Dear Editor,
No one in their right mind could ever allege that the handout of radio and TV licences given by Jagdeo and the PPP government shortly before Jagdeo left office is not patently unfair, discriminatory and unequal. It is time the aggrieved media operators sue Jagdeo and the PPP for this act. Yes, I know the constitutional experts within the PPP will arrive here crowing that under section 182 of the constitution, the president gets automatic immunity for presidential acts committed while serving as president. However, that immunity is applicable only in the President’s personal capacity and actions in his personal capacity. The granting of radio and TV licences is not a personal act but an official act in an official capacity as president and also as Minister of Information. As such, these actions are not protected under section 182. There is no immunity for such official actions under section 182. There is no immunity under section 182 to prevent the President from being sued for acts committed in his official capacity as president or in any other official role he retains such as Minister of Information.
Thus, based on section 182’s limitation to only personal immunity, a lawsuit could be pursued against the President in his official capacity, Cabinet and the PPP government for unfair, discriminatory, unconstitutional and unequal granting of the licences.
Even if section 182 disallowed lawsuits against the President in his official capacity, which if clearly does not, there is precedent in the courts of the Commonwealth that show that even with official immunity, a President cannot act in a manner that is unfair, discriminatory, unconstitutional and unequal. Unlike Guyana’s section 182 which provides only personal immunity to the President and no official immunity, section 38 of the Trinidad constitution provides immunity for all functions/capacities of the President (both personal and official). Yet, in February of this year, a court in Trinidad ruled that the T&T’s President’s termination of the Chair of the Police Service Commission (PSC) was unfair, illegal, null void and of no effect because the President failed to provide the Chairman with due process, natural justice and his constitutionally protected rights. The T&T President did not appeal the decision. The President acting in his official capacity is bound by the constitution to take action and make decisions in accordance with natural justice and constitutional principles including fairness, due process, justice, equality, regard to the rights enshrined in the constitution and the advancement of the nation above any individual or entity.
That is the guiding ambit of every presidential action. Nation must be placed before partisan interests. The entire thrust of presidential decision-making must be to accrue the greatest benefit to the nation at large.
By no measure, and the Caribbean Court of Justice will agree with me, are justice, fairness, equality, safeguarding of the freedom of expression, media balance and the advancement of democracy satisfied with the granting of 15 out of 21 radio licences (five each) to (1) a personal friend who runs a pro-government newspaper and TV station, (2) the PPP`s newspaper and news organ and (3) a Deputy Permanent Secretary within a Ministry of the PPP government, that Ministry administered by Jagdeo`s relative by marriage. To deny established and proven independent media entities like Stabroek News and Kaieteur News that possess incredible media expertise, skill, qualification and capital can only be characterized as a deliberate assault on the independent media.
If the Mirror or Guyana Times newspapers could be granted a radio licence then there is nothing that prevents the two largest daily newspapers in Guyana (KN and SN) from obtaining such a licence. Not only do these media houses possess more resources than the Mirror or the Guyana Times, they have greater experience and have attained respectability. This act vilifies the freedom of expression clause in our constitution.
Handing out 10 out of 21 radio licences to a political party (PPP) and its media entity (Mirror) and to a serving member of the government (Deputy Permanent Secretary within the Ministry of Environment and Natural Resources, Omkar Lochan) is also an attack on the democratic foundations of the state and its constitution. This is tantamount to the government directly controlling 10 out of 21 radio licences while the opposition has access to none. If one adds the pro-PPP Guyana Times rag to the mix, this would be at least 15 out of the 21 radio licences granted to government and pro-PPP entities. This domination along with the exclusion of the independent media houses from the radio frequencies amounts to media dictatorship.
In a country where newspaper access is still limited due to geographical and literacy constraints, the political weaponization of radio is upon us. There can be nothing fair in this outlandishness and on this ground alone, these actions are unconstitutional. That a newspaper that was pivotal in helping to restore democracy to Guyana (Stabroek News) and in landing this very same PPP government back into power is now being barred from owning a radio licence when some PPP lackey in government gets five such licences is sickeningly shameful. There is no fairness in granting all four TV licences to one man while excluding TV companies that have been around for decades when they all have existing TV licences.
This course of action by Jagdeo repudiates the equality provisions of the constitution and recklessly damages the necessary balance in media that is required in Guyana. This act attempts to unscrupulously weaken the independent media by stacking the pro-government media.
This decision is blatant politicization of the airwaves and television spectrum of this country. It is rooted in political domination and coming from a government that now enjoys the support of less than the majority of Guyanese, it does not meet the public policy, constitutional, natural justice or political awareness litmus test.
This reprehensible giveaway of the nation`s limited radio and TV spectrum is a brazenly calculated and callous assault on freedom of expression. The fact these licences were given shortly before the President exited office should increase the scrutiny of the court since many jurisdictions prevent presidents from doing exactly this when they are ready to leave office. The Caribbean Court of Justice (CCJ) will be happy to remedy this atrocity from the Jagdeo regime.
The affected media operators should launch a lawsuit. While that lawsuit will result in Jagdeo’s actions being reversed, more importantly, it will create a new legal precedent in Guyana by confirming that our executive president does not possess unlimited powers, is not above the law and cannot exercise executive authority or discretion in contravention of the constitution and principles of natural justice. Aggrieved media operators, this is an opportunity to free this nation from the clutches of an all-powerful executive presidency operating with minority power and behaving like a dictatorship. Time for this madness to be fixed and curtailed.
Yours faithfully,
M. Maxwell
