The courts will throw out the amendments to the broadcast law

Aug 17, 2017 Letters

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Dear Editor,
I refer to my letter in KN yesterday, captioned on the amendments to the broadcast legislation. My other arguments follow. The other draconian and constitutionally offensive feature of the amendment is contained in Clause 8, under the caption ‘Programmes’. It mandates every broadcasting agency to broadcast Public Service Programmes for a total of up to 60 minutes per day between 6 to 22 hours, free of cost. It mandates the broadcasting agency to submit to the GNBA, its schedule and the time slots set aside for Public Service Broadcast. It empowers the GNBA to reject the schedule presented and dictate time slots for publishing these Public Service Broadcasts. It also creates a criminal offence for failure to air these broadcasts.
The Amendment provides a most egregious definition of “Public Service Broadcast”. “It means the broadcast of a programme produced for the purpose of informing and educating the public, and promoting policies and activities of the Government that benefit the public as a whole”. “Public Service Broadcast” is therefore, simply, a vulgar euphemism for Government propaganda.
This Stalinist imposition has no place in a free and democratic society. The Prime Minister, in attempting to defend this obscenity, sought refuge in the Principal Act and attempts to distort its provisions. The Principal Act does not mandate but “require licencees to carry information on any programme issued by the Civil Defence Commission, the Guyana Police Force, the Guyana Fire Service and or health services and other programmes as public information deemed appropriate and necessary in terms of national security, emergency and disaster as a public service at no cost”. [See Section 20 (I)].
It is easy to discern that this stipulation in the Principal Act radically differs from the one-hour mandatory imposition of public service broadcast, which is legislated in the Amendment. No spin by the Prime Minister or anyone else to equate the two will succeed. Firstly, the requirement to air these programmes is not mandatory in the Principal Act. Most importantly, the Principal Act contemplates public welfare and national interest information emanating from semi-autonomous state agencies not government activities from the Government itself.
This mandatory imposition also violates Article 146. Inherent in any freedom to do an act, is the freedom not to do that act. Thus, the Trinidad and Tobago Court of Appeal struck down as unconstitutional, an Act which provided for compulsory membership in a trade union of all cane farmers. The court held that freedom of association includes the freedom not to associate or belong to an association. See Island Wide Cane Farm Union v Seereram [27 WIR page 379]. Therefore, the mandatory imposition of this one-hour public service programme will infringe on broadcasters’ freedom to broadcast. The fact that the hours are stipulated and are prime time and GNBA is authorized to impose this hour on the broadcasters’ schedule as they see fit, further exacerbate the transgression.
In the case of Benjamin v The Minister of Information et al [2001] 4LRC 272, a host of a radio phone-in programme on the Government-owned radio station in Anguilla had become very popular. It subsequently became very critical of the Government. The Minister of Information and Broadcasting suggested that the format of the programme be changed to involve discussion panels instead of phone-in participation by the public. The broadcaster was unwilling to change his format.
The programme was then closed down. The broadcaster and two listeners launched legal proceedings on the ground that the broadcaster’s freedom to broadcast, was firstly interfered with by the change of the format of the programme and was taken away, altogether, when the programme was closed down and the listeners’ right to receive and impart ideas and information without interference, as guaranteed by the Constitution of Anguilla, were infringed. The Privy Council upheld their legal challenge and ordered the Government to resume the radio programme in the call-in format. This case clearly illustrates the unconstitutionality of the Amendment under review.
The one-hour imposition has an impact on property rights of the broadcasters, as well. It is common knowledge that these media outfits are in the business of selling airtime. The free one-hour imposition therefore amounts to an expropriation of their money. It is trite law that property includes money. So this free one-hour imposition by the State will amount to compulsory acquisition of private property without compensation and therefore, violates Article 142 of the Constitution. Some media operators estimate their loss will be nearly $1M per month as they sell one hour airtime for $30,000.
There are other facets of the Bill which render it draconian, oppressive and resultantly unconstitutional. For example, the regime of new fees, unlike what the Prime Minister says, would cost broadcasters much more as they now have to pay, not only a fixed fee, but a fee for every zone in which they will be licenced to broadcast. So, a radio station with which I am familiar now pays an annual fee of $2.5M to broadcast.
When the Amendment comes into force, and if that radio station is licensed to broadcast to the same spectrum reach which it now enjoys, its fees will be increased to nearly $8M, annually, because of the zoning system which the Amendment imposes. The Constitution will not countenance such oppressive conditionalities to be imposed upon the fundamental rights and freedoms guaranteed by it. The Constitution would regard these conditionalities as undue fetters which would make the true enjoyment of the civil liberties it guarantees, as illusory. They will be struck down as unconstitutional. Space does not permit me the opportunity to elaborate further on other aspects of the Bill. Nevertheless, I believe that I have provided sufficient grounds for the Government to proffer some answers.
Anil Nandlall

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