RE-APPLY AND INSIST ON PROMPT HEARINGS

Dec 12, 2012 Features / Columnists, Peeping Tom

The Opposition blundered when it opted to nominate a representative to the Guyana National Broadcasting Authority (GNBA) without insisting that the National Frequency Management Unit (NFMU) considers its outstanding roll of applications for broadcasting licences.
The Opposition blundered when it gave moral sanction to the government to constitute the GNBA before the NFMU had complied with a decision of the Courts concerning the granting of television licences.
The NFMU had been ordered by the courts to consider the applications submitted for licences. That was not done and now the authority to grant licences has been assumed by another body, the GNBA.
The applicants also made a mistake in not taking the NFMU to court for contempt of that court order, after it was clear that their applications were not being considered.
But those applicants may have felt that with the government signaling that it would appeal that decision, any application for contempt would not have had the desired effect. It is doubtful whether that court order can now be enforced in light of the establishment of the GNBA.
The Opposition may have presumed that the establishment of the authority would have allowed for all the undetermined applications to be considered, but clearly that was a wrong presumption, because one of the first acts of the GNBA was to effectively nullify those applications by demanding that all the applicants reapply.
The applicants should not take too seriously the suggestion made that they file a class action suit against the government claiming discrimination. It should be noted that recourse to the courts for discrimination has to be based either on a violation of the constitution or violation of a specific provision in the law that provides for equal treatment.
The constitution of Guyana prohibits discrimination on certain grounds – race, ethnicity, religion etc – none of which can be seemingly adduced in support of the applicants’ case.
In addition, any class action suit alleging discrimination will have to confront the ruling that no one has an absolute right to a licence. Thus, since no one has such a right, then the denial of a licence cannot be said to constitute discrimination, unless it is established that the decision was uneven, arbitrary and capricious.
In the case of the Central Broadcasting Services Limited and Sanatan Dharma Maha Sabha of Trinidad and Tobago vs. the Attorney General of the Trinidad and Tobago (2006), the Privy Council held that it is the government’s legislative and constitutional roles to ensure the efficient, objective and non-discriminatory handling of applications.
In the instance, however, the applications of those who had previously applied are still to be considered by the new authority, and until such time as they are considered or there is a delay or a refusal to consider them, it would be premature to allege uneven treatment by the new authority.
Article 149 (d) of the Constitution disallows the State from denying anyone equality of treatment or equal protection under the law, but resorting to this provision as a defence will still prove problematic, in that the authority which now has to be taken to court is the GNBA and it cannot be said the decision of the GNBA to demand that all old applicants reapply constitutes unequal treatment.
Those who had previously applied for licences should therefore resubmit their applications and insist that their new applications be heard promptly. This demand is consistent with Justice Chang’s ruling that delay in responding to applications constitutes an infringement of the applicant’s right to freedom of expression.
If the GNBA fails to act in an evenhanded manner in considering the applications that they have asked to be resubmitted, then it does seem as if there can be a successful challenge.

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