THE ACB SHOULD BE REPLACED WITH A JUDICIAL TRIBUNAL

Oct 09, 2011 Features / Columnists, Peeping Tom

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The Advisory Committee on Broadcasting (ACB) is not a judicial or quasi-judicial institution.  It is merely a body established through a political mechanism and aimed at ensuring a degree of fairness and impartiality when it comes to how complaints against broadcasters are handled.

When broadcast legislation was first advanced by the PPP government there was a provision for persons to make complaints to the subject minister, then the Prime Minister, concerning alleged violations of broadcast regulations. The then leader of the opposition. Mr. Desmond Hoyte, was rightly concerned that the powers to sanction broadcasters rested in the hands of a political operative, as proposed in the draft legislation. He was concerned that this power could be used in an impartial way. As a compromise, it was counter-proposed that the Prime Minister could sanction the broadcasters, but any sanction had to be based on the recommendation of  an advisory committee.
The clear intention of the proposal by Mr. Hoyte was to remove from any minister of the government the absolute right to sanction broadcasters. Since Mr. Hoyte, however, supported the need for regulation of the sector; since he recognized the need for action to be taken against violations of the law, he proposed that any disciplinary action must be based on the advice of an advisory body, and in order to ensure some degree of impartiality, it was proposed that the ACB comprise three persons: someone nominated by the government, someone nominated from the private sector and the nominee from the opposition.

The persons selected are not representatives of the private sector, the government or the opposition. When they sit on the ACB, they sit in their personal and professional capacities and do not represent those who nominated them. The PNCR needs to understand- and somebody should sit down and explain this to them- that a nominee is not always your representative.

On the Guyana Elections Commission, the person nominated by the opposition parties is not a representative of those parties. He is a nominee and therefore the leader of the opposition cannot remove that individual as he feels necessary.
There can be no question, therefore, about the opposition losing confidence in its nominee on the ACB and asking for a replacement. That cannot happen.
The only way the nominee can be replaced is if that person is no longer part of the ACB and if that person chooses to step down. If the PNCR’s nominee is no longer a member of the ACB, then the main opposition has a right to demand a replacement, in keeping with the understanding the government had with Desmond Hoyte. If, however, the person has not ceded his place on the ACB, the PNCR has to live with its original choice, just as how in elections it is expected to respect the will of the people.
The problem was that certain things were never formalized in law and as such, the ACB remains a mere advisory body, but the spirit of the agreement with Mr. Hoyte was to the effect that the government should not sanction unless such was recommended by the ACB.
The ACB, however, is not a quasi-judicial or an administrative tribunal. It merely advises. And this is where the problem lies. It can, as it is believed to have done in relation to the complaints made against CNS Channel 6, take complaints and render advice. But it has to be clear as to whether it is doing so under law or regulation. A regulation gives expression to the law. You cannot have a regulation unless that regulation is intended to give effect to some aspect of the principal law, and at this stage it needs to be asked what are the offences created under the relevant act that Regulation 23 is intended to give effect to.
A second problem is that not being a quasi-judicial, the ACB finds itself in an unenviable position of tendering advice – and that is all the ACB does – which the Minister of Information acts on. The fact that the ACB is not an administrative tribunal or a quasi-judicial body means that it is merely advisory. The ultimate decision to sanction resides with the executive and this is what Mr. Hoyte had wanted to limit.
Instead of quarreling over who should be replaced on the ACB, there should be an agreement on just what are the laws that have been violated under the Broadcasting and Telegraph Act and which specific laws Regulation 23 purports to give effect to.
Then there should be agreement on the establishment of an administrative tribunal. This tribunal should be headed by a judge and comprise persons of high repute, based on consultations and/or nominations. Such a body should be the body that should sanction television stations, and its rulings would obviously be subject to judicial review.
As things stand now, if the Minister of Information finds that CNS Channel 6 has committed another violation, that station can have its licence pulled, and this would be patently unfair given the fact that the Minister is all along acting merely on advice of a non-judicial body.

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