Chief Justice (ag) Ian Chang says that while no applicant has an absolute right to a licence to operate a radio or TV station, or residents the absolute right to receive information, government has a constitutional duty to deal with applications efficiently.
This formed part of CJ Chang’s ruling on Friday in the constitutional case brought by Region 10 residents Norman Chapman and Mortimer Yearwood against the Attorney General and the Guyana Elections Commis-sion (GECOM) where he declared that Region 10 residents had been hindered in their enjoyment of freedom of expression under Article 146 and that upon the furnishing of the relevant information by the applicants in the instant case for licences the government should “forthwith” consider their applications under the current law. The Attorney general has since indicated his intention to appeal the decision.
CJ Chang’s written decision was ready yesterday, just three days after his ruling and quite a departure from the norm in cases before the High Court.
Yearwood and Chapman approached the court in 2005 seeking relief for breaches of Articles 40, 146 and 149 of the Constitution. Among other things they sought declarations that the failure to have radio broadcasts in Region 10 from stations other than the state-controlled NCN was a negation of free elections especially in light of the then approaching 2006 polls; that this failure was a hindrance of the enjoyment of their freedom of expression and freedom to receive ideas particularly in light of the then upcoming election; that the failure to enable broadcasts from a station other than NCN was discriminatory.
The constitutional case had its genesis in an application by Yearwood on October 5, 2001 to the National Fre-quency Management Unit (NFMU) for a radio broadcasting licence by his company Lanmac Investments Holdings Co. Ltd. Yearwood applied five days later to the Prime Minister for a television broadcasting network licence in the same region.
He received a response on October 19, 2001 from the Chief Executive Officer of the NFMU, Valmikki Singh saying that the joint committee on broadcasting that had been set up between the President and the Leader of the Opposition was deliberating on proposals for broadcast legislation and the government was developing a strategy for the reform and modernizing of the telecommunications sector. As a result, Singh said “your application will be placed on file and will come up for consideration at such point as sufficient progress” has been made. A similar response was received in relation to the television licence.
Yearwood did not pursue the applications thereafter but on November 9, 2005, with general elections due in 2006, he and Chapman filed the constitutional motion. The motion was not heard until this year by which time the elections had already been held.
Chapman testified in court that Yearwood’s applications were not successful and that Channel Six proprietor CN Sharma had also not been successful in his application to extend his television signal to Region 10. Noting that only NCN was available, Chapman said that he wanted information for the registration of voters and to learn of the programmes and policies of all political parties. He alleged that persons who were registered to vote in Region 10 were being denied the right to apprehend information relating to the 2006 elections and that his complaint against GECOM was that persons were being denied the opportunity to work as scrutineers and to discharge important functions.
Yearwood testified that he brought the motion because the information being received in Region 10 was partisan in favour of the ruling PPP/C. He acknowledged that his applications for licences in 2001 were not accompanied by a business plan but averred that he was not requested to provide such details.
Sharma also testified about his unsuccessful application in 2003.
Singh relied on his affidavit and said that it was necessary before the granting of a new licence that guidance be provided under the telecoms reform project on certain considerations such as frequencies, power of transmitters, height above terrain of the antennae and broadcasting standards.
Chief Election Officer Gocool Boodoo also testified on behalf of GECOM and stated that an intensive public relations programme had been pursued and that the Commission had utilized radio, television, print and electronic media and public address systems, pamphlets, fliers, jingles and skits to convey important messages.
Restricted
Chief Justice Chang in his consideration of the issues said he perceived the applicants to be contending that they were restricted in their freedom to receive ideas and information, in particular political ideas and information considering that the general elections were approaching. “An examination of the specific forms of redress sought by the applicants in the Motion paper does appear to support such a perception of the applicant’s case on the issue of violation of freedom of expression”, Chief Justice Chang said.
He noted that Article 146 (1) of the Constitution says that no person should be hindered in the freedom to receive ideas and information without interference; further Article 146 (2) established reasonableness in relation to what is required for regulating the technical administration and operation of telephony, wireless broadcasting or television.
He then cited the case of Central Broadcasting Services Ltd and Another V Attorney General (2006) where the UK Privy Council held that although it could not be suggested that any applicant had a right to be awarded a licence, the government’s role where it is in charge of the regulatory process is to ensure the “efficient, objective and non-discriminatory handling of licence applications” thereby enabling the speedy granting of a licence where appropriate and thereby preserving the constitutional right to freedom of expression.
The CJ said “Accordingly, it was held that where the handling of an application for such a licence can fairly be described as arbitrary and capricious, the applicant’s constitutional right to freedom of expression is infringed even though many aspects of the freedom may not have been adversely affected by the mishandling of the application”.
He noted in the instant matter Yearwood had made applications since 2001 and Sharma had also sought to extend his signal since 2003 and at the time of the filing of the constitutional motion on November 9, 2005 neither had been considered.
“Neither the second-named applicant nor Chandra Narine Sharma had an absolute right to a licence to operate a television or a radio broadcasting network in Region 10 (or any other Region). Neither did the residents of Region 10 (including the applicants) have an absolute right to receive ideas or information whether from the applicants or Chandra Narine Sharma or any other person. But on the other hand, in order to ensure that the constitutional right of the applicants and others (even though non-absolute) to (communicate or) receive ideas and information was not duly hindered or interfered with, the Government as the controller of the licensing process had a corresponding constitutional duty to deal with such applications in an efficient manner so that any appropriate grant could be speedily made”.
The CJ also cited the case of Observer Publications Ltd V Matthew and Others (2001) where the applicant had applied under the telecoms act of Antigua and Barbuda since March 1995 for a licence to operate a radio but though all the relevant information was supplied the matter was not disposed of some 17 months later or even five years on. In August 1996, the Office of the Prime Minister had advised the appellant that in the context of a government proposal to privatise the broadcast network no new licence would be granted until the process was completed.
CJ Chang noted that the Privy Council held that under sections 12 (1) and (2) of the Antigua constitution, which were similar to Article 146(1) of Guyana’s constitution, the appellant’s freedom of expression was infringed. Further, while the Privy Council found that there was no absolute right to a licence, where there were no justifiable grounds for refusal of the application under section 12 of the Antigua constitution, which was similar to Article 146 (2) of the Guyana constitution, such refusal constitutes a violation of the right to freedom of expression as enshrined in the constitution.
He quoted Lord Cooke in the Observer case: “At the time of the Privy Council hearing in late 2000, nothing appears publicly to have eventuated from the white paper. The respondents say that the broadcasting legislation of Antigua and Barbuda requires modernizing. That may readily be accepted, but is not an excuse for a refusal of or excessive delay in dealing with applications for licenses…”
Noting the similarities to this case, CJ Chang ruled that the argument of modernization and the need for political consensus for a new broadcasting regime provides no good excuse for the lengthy delay.
“To accept such reasons as providing a good excuse for excessive or inordinate delay is, in effect, to sacrifice the constitutional right to freedom of expression on the altar of the desirability of political consensus”, CJ Chang declared.
He added that the court as the guardian of the constitution could not elevate political expediency ahead of a constitutional right. CJ Chang ruled that applications for broadcasting licences should be considered and dealt with having due regard to and consideration of any reasonable forseeable technical problems from the granting of such a licence.
“This court finds that 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 a delay constituted a violation or infringement of both applicants’ right to freedom of expression under Article 146 of the Constitution in so far as their freedom to receive ideas and information as residents of Region 10 was hindered or restricted by such delay”, the CJ declared.
He added that the court did not see it fit to make an order directing the state to immediately provide measures for the applicants to receive information and ideas in Region 10 from operators other than NCN since there was no absolute right to a licence or to receive ideas and there was therefore no corresponding absolute duty for the government to provide for such.
CJ Chang noted that in this case none of the applicants had provided the requisite information for the proper consideration of the application but said that should they do so “the government is ordered to consider their applications forthwith in accordance with the existing law which relates to the processing of applications for licences to broadcast”. He also made this order in relation to Sharma furnishing all of the necessary information for the consideration of his application.
On the question of discrimination as alleged by the applicants, CJ Chang said he understood them to say that this was being done on the basis of their place of origin.
He ruled that not only was there no constitutional duty by the government to enable anyone to access ideas and information from any network but more significantly there was no evidence that Region 10 was similarly circumstanced as other regions where there were television networks other than NCN. Neither was there evidence that the government had licensed a network to operate in another region but said no to that same network in Region 10.
“There is simply no true comparator to enable this court to find discrimination by the government against the residents of Region 10 on the basis of place of origin” and he therefore refused that claim.
He also asserted that there was no evidence that GECOM had any control over the process governing broadcast applications nor was there evidence that it discriminated against the Region 10 residents on the basis of their place of origin for the purpose of the elections and he therefore dismissed the entire motion against GECOM.
