JUSTICE CHANG’S DECISION IS SOUND

Dec 21, 2008 Features / Columnists, Peeping Tom

---

I am now in receipt of a copy of the judgment of the learned Chief Justice (ag) Ian Chang in the case involving an application for a broadcasting license.

I am now satisfied that he did not make a specific order for a licence of be granted to those who brought the motion against the government.

In his decision, Justice Chang affirmed my own view that no one has an inalienable (he used the word absolute) right to be granted a licence. This is a sound ruling, and is consistent with the attitude that has been adopted by the Privy Council in hearing appeals of a similar nature to the constitutional motion ruled on by Justice Chang.

The Privy Council has generally refused to adopt a limited interpretation of freedom of expression. They have ruled, as Justice Chang has ruled, that notwithstanding the fact that no one has a definite right to be given a licence, the non-action on an application infringes on the constitutional guarantee of freedom of expression.

I, of course, have problems with this leap in logic. I personally believe that if no one has a right to be granted a licence, then the denial of a licence cannot be said to have infringed freedom of expression. If there is no right to a licence, how could not obtaining a licence be in violation of the right to free expression?

The Courts, however, are guardians of the Constitution, and clearly when it comes to fundamental rights such as freedom of expression, the Courts have generally refused to engage in a narrow and restricted interpretation of these rights.

This is why despite the fact that the Courts accept there is no absolute right of anyone to a license, it still maintains the position that the failure, whether through denial or delay, constitutes an infringement of the right to freedom of expression.

For the Courts to hold otherwise would leave the right to free expression vulnerable to the whims and fancies of the Executive. This is clearly something that the Courts cannot allow in a democratic society.

In his ruling, the learned Justice Chang noted a ruling by Lord Mance who observed that the government’s role is to ensure the timely, efficient, objective and non-discriminatory granting of licences, thereby securing freedom of expression. Where there is failure in this regard, there is an infringement of freedom of expression.

Justice Chang found that in the matter before him, there was excessive delay by the State in considering the second-named applicant’s applications for licences to operate a radio and a television network in Region 10, and that such delay constituted a violation or infringement of both applicants’ right to freedom of expression under Article 146 of the Constitution.

While I understand the argument and the precedents that inform Justice Chang’s position, I do not agree with it. I still hold that the fundamental right to freedom of expression, as was stated in the Eastern Caribbean Supreme Court case involving the Observer newspaper, is couched in negative terms, and thus does not create a positive obligation for government to secure freedom of expression by granting licenses.

However, I do accept that in this line of argument I am alone and as isolated as man on a desert island, and therefore I do not expect any Court to go against the tenets of the reasoning outlined in Justice Chang’s decision, which while I disagree with certain aspects, as I have outlined above, I consider very sound, and one that should make it into international law reports. I commend Justice Chang for his decision but I beg to defer on some points.

Now that we have a ruling, the PNCR is stepping up the ante, insisting that the government should begin to consider applications for radio and television licences. I think the government should abide by Justice Chang’s ruling and appeal only to ensure that those points of law with which it disagrees are reversed. It should, however, see the wisdom in moving ahead in granting licences.

I believe there are strong and compulsive grounds to insist that a condition for the liberalization of the telecommunication sector should be the institution of broadcast legislation.

This is both a political, and I believe a legal imperative, because the Courts have recognized that the airwaves are a public resource which needs to be regulated in the public interest. The mechanism for regulation is through legislation.

I therefore would insist to the government that it respects the ruling of Justice Chang and immediately move forward, now that the PNCR wants it to grant licences, with broadcast legislation. I expect that the existing television stations will resist some aspects of the proposed legislation, but the government should not be deterred.

I urge the government to ensure that in enacting legislation that it ensures that two general principles are respected. The first is that the public has a right to ensure that it receives adequate rental for the use of airwaves.

Given the position adopted by the Courts, I believe that once a licence is granted it will be difficult to revoke it, except under terms and conditions specified in law, and even this could be extremely protracted.

Thus, it can be construed that a licence, once granted, is for an eternity, and the rentals or lease fees for use of the airwaves must reflect this perpetuity.

Secondly, I believe that there should be incorporated in any legislation, a review and complaints authority that would have the power to sanction stations for abuses.

I therefore urge the government to move ahead with broadcast legislation and let the chips fall where they must.

---

---