JUSTICE CHANG’S RULING

Dec 17, 2008 Features / Columnists, Peeping Tom

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I had long held the view that no one has an inalienable right to a radio or broadcasting licence and thus either the denial of such a licence or the constructive denial, such as what takes place when there is no response to an application, does not hinder the enjoyment of freedom of expression.
I was affirmed in this position by a 2001 decision of the Privy Council in the Observer Publications case in which the learned Justices reiterated that no one had a right to a broadcast licence, noting that the airwaves is public property which has to be regulated and rationed in the public interest.
I was therefore stunned when I read that the very learned and respected Chief Justice of Guyana, Ian Chang, had ordered the government to issue licences to two persons from Linden who had made an application and who were, I presume, either informed that no licences would have been granted until new broadcast legislation was in place, or whose application was not dealt with because of this policy decision.
When I read about Justice Chang’s decision, I immediately made a conference call to the publisher of this newspaper expressing the opinion that perhaps his report did not adequately capture what the learned Chief Justice had ruled.
I explained that, while I agreed wholeheartedly with the view said to have been expressed by Justice Chang that a political agreement between the Leader of the Opposition and the President could not abridge the constitutional right to freedom of expression, I did not see how a specific order could have been made for the government to issue licences to the complainants.
I suggested to the publisher of Kaieteur News that he obtain a copy of the said judgement since it constitutes an important decision with implications for the granting of licences in Guyana. I also indicated if it were not possible that this newspaper do a more detailed report on the judgement.
I have since noted the excitement that the ruling has evoked in opposition circles. It has even been said that Justice Chang has broken new ground. I can only make a judgement based on what is before me. But even in the absence of the grounds upon which Justice Chang made his ruling, I do not believe that we are facing a novel decision.
The same Privy Council ruling in the Observer Publications case, noted above, made a similar judgement on facts, similar but not totally identical to those in the case before Justice Chang.
I believe that the true test of Justice Chang’s decision will come in the local Court of Appeal and eventually in the Caribbean Court of Justice.  I anticipate that there will be, in both instances, deviations from Justice Chang’s rulings, especially on the order to issue licences.
The granting of a broadcast licence in normal circumstances is bound by considerations of a technical nature as well as the ability of the applicants to demonstrate that they can finance the operation of a station. Thus I find it difficult to comprehend a ruling which would order that licences be granted unless the Court itself was satisfied that the applicants had the financial means and the technical capability to own and operate a station.
This is all the more reason why I believe a copy of the judgement should be made public in the same way as the decision in the Esther Pereira Elections Petition Case was made public.
I would love to have the opportunity to compare Justice Chang’s ruling with that made by the Eastern Caribbean Court of Appeal (ECSC) and the Privy Council in the Observer Publications case. In the former, for example, it was argued quite persuasively that the government does not have a positive obligation to guarantee freedom of expression.
The ECSC had noted that the fundamental rights provisions of the Antigua Constitution (which is almost identical in wording to our own provisions) was negatively couched.
The constitutions of Antigua and Guyana do not indicate that the government must facilitate freedom of expression by granting licences to applicants. Instead they state that nothing should be done to hinder the exercise of this right. Thus, there is no positive obligation.
I accept the argument that the government cannot for an extended period hide behind the excuse that it will not be granting licences until broadcast legislation is in place. What I am asking is whether this policy constitutes a denial of applications and, thus, whether the government through its inaction can be said to have done something to hinder freedom of expression. Justice Chang may have answered this question in his ruling.
I have noted that the controversial litmus test enunciated by Justice Crane in the New Guyana Company case years ago is hardly ever referred to these days. That test by Justice Crane as to whether any action constitutes a denial of freedom of expression is the direct impact test.
Justice Crane had argued that the action under question must directly impact on the fundamental right, and in his decision in the Mirror newsprint case he had argued that the non-granting of an import licence did not directly collide with that right.
I had used the same argument in these columns to make the point that the denial of state advertisements to Stabroek News did not directly impact on that newspaper’s right to freedom of expression because there was no obligation of the government  to advertise in that newspaper. Thus, it was my contention that the withholding of advertisements did not prevent the Stabroek News from printing its newspaper.
I was not surprised that the Stabroek News never challenged in our courts the government’s rationing of ads.
In the same Observer Publications case referred to above, the ECCA cited the case of Fred L. Shuttlesworth v City of Birmingham Alabama 394 US P.162 where Stewart J. observed that a licence permits broadcasting but the licencee has no constitutional right to be the one who holds the licence.
I cannot therefore agree with any decision which abridges the discretion of government to decide on who is granted licences. I therefore anticipate that Justice Chang’s decision will inevitably be overturned by higher courts. In the meantime, I suggest that this newspaper obtain and publish the full judgement.

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