Justice William Ramlal yesterday dismissed CN Sharma’s two-year-old mo-tion challenging the suspension of his television licence, finding among other things that President Bharrat Jagdeo was constitutionally bound to deal with the issue.
Following the decision, which was delivered almost two years after the four-month suspension that was handed to Sharma in April 2008 expired, Ramlal also awarded $150,000 costs.
In his lengthy, hand-written decision, Ramlal indicated that the motion, which was originally filed by attorney Nigel Hughes and a battery of lawyers and later included attorney Khemraj Ramjattan, was ill-conceived. The judge apologized for the sloth with which the matter was concluded but pointed out that time was a problem for him. He said the application made by Sharma did not establish that President Jagdeo violated his constitutional right to freedom of expression and his entitlement to earn.
Sharma’s television station, CNS 6, was taken off air in April 2008 for four months for infringing the terms of its broadcast licence after a caller to its “Voice of the People” programme threatened the life of the President. The programme with the threat had then been re-broadcast on three separate occasions. The station returned to the air in August the same year with a 30-second delay for callers on the live call-in programmes.
Following the suspension of his licence by the President, Sharma moved to the court and requested a conservatory order restraining Jagdeo, who is the minister with responsibility for telecommunications, his servants and or agents from suspending and or continuing to suspend his licence until the hearing and determination of the motion.
He also sought a conservatory order suspending the suspension of his licence until the matter was determined. Additionally, the television station owner requested an order nisi for Jagdeo to show cause why his decision to sit, hear and determine the complaint in which the subject of the complaint involved a threat made against him should not be quashed as a decision which is ultra vires, in breach of the rules of natural justice and fairness and null and void.
Abuse
At the end of his ruling, Ramlal said the application by Sharma was an abuse of the court’s process. The judge noted that initially there was no application for costs by Sharma in his original motion and his lawyers only filed for an amendment to include this after Senior Counsel Doodnauth Singh, who had argued the case for the state, responded to the original application. The judge said he did not grant the amendment as it would have been prejudicial to the case.
He indicated that Sharma’s lawyers, none of whom, except a young lawyer holding for Ramjattan, were in court, had argued among other things that the Advisory Commis-sion Board (ACB) was not properly constituted since its membership fell below the required membership quota of three. The chairman at the time was the only member of the board.
Zeroing on the issue raised by Sharma’s lawyers that the suspension infringed his constitutional right to freedom of expression and entitlement to earn, Ramlal said that if anyone infringes rights of others then that person loses his entitlement under the Constitution. He said the broadcasting of offensive material infringed on the rights of others.
According to the judge, no one can say the airing of the information where someone threatened the President did not among to incitement and added that both the caller and Sharma lost their entitlement to the fundamental right of freedom of expression. “Freedom of expression cannot be used to commit an unlawful or criminal act,” the judge pointed out.
Further, he said one cannot argue that a threat to kill the President does not fall against public morality and as such the suspension of Sharma’s licence by President Jagdeo could not have been in breach of Article 126 of the Constitution, as was argued by the lawyers.
Dealing with whether the decision by President Jagdeo to address the issue was constitutionally correct, Ramlal noted that before the President took the matter into his own hands he had appointed Head of the Presidential Secretariat Dr Roger Luncheon deal with it but Sharma and his lawyers had moved to the court to block this.
On April 11, 2008 a meeting between Sharma and Luncheon was set up to address the on-air violations but it was stalled following the move to the court.
Acting Chief Justice Ian Chang had granted an order shortly before the meeting which asked Luncheon to show cause why he should not be prohibited from hearing the alleged infringement committed by Sharma. In the application, Sharma challenged Luncheon being delegated the authority to write to him on the matter. He had further said that Luncheon had no power to summon him to a meeting to determine whether his licence should be cancelled or suspended. It was following the High Court move that President Jagdeo, who is the minister designated under the Post and Telegraph Act, Chapter 47:01, wrote to Sharma and invited him to a meeting which later resulted in him being suspended.
Ramlal yesterday said when he had asked Sharma’s lawyers why they moved to block the meeting with Luncheon they had said that Luncheon was an advisor to the president and was appointed by the President and as such would have been prejudicial in his dealing with the issue.
However, the judge pointed out that the Post and Telegraph Act gives the President the right to assign a minister to hear any matter that falls under the act and all ministers are advisors to the President and are in fact appointed by him.
The move to legally block Luncheon, the judge said, left the president with no alternative than to deal with the matter which he is constitutionally bound to do.
In a letter addressed to Sharma and dispatched a few hours after the April 2008 meeting at his office to determine what would happen to the station’s licence, Jagdeo said he found Sharma’s explanation as to why the offending broadcasts continued, even after he recognised that the content of the programme infringed the conditions of his licence, unsatisfactory.
A press release the Office of the President (OP) said Sharma was found to have committed serious infringements of the conditions of the licence by broadcasting on four occasions, including three rebroadcasts, content that advocated the killing of the Head of State and Head of Government.
The OP release had said Jagdeo is the sole authority vested with power to decide whether a licensee has breached the terms and conditions of his licence and/or the provisions of the act or the regulations and whether any sanctions may be imposed, adding that the act provides that the minister may suspend or cancel the licence for such breaches.
It was stated that during the meeting, it was acknowledged by everyone that there was an infringement of the licence since Sharma chastised the caller in the original broadcast but failed to edit the offending statement for a rebroadcast not just after the programme ended but days after.
While Sharma said the rebroadcast was a mistake by a technician. Jagdeo had pointed out that the ultimate responsibility lay with the licensee and the blame should not be laid on a junior staffer.
