Arguing that government’s minority status in the National Assembly does not give it the authority to bring the Broadcasting Act 2011 into force, businessman and broadcaster Jacob Rambarran has filed a constitutional motion to have the Act declared illegal.
“The Broadcasting Act 2011 establishes a politically controlled Board to dispose of a State asset, to wit, the spectrum and gives power to the executive which does not have the command or support of a majority in the National Assembly. The Order purporting to bring such a law into force by the executive is unconstitutional and subversive of democratic principles and the rule of law,” says the motion filed by attorneys R. Satram, C.V. Satram and M. Satram on behalf of Rambarran and his company Rambarran Broadcasting Systems (RBS) Limited.
“The President who does not have the command or support or confidence of a majority in National Assembly was not entitled to bring the Broadcasting Act 2011 into force without a confirming resolution of the Assembly,” it said.
The Broadcast Act was passed in July 2011, without the support of the PNCR, the main opposition party at the time. It provides for the establishment of the National Broadcasting Authority, with a Governing Board comprising not less than four and not more than seven persons, one of whom shall be its Chairperson. The authority is responsible for, among other things, establishing classes of licences, the issuing of licences for terms not exceeding ten years and for the suspension and revocation of licences.
Since then, concern has been expressed that the governing board of the Guyana National Broadcasting Authority (GNBA) is almost wholly composed of persons with links to the government and there have been calls to have the Act amended or repealed.
In the constitutional motion filed recently, the applicants are seeking several reliefs including a declaration that the Broadcasting Act 2011 and the Order bringing it into force are ultra vires the Constitution of Guyana including in particular articles 146 and 149 D (1), illegal and void. They are also seeking a further declaration that they are entitled to have a renewal of a broadcasting licence in terms similar to and with the same effect as the licence issued to Rambarran for the establishment of a television broadcasting station for 2012 upon payment of all lawful dues for the year 2013 and for each succeeding year while the station is maintained by him.
In his Affidavit in support of the motion, Rambarran said that prior to the licence issued for 2012, RBS had been in the business of broadcasting under annual licence for upwards of 20 years. He noted that on July 28, 2011, the Broadcasting Act 2011 was passed by the National Assembly and it was assented to by then president Bharrat Jagdeo on September 27, 2011.
Rambarran noted that the Act did not come into operation on assent with Section 1 of the Act providing for it to come into operation on such date as the Minister may by order appoint. An order “purporting” to bring the Act into force on August 28, 2012 was made by the Prime Minister on August 24, 2012, he said. The businessman pointed out that the Act did not repeal the Post and Telegraph Act, Chapter 47:01 under which licences to broadcast were issued. Licences continued to be issued under the previous Act after the Broadcasting Act, 2011 was passed by the National Assembly but before it was brought into force. The previous Act remains on the statute book, he said.
“I am advised by my Attorney-at-Law and verily believe that licences to operate broadcasting stations can be issued under the previous Act because it was not repealed by Parliament, the Act purporting to repeal it having been unlawfully brought into force by an executive which does not have the confidence of a majority of the National Assembly and which has repudiated its authority,” he said.
Following the November 2011 elections, the PPP/C lost its majority in the National Assembly.
“I am further advised and verily believe that the Act has introduced uncertainty into the law relating to the grant of licences by purporting to provide concurrent authority with the previous law which had to be read and construed in conformity with article 146 of the Constitution in accordance with Section 7 of the Constitution of the Co-operative Republic of Guyana Act, 1980,” he said. Rambarran argued that Parliament in contravention of Article 39 of the Constitution enacted the Broadcasting Act 2011 without due regard to the general principles set out in Chapter 1 of the Constitution. “The principle of inclusionary democracy provided by article 13 of the Constitution has been negated by the composition and authority of the Board of the Broadcasting Authority under the Act. Parliament in enacting the Broadcasting Act 2011 disapplied the provisions of article 39 which required Parliament and the Courts to pay due regard to international law, international conventions and charters bearing on human rights,” he said.
The businessman said that RBS has been advised by its attorney that the National Frequency Management Unit which has the power to prevent a broadcast licence from being granted by the Board of the Authority is not representative of the nation and cannot lawfully be invested with such power which has caused the Board of the Authority to be servient to it.
“The Applicant Company has been further advised that the Broadcasting Authority may not lawfully claim or receive fees or impositions which are not imposed by Parliament on licencees. The spectrum is public property and monies derived from individuals and corporations in the State concerning its use can only be lawfully received or taken on the authority of Parliament which cannot authorise any fee or imposition by an unconstitutional law. Parliament is required to act in conformity with the Constitution. Laws inconsistent with the Constitution are to that extent void,” he argued.
Rambarran said that the spectrum is public property and that its use is for the benefit of the people who ought to be concerned in its disposition. “The provisions of the Constitution and in particular article 149D (1) ensures to all the people of the country equality of treatment and the protection of the law. The Act provides for a politically controlled Board which represents the party in control of the executive but does not represent the people who exercise sovereignty by and through the National Assembly,” he said.
“The Board is in the premises reflective of party political paramountcy which is contrary to the Constitution and in particular the sovereignty of the people which is exercisable by their representatives in the National Assembly which is entitled to control the executive. The Act is intended to deprive the Assembly of such control,” he said. Rambarran added that the use of the spectrum for broadcasting under licence can only be constitutionally valid and legal if the system of granting licences is exercised by an independent and autonomous body created or approved by the National Assembly.
“I am further advised and verily believe that the Act is a contrivance to secure party political control over the spectrum and its use with potential for political partisanship and arbitrary governance,” he said.