Sunday, October 18, 2009


Kaieteur News Peeping Tom column, Sunday 18 October 2009 - "JUSTICE CHANG IS THE ONE WHO MADE HISTORY!" -

The headlines in the Kaieteur News of Friday read: “Govt. radio monopoly unlawful”. The first line of the story reads: “Chancellor of the Judiciary, Justice Carl Singh, yesterday made a historic ruling.”
There was nothing historic about the ruling by Justice Singh. The history was made earlier this year by Chief Justice, Ian Chang.
The recent decision by the Court of Appeal in relation to the application by VCT for a radio license rests on the very principles enunciated in Justice’s Chang’s landmark ruling earlier this year in relation to an application for a television transmitting license.
In that ruling, Justice Chang noted that a delay in responding to an application by an applicant constituted an infringement of that applicant’s right to freedom of expression. He also held that no one had an absolute right to a broadcast license. These were the very principles around which Justice Singh’s decision revolved. In fact, it would have been difficult for the Justice Singh et al to have deviated from the precedents set by Justice Chang. The landmark ruling was therefore not the one involving VCT’s application for a radio license; the history was made by Justice Chang.
In his ruling, Justice Chang ordered that the application for a television license be considered. When that ruling was made public, the President was asked about it at one of his press conferences. He indicated that the government would appeal the decision.
How interesting that now that an identical decision has been made by the Court of Appeal, one which also orders the NFMU to respond to an application for a license, the government is now claiming that the ruling is not inconsistent with its policy of liberalizing the radio monopoly.
How is it that Justice Chang’s decision was challengeable but this recent ruling is being deemed as not being inconsistent with government’s policy? Is it because VCT is now under new ownership? Has the change in ownership facilitated a change in policy, in the same way as the emergence of the Guyana Times has caused a seeming change in official advertizing policy?
Unless the government emerges with a fair system for the allocation of licenses for radio and television, there will be other challenges to government’s broadcasting policy in the same way as there have been challenges in Trinidad over the process of granting broadcast licenses. While the recent ruling called on the NFMU to deal with the application by VCT, it did not set out the basis upon which a license should be granted. It rightly did not do so because this decision is the province of the government.
However, the government must not assume that it has the authority to grant permits to whomever it pleases in the absence of a fair system of apportioning licenses. The need for an efficient, objective and non-discriminatory system of granting licenses was emphasized by the Privy Council decision in Central Broadcasting Services Limited and Sanatan Dharma Sabha of Trinidad and Tobago versus Attorney General of Trinidad and Tobago (2005). In that decision, the Law Lords noted that when it comes to government controlled licensing process, the government’s legislative and constitutional role is to “ensure the efficient, objective and non discriminatory handling of license applications, securing the speedy granting of licences where appropriate and thereby also securing the constitutional right of freedom of expression.”
The government of Guyana should therefore distance itself of any notions, if any such notions exist, that it can arbitrarily and capriciously decide who should be granted radio licenses. Even in the absence of a mandatory order from the Courts, it has an obligation to speedily consider all applications for television and radio licenses.
To authenticate that it will not act in an arbitrary manner- and thus find itself being confronted by a series of injunctions crippling its authority to grant future licenses- the government needs to develop transparent criteria which will form the basis for the granting of radio and television broadcast licenses since it will be forced by the Courts to show justifiable reasons for disallowing an application.
The government should heed the suggestion made some time ago in this column in which it was argued that the telecommunication spectrum should be treated as a valuable economic resource and thus should not be handed out willy-nilly for a morsel.
A system of auctioning of radio and television broadcasting rights should be enforced since this will guard against political patronage while at the same time obtaining the best value for the use of our airwaves.
This may dampen the enthusiasm of friends of the government who may see in this recent decision of the Courts, an opportunity to spread their wings, but it will safeguard a fundamental right without surrendering the demand for a fair price for the use of a valuable economic resource.

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