The amendments to the Broadcast Law violate the constitution

Aug 16, 2017 Letters

---

Dear Editor,
The Parliamentary Opposition, the Guyana Press Association, the owners of almost every media house in the country, the Private Sector Commission, 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 criticisms, 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. In the ensuing paragraphs, I endeavour to chronicle the fundamental objections to the Bill with the hope that it will attract an intelligent response from the Government.
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 of the Constitution 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 communication ideas and information without interference. That freedom of expression and of the press is sine qua non to a free, civilized and democratic society is incontrovertible.
Currently, there are over thirty media outfits which are operating under valid licenses issued by the Guyana National Broadcasting Authority (GNBA) under the provisions of the Principal Act. Each of those licenses would have been issued upon the payment of a prescribed fee and would be valid for a defined duration. It is these licenses, that in essence, lawfully authorize these agencies to broadcast. Excepting 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 licenses upon the Bill coming into force and mandates all licensees to re-apply for new licenses.
The matter is compounded by the fact that the Amendment does not guarantee a re-issuance of the licensee. Other provisions of the Amendment empower the GNBA to alter licenses which are to be issued by reducing the spectrum reach which an operator may have enjoyed under his existing license 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 license the law mandates that the licensee 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 license must be afforded a hearing before the license 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 licenses which have an economic value. All commercial licenses such as liquor, trade and mining licenses 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 license 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 license 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 license is not property, is palpable wrong.
Therefore, when the Amendments come into force, by virtue of Clause 9, all existing licenses, 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 license 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 licenses 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 licenses 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 license is issued, any alteration which would reduce the spectrum reach of the broadcast, hitherto enjoyed by the licensee, would result in a diminution of the value of the license (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 license. It also obliges the payment of compensation for termination, suspension or alteration of any such licenses. More analysis will follow in another letter
Anil Nandlall

---

---