The Guyana National Broadcasting Authority (GNBA) on Thursday said that PPP-run Freedom Radio 91.1FM and PPP-aligned Multi Technology Vision Inc. (MTV) 14/65 were fined for breaching the Broadcasting Act after being warned.
This is according to Chairman of GNBA’s Board of Directors Leslie Sobers, who at a press conference also refuted allegations by Opposition Leader Bharat Jagdeo that the GNBA was influenced by a political agenda.
The GNBA “has not and does not intend to target any broadcaster who is sympathetic to the cause of the PPP or advocates that party’s political position,” Sobers said, while explaining that the fines imposed were the result of persistent breaches of the Broadcasting Act.
Noting that the action has been challenged in court as, among other things, a breach of the entities’ freedom of speech, Sobers told the media that while Article 146 (1) proscribes the infringement of one’s freedom of expression without his consent, Article 146 (2) demonstrates that the right is not unlimited, being circumscribed by other considerations, including public order. He noted that Article 146 (2) (a) in particular, which provides that laws reasonably required for the protection of the reputations, rights and freedoms of other persons are reflected in the Broadcasting Act, and enforced by the Authority.
Sobers said that sections 19 and 32 of the Act collectively establish standards and conduct which the Authority enforces. Section 19 requires broadcasters to contribute to fostering national unity and building a harmonious society, while avoiding incitement of violence, or ethnic, or cultural hostility. Section 32 requires broadcasters to air programmes which are fair and balanced in content and show a respect for truth, while always ensuring that opposing views are not misrepresented.
Freedom Radio and MTV were both sanctioned because they violated Section 32 in particular, Sobers said.
In fact, he said, the GNBA’s monitoring unit reported that MTV committed a total of 27 infractions between January 2019 and September 2019, while Freedom Radio committed a total of 26 infractions for the same period. He said that prior to the imposition of the fine, both broadcasters were called in and encouraged to refrain. It was only after the entities continued to breach the Act that they were fined, Sobers said.
He said that in light of the high number of infractions, the Board of Directors has started to examine when and in what manner they will engage in suspensions and revocation of licences.
In an effort to demonstrate that the action was not prejudicial, he shared that HBTV Channel 9 and National Television Network (NTN) have been fined, while National Communications Network (NCN) and Keystone (Benschop Radio) were warned.
Properly constituted
Meanwhile, Shadow Legal Affairs Minister Anil Nandlall, has challenged the fines in court by arguing that the Board of Directors, which was appointed by the Prime Minister for the period lasting February 1, 2017 to January 31, 2019, expired earlier this year, so that the Hearing Committee, which was appointed under it, and any actions or decisions it takes, are legally invalid.
Nandlall further argues that the Guidelines for Broadcasters produced the GNBA, section 20 of which is said to have been breached by MTV and Freedom Radio, does not exist in law as it was not gazetted.
While the Official Gazette on February 16th, 2017 does give the tenure of the Directors to be “for a period of two (2) years with effect from February 1, 2017 to January 31, 2019,” section 5 of the Act states that a member of the Board of Directors shall hold office for three years.
If the Act supersedes the Gazette, this would mean that the Board of Directors, by law, are entitled to remain in office until January 31, 2020. Sobers could not address this question as the issue is currently before the court.
However, even if the Act supersedes the gazetted government notice, the validity of the Board, and the Hearing Committee by extension is still in question. This due to the fact while Section 4 (2) of the Act vests power in the President only to appoint the members of the Board, the Board was actually appointed by the Prime Minister.
When this point was raised to Sobers, he disagreed that it was an issue, countering that the President may delegate powers to his ministers and suggested that this perhaps is one such case. However, a general principle of administrative law is that a delegate may not delegate to another person a power that has been delegated to him (delegatus non potest delegare).
In these circumstances, the principle would require that President David Granger be the one to exercise the power specifically delegated to him by Parliament. Article 101 (2) provides that the Prime Minister is the Principal Assistant to the President in the discharge of his functions, but whether this provisions constitutes permission to delegate will have to be determined by a court.
In any event, when contacted, Nandlall told Stabroek News that he believes the appointment by the Prime Minister constitutes improper delegation, rendering the Board, and all actions and decisions it has taken void from its inception.
Regarding the guidelines, Sobers clarified that the MTV and Freedom Radio were not fined for their breach of the guidelines. He said that the guidelines are merely a guide to assist entities with their compliance with the Act, and to point out some things the Authority will consider in determining whether the Act was breached.
