Dear Editor,
I refer to the article ‘PM favours more broadcast licences over rescinding those wrongly given out’ in your Stabroek News’ edition of 12th March.
The article states that Prime Minster, Mr Moses Nagamootoo, the Minister responsible for broadcasting, is of the view that it would be better to issue more broadcast licences to fit and proper persons, than to cancel those seen as wrongly issued by the former President, Mr Bharrat Jagdeo, when he was Minister responsible for broadcasting.
This is a wise decision by the Minister, and is a deft step to avoid the pitfalls inherent in cancellation.
The former President created great controversy when he issued a number of licences to persons perceived as friends and family, or at least sympathetic to the then ruling party, the PPP/C. Several commentators have urged the summary cancellation of these on the grounds of inter alia, illegality and improper issuance. These persons had expressed the view that apparently, the former President Jagdeo, had agreed with former President HD Hoyte, not to issue new licences until the advent of a new Broadcast Act and Authority. However, Mr Jagdeo is stated to have breached this undertaking by issuing the licences shortly before the coming into operation of the present Broadcasting Act. This, in the view of these persons, invalidated the licences and rendered them void. Persons have also questioned the bona fides of President Jagdeo’s motives in issuing licences almost exclusively to persons well disposed towards him and his party.
While these may well be good reasons in principle for taking action to terminate these licences, the Minister has correctly resisted the temptation to do so. This is the counsel of prudence for two very good reasons. Firstly, former President Jagdeo, at the time he issued the licences, did so in his capacity as the Minister responsible for broadcasting and the President of Guyana. Indeed, it was the State of Guyana that issued these licences. Accordingly, from the time of the issue of the licences, the licensees acquired a legitimate expectation that they would be permitted to develop broadcast businesses and to carry on these businesses under the licences. Where they have expended moneys in
furtherance of this expectation ‒ and a number have apparently expended substantial sums in establishing broadcasting stations – should the State of Guyana subsequently reconsider its position and decide to withdraw the licences, it would be liable to compensate the former licensees for loss and damage suffered by them due to breach of their legitimate expectation. These sums could be very substantial and may place a great strain on the finances of the Treasury of Guyana.
Secondly, even if the motives of the former President Jagdeo were not bona fide, events may have overtaken us, and cancellation on these grounds may no longer be available. Section 20 (1) of the Broadcasting Act, 2011, requires all licensees carrying on broadcasting immediately prior to the coming into operation of the Act, to re-apply for the issue of new licences. Apparently, all of the former licensees (including those created by former President Jagdeo) applied for and were issued new licences under the Act. If that is the case, then the initial motives behind their creation and issue are no longer of any legal or other significance. The Authority would therefore have to possess some other good reason to cancel licences which it had itself issued previously. Again, any attempt to do so may well be deemed unlawful by the courts and struck down accordingly.
No doubt, all of these considerations engaged the mind of the Minister at the time he arrived at his decision. It appears to be a sound decision and the best one he could have made in the present circumstances. If the motivations behind the previous licences were improper, resulting in their holders not being fit and proper persons to be awarded licences, the solution is not to cancel the licences, thereby exposing the state to the possibility of substantial awards of damages, but instead, to avoid this possibility by simply enlarging the number of licensees. There is no disadvantage to redound to the Minister or the state from taking that position.
Yours faithfully,
Brynmor T I Pollard, SC
