and a television network in Region 10 and that such a delay constituted a violation or infringement of both applicants’ right to freedom of expression under Article 146 of the Constitution in so far as their freedom to receive ideas and information as residents of Region 10 was hindered or restricted by such delay”, the CJ declared.

CJ Chang noted that in this case none of the applicants had provided the requisite information for the proper consideration of the application but said that should they do so “the government is ordered to consider their applications forthwith in accordance with the existing law which relates to the processing of applications for licences to broadcast”. The government had subsequently said that it was going to appeal this decision.

In the case of the Guyana Court of Appeal decision yesterday, if the government was similarly inclined it would have to lodge its appeal at the Caribbean Court of Justice.
The government recently signalled that it will soon present legislation in Parliament on a broadcast authority. Such legislation could potentially pave the way for the granting of more radio licences.