Broadcasting Bill violates constitutional rights

Dear Editor,

The Parliamentary Opposition, the Guyana Press Association, the owners of almost every media house in the country, the Private Sector Com-mission, the Georgetown Chamber of Commerce, the largest amalgam of trade unions in the country, FITUG, the Association of Caribbean Media Workers, Reporters without Borders and the International Press Institute, have all expressed their condemnation of the Broadcasting (Amendment) Bill 2017, and the failure of the government to consult prior to its promulgation in the National Assembly.

Against this thunderous deluge of criticism, rather than resort to a review of the Bill, a once champion of press freedom, Prime Minister Moses Nagamootoo, like the proverbial ostrich, buries his head in the sand and attempts a most philistine rebuttal of and justification for it. Expectedly, in his missive spanning five pages, the Prime Minister abysmally fails to address the gravamen of the criticisms raised against the Bill. Instead, he attempts to argue that the Bill only seeks to fill certain gaps in the Principal Act and strengthen its regulatory framework. You will note that none of the concerns raised addressed “gaps in the Principal Act” nor did anyone fault the Principal Act for weakness in its regulatory framework. The Prime Minister, for obvious reasons, did not address the issue of non-consultation. The truth is, he cannot. There simply was no consultation.

The most fundamental objection to the Bill is that it violates the constitutional rights and freedoms of broadcasters and the citizenry guaranteed by the Constitution and therefore, to the extent of those violations, the Bill is unconstitutional and unlawful in accordance with Article 8 of the Constitution. Article 8 declares the Constitution to be the supreme law of Guyana and cautions that if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.

Seminal to this discourse is Article 146 of the Constitution. It guarantees to every citizen, as a fundamental right and freedom, freedom of expression, which includes freedom of the press, freedom to hold opinions without interference, freedom to receive ideas and information without interference and freedom to communicate ideas and information without interference. That freedom of expression and of the press are the sine qua non of a free, civilized and democratic society is incontrovertible. Currently, there are over thirty media outfits which are operating under valid licences issued by the Guyana National Broadcasting Authority (GNBA) under the provisions of the Principal Act. Each of those licences would have been issued upon the payment of a prescribed fee and would be valid for a defined duration. It is these licences, that in essence, lawfully authorize these agencies to broadcast. Except-ing private radio, all the other media outfits were operating long before the enactment of the Principal Act in 2011, some as far back as 30 years. Without affording any of the operators a hearing, Clause 9 of the Amendment terminates all existing licences upon the Bill coming into force and mandates all licensees to re-apply for new licences. The matter is compounded by the fact that the Amendment does not guarantee a re-issuance of the licence. Other provisions of the Amendment empower the GNBA to alter licences which are to be issued by reducing the spectrum reach which an operator may have enjoyed under his existing licence and impose a new regime of fees in respect of each zone, which the Amendment now creates, in which the broadcaster would be licensed to broadcast.

This singular clause violates the principles of natural justice, the Constitution and the fundamental rights and freedoms of the broadcasters, the recipients of their broadcasts and assaults freedom of the press in multiple ways.

Even for the termination of a gratuitous licence the law mandates that the licencee be afforded a hearing. This is trite law. Thus, in Burroughs v Ketwaroo (40 WIR 287), the Trinidad Court of Appeal emphasized that the holder of a firearm licence must be afforded a hearing before the licence is revoked and that reasons should be provided for the revocation. A failure to comply with either of these requirements would render the revocation contrary to the rules of natural justice and unlawful. These principles apply, a fortiori, to licences which have an economic value. All commercial licences such as liquor, trade and mining licences etc are considered property because they have an economic value. Dr Fenton Ramsahoye in his book, The Development of Land Law in Guyana, classifies mining licences as real property, capable of being levied upon. In Banks v Transport Regulation Board (1968) 119 CLR 222, Chief Justice Barwick of Australia had no difficulty in holding that a taxi cab licence is not a mere privilege, but property which provides its holder with a means of livelihood. Similarly, in Trivett v Nivison [1976] 1 NSWLR 312, the High Court of Australia held that a trainer’s licence is property, the revocation of which would amount to deprivation of property.

Based on the foregoing, it cannot be sensibly disputed that a broadcasting licence is property. Its value would depend, inter alia, upon the reach of the broadcast, its goodwill, the size of its viewership/listenership, etc. The argument by the Attorney General, therefore, that a broadcast licence is not property, is palpably wrong.

Therefore, when the Amendments come into force, by virtue of Clause 9, all existing licences, though not yet expired, will be terminated, by operation of law. As a result, broadcasters can no longer broadcast. So even the fees which were paid to broadcast until this licence expires, will be forfeited. Is this not a deprivation of their freedom of expression? Is this not an assault on

freedom of the press? Is this not a deprivation of the rights of the Guyanese people to receive information from these broadcasters? all of which are guaranteed by Article 146 of the Constitution. The fact that there is no guarantee that the licences would be re-issued at all, or will be re-issued with the same spectrum reach and that even if it is reissued, new conditionalities would be attached, including new prescribed fees, only aggravate the violations of Article 146.

As it relates to the deprivation of property, another article of the Constitution comes into focus. It is Article 142. It prohibits the State from taking away private property unless there is prompt payment of adequate compensation. Since it is established that the broadcast licences are property, their immediate revocation by Clause 9 of the Amendment, without the payment of any compensation, is violative of Article 142. Even if a new licence is issued, any alteration which would reduce the spectrum reach of the broadcast hitherto enjoyed by the licencee, would result in a diminution of the value of the licence (or property) and that would also be in violation of Article 142 of the Constitution. For this precise reason, Section 39 of the Telecommunications Act of Trinidad and Tobago, which governs broadcasting, mandates written notice to be served upon a licensee and for a hearing to take place if there is any suspension or termination of a licence. It also obliges the payment of compensation for termination, suspension or alteration of any such licences.

The other draconian and constitutionally offensive feature of the Amendment is contained in Clause 8, under the caption ‘Programmes’. It mandates every broadcasting agency to broadcast public service programmes for a total of up to 60 minutes per day between 6 to 22 hours, free of cost. It mandates the broadcasting agency to submit to the GNBA, its schedule and the time slots set aside for Public Service Broadcast. It empowers the GNBA to reject the schedule presented and dictate time slots for publishing these Public Service Broadcasts. It also creates a criminal offence for failure to air these broadcasts.

The Amendment provides a most egregious definition of Public Service Broadcast. “It means the broadcast of a programme produced for the purpose of informing and educating the public, and promoting policies and activities of the Government that benefit the public as a whole”. “Public Service Broadcast” is therefore, simply, a vulgar euphemism for government propaganda. This Stalinist imposition has no place in a free and democratic society. The Prime Minister, in attempting to defend this obscenity, sought refuge in the Principal Act and attempts to distort its provisions. The Principal Act does not mandate but “requires licensees to carry information on any programme issued by the Civil Defence Commission, the Guyana Police Force, the Guyana Fire Service and or health services and other programmes as public information deemed appropriate and necessary in terms of national security, emergency and disaster as a public service at no cost”. (See Section 20 (I)). It is easy to discern that this stipulation in the Principal Act radically differs from the one-hour mandatory imposition of public service broadcast, which is legislated in the Amendment. No spin by the Prime Minister or anyone else to equate the two will succeed. Firstly, the requirement to air these programmes is not mandatory in the Principal Act. Most importantly, the Principal Act contemplates public welfare and national interest information emanating from semi-autonomous state agencies not government activities from the government itself.

This mandatory imposition also violates Article 146. Inherent in any freedom to do an act, is the freedom not to do that act. Thus, the Trinidad and Tobago Court of Appeal struck down as unconstitutional, an Act which provided for compulsory membership in a trade union of all cane farmers. The court held that freedom of association includes the freedom not to associate or belong to an association. (See Island Wide Cane Farm Union v Seereram (27 WIR page 379)). Therefore, the mandatory imposition of this one-hour public service programme will infringe on broadcasters’ freedom to broadcast. The fact that the hours are stipulated and are prime time and GNBA is authorized to impose this hour on the broadcasters’ schedule as they see fit, further exacerbates the transgression.

In the case of Benjamin v The Minister of Information et al (2001) 4LRC 272, a host of a radio phone-in programme on the government-owned radio station in Anguilla had become very popular. It subsequently became very critical of the government. The Minister of Information and Broadcasting suggested that the format of the programme be changed to involve discussion panels instead of phone-in participation by the public. The broadcaster was unwilling to change his format. The programme was then closed down. The broadcaster and two listeners launched legal proceedings on the grounds that the broadcaster’s freedom to broadcast, was firstly interfered with by the change of the format of the programme and was taken way, altogether, when the programme was closed down and the listeners’ right to receive and impart ideas and information without interference, as guaranteed by the Constitution of Anguilla, were infringed. The Privy Council upheld their legal challenge and ordered the government to resume the radio programme in the call-in format. This case clearly illustrates the unconstitutionality of the Amendment under review.

The one-hour imposition has an impact on property rights of the broadcasters, as well. It is common knowledge that these media outfits are in the business of selling airtime. The free one-hour imposition therefore amounts to an expropriation of their money. It is trite law that property includes money. So this free one-hour imposition by the State will amount to compulsory acquisition of private property without compensation and therefore, violates Article 142 of the Constitution. Some media operators estimate their loss will be nearly $1M per month as they sell one hour airtime for $30,000.

There are other facets of the Bill which render it draconian, oppressive and resultantly unconstitutional. For example, the regime of new fees, unlike what the Prime Minister says, would cost broadcasters much more as they now have to pay, not only a fixed fee, but a fee for every zone in which they will be licensed to broadcast. So, a radio station with which I am familiar now pays an annual fee of $2.5M to broadcast. When the Amendment comes into force, and if that radio station is licensed to broadcast to the same spectrum reach which it now enjoys, its fees will be increased to nearly $8M, annually, because of the zoning system which the Amendment imposes. The Constitution will not countenance such oppressive conditionalities to be imposed upon the fundamental rights and freedoms guaranteed by it. The Constitution would regard these conditionalities as undue fetters which would make the true enjoyment of the civil liberties it guarantees, as illusory. They will be struck down as unconstitutional. Space does not permit me the opportunity to elaborate further on other aspects of the Bill. Nevertheless, I believe that I have provided sufficient grounds for the government to proffer some answers.

Yours faithfully,

Mohabir Anil Nandlall, MP

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