A broadcaster’s challenge to the constitutionality of the Broadcasting Act was last month dismissed by acting Chief Justice Ian Chang, who concluded that it was “legally misconceived.”
In dismissing the motion for constitutional redress brought by Jacob Rambarran, the owner of Rambarran Broadcasting Systems Limited (RBSL), Justice Chang rejected the argument that the system for granting licences was unlawful because it is solely controlled by the executive and disregards the National Assembly, through which the people exercise their sovereignty.
Notably, Chang held in his October 24th ruling that “the National Assembly is not a supreme organ of democratic power,” even though it is a component of Parliament. “The President in whom all executive authority resides is a supreme organ of democratic power and also a component of Parliament. The National Assembly, not being a supreme organ or democratic power, cannot exercise democratic power superior to the President or Parliament (of which the President is also a component part),” he found.
Rambarran moved to the High Court in June this year, seeking, among other things, a declaration that the 2011 Broadcasting Act and the Order bringing it into force are ultra vires the Constitution of Guyana; and a further declaration that he and his company are entitled to have a renewal of a broadcasting licence in terms similar to and with the same effect as the licence issued prior to the enforcement of the Act.
Attorneys for Rambarran argued that the Act was brought into law without regard to guiding principles set out in the Constitution and provided for a politically-controlled Board of Authority that is representative of the executive but not the people through the National Assembly. The law was assented to by President Bharrat Jagdeo on September 27th, 2011, just two months before his PPP/C lost the majority in the National Assembly but maintained the presidency under his successor Donald Ramotar. It was argued that when Prime Minister Samuel Hinds made the order to bring the Act into force from August 28th, 2012, he did not at the time enjoy the confidence of the elected National Assembly and was as a result not entitled to exercise such power.
Rambarran, according to Chang’s decision, also deposed that the law was designed to deprive the National Assembly of control over the executive. “He contended that the use of the spectrum for licensed broadcasting can be constitutionally valid only if the system of granting licences is exercised by an independent and autonomous body created or approved by the National Assembly and that the Act was contrived to secure political party control over the spectrum and its use—with potentiality for political partisanship and arbitrary governance,” it noted.
‘Wholly untenable’
In his ruling, Justice Chang said the Act did not confer or purport to confer upon any official or Minister any power to act in a manner which was in violation of the provisions of the Constitution or the law of the land.
He noted that although it was argued that the Act is unconstitutional because it has conferred powers on governmental officials who are part and parcel of a government that does not hold the majority of seats in the National Assembly, it was the National Assembly, of which the opposition holds the majority, which has “given its blessing” to the provisions of the law.
He also observed that the challenge was not brought against the exercise of the statutory power of the National Frequency Management Unit (NFMU) or any of its members or even against a government official exercising the power of appointing the membership of NFMU. Instead, the challenge was made to the power of Parliament itself to confer on a government official the authority to make such appointments. However, he said that the submission that Parliament acted undemocratically in the conferment of the power of appointment on a government official is “wholly untenable.” “One must distinguish between the conferment of power and the exercise of power. The applicants are not challenging the exercise of power as undemocratic but is rather challenging the conferment of power as undemocratic,” he said, while adding that the court is unable to see how the conferment of the power of appointment by Parliament can be said to undemocratic when the process by which Parliament had so acted was “intrinsically democratic.” “The concept of democracy inheres in the conferment of power by an Act of Parliament but not necessary to the exercise of such power under the Act,” he further noted.
With respect to the submission that the Act is in contravention of Rambarran’s freedom of expression, Justice Chang stated the constitutional right not to be hindered in one’s enjoyment of expression is not absolute and is subject, among other things, to restrictions imposed by laws and which are reasonably necessary for regulation. He held that it is clear that a licensing system is a common means of regulating broadcasting and thus legislation providing for such regulation cannot be” assailed” on the ground that it is not reasonably necessary for regulatory purposes.
‘Direct voice of the people’
Although Justice Chang conceded in his ruling that the elected members of the National Assembly are the representatives of the people through whom they exercise their sovereignty, he said it is the Constitution itself which is the direct voice of the people and which members of the National Assembly are not at liberty to contravene.
“The voice of the elected members of the National Assembly is always subject to the Constitution itself which has conferred all executive authority in the President subject to the power of Parliament (not the Assembly) to vest functions in a person or authority, including Ministers of the executive government to whom governmental responsibilities have been assigned under Article 107 of the Constitution,” he wrote.
“In respect of democratic power, the submissions of counsel for the applicants have erroneously elevated the National Assembly above both the Parliament and the President when the National Assembly has not been identified by the Constitution itself as a supreme organ of democratic power (Article 50),” he added, while pointing out that even the Cabinet has been identified in the Constitution as a supreme organ of democratic power.
He also challenged the assumption that because the government holds less than 50% of the seats of the elected members, it does not enjoy the confidence of the National Assembly. Such a presumption, he argued, can only be rebutted by a vote the majority of all the elected members of the National Assembly.
Justice Chang also argued that when a bill is passed by the elected members of the National Assembly, it is passed as part of a process of inclusionary democracy in consonance with Article 13 since all elected members are allowed to deliberate, debate and vote on its passage. Similarly, he said when the President assents to a bill he is also part of the process of inclusionary democracy since he is an elected President.
