…AG says amendments to Broadcasting Act constitutional

ATTORNEY General and Minister of Legal Affairs, Basil Williams SC has argued that there could be no proprietary interest in a licence which is a mere permit that could be revoked or suspended at any time by the licensor. He has maintained that the amendments to the 2011 Broadcasting Act are perfectly legal and constitutional.

Mr Williams made these arguments during the recent debate in the National Assembly, pointing out that the Opposition is being hypocritical with its objections, as most of the provisions in the amendments were already in the principal act that was sponsored by the People’s Progressive Party.

Opposition spokespersons as well as some broadcasters and the Private Sector Commission have come out criticising the bill and urged President David Granger not to assent to it.
Williams clarified that a proprietary interest signifies ownership of property and there could be no ownership in someone who is a licensee. “You cannot get ownership of a broadcast licence. It means then that licence to broadcast is not property that could attract the protective provisions of Article 142,” Williams argued.

The full presentation of the Attorney General is as follows:
I rise and take the opportunity to indicate up front that this Broadcasting (Amendment) Bill 2017 has my total support and I urge a swift passage of this Bill through this honourable House, tonight. We heard, earlier, two presentations on this side of the House, which, in my humble opinion, has sealed the issue this evening. But for the fact that there is only one lingering element left, I, too, would have asked for the question to be put. But we have to deal with the allegations of unconstitutionality, so my task would be to show that these amendments are foundational on substrata that are fully sounded in law.

Therefore, perhaps I can preamble a bit because the genesis of this issue was touched on by the Hon. Member, Ms. Teixeira, and the Hon. Member, Ms. Catherine Hughes, also gave us some vivid insights into the discrimination which attended the awarding of radio and television broadcast licences.
The Bill before this Honourable House is intended to create a level playing field and to put an end to this discrimination in this sector. I recall the targeting of certain television stations that were not viewed favourably by the last Government.

I recall seeing Mark Benschop, for example, on Channel 9, the late Ronald Waddell on Channel 9, and the prosecution of the owners of Channel 9. I think the Hon. Member, Lt. Col. (Ret’d) Harmon, was a member of the Board, and we had to deal with those issues in terms of going to court, et cetera. I am quite versed with the practices of that era. We would want that to be called the past era so that we would usher in, in this new era, the element of fairness in this era of our patrimony.

We were regaled by the Hon. Member, Bishop Juan Edghill that we were breaching the freedom of expression and the protection of property, both guaranteed in our Constitution. He had never named any provisions but he continued and said that these amendments contravened certain rights and that they also contravene international treaties that we might have signed on to. The Honourable Member, Ms. Teixeira, also was in the same vein, but she ventured to indicate that Article 146 was a relevant Article for freedom of expression. The Hon. Member Teixeira also alluded to Article 146 (2); she read a bit of it and said that those provisions also are designed to protect those rights that we are allegedly purported to have breached in this Bill.

FALLACIOUS
I respectfully submit that those contentions are certainly fallacious. To the uninitiated, one would stop at the Article that states that freedom of expression is guaranteed, et cetera. They might want to believe that that is an absolute right. There are no absolute rights because we all live in society. Those said provisions make provisions for exceptions to the guarantee. So when one has recourse to Article 146, the right is established in Article 146 (1) and, of course, it speaks to the freedom of expression, that is to say the freedom without interference; freedom to receive ideas and information without interference and freedom from interference from his or her correspondence. That is the entitlement of every Guyanese.

However, Article 146, in paragraph (2), contains expressed exceptions to this guarantee. As the Hon. Member, Ms. Teixeira, had read, it states: “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question makes provision- (a) That is reasonably required in the interests of defence, public safety, public order, public morality or public health; (b) … regulating the technical operation of telephony, telegraphy, pots, wireless broadcasting or television, or ensure fairness and balance in the dissemination of information to the public … ”

In common parlance, it means that this is okay and acceptable and it does not infringe the guarantee of freedom of expression.
This is an amendment to a Principal Act. As it was indicated earlier by the Hon. Prime Minister, one could have brought regulations, but we have come by way of an amendment Act. Therefore, what is in the Principal Act is still the determinant factor in this matter. The Act in question was made in 2011 by the Hon. Members on that side when they were in Government. That Act established all these things that are being claimed to be unconstitutional by the Members as they sit on the other side of this House.

For example, I contend that this Act is not inconsistent with, or in contravention of, Article 146. It states: “It created the Guyana National Broadcasting Authority and gave it power to regulate, supervise and develop the national broadcasting system, licensing of broadcasting agencies and encouraging the production and broadcasting of TV and radio programmes into alia.”
It fits right in the exception of regulating the technical administration. More specifically, if one looks at section 37 of that Act, it states: “The minister responsible for broadcasting, where it appears to be necessary or expedient, may at any time by notice to the Authority direct licensees specified in the notice to broadcast such announcements as are so specified, and Authority and licensees shall comply with the notice.”

This is not our Act. This is an Act passed by the members on the other side of the House when they were in Government. They had empowered the minister to make provision for the same thing, that is, the amendment that we are proposing tonight for the carriage of public broadcast for an hour. It is under this provision and that is why I said a regulation could have been made under section 37 (1). But it is under this provision that we have the cue. It was in ‘2011. I do not know if they were the lawyers there at the time.

Nevertheless, made under 37 ‘(1) is this provision that you find now in the Broadcasting v (Amendment) Bill. It states that public service broadcast means: “The broadcast of a programme produced for the purpose of informing and educating the public and promoting policies and activities of the Government that benefit the public as a whole.”

WHAT’S THE CONTENTION?
This Amendment Bill is here because it is empowered by Section 37 (1) of the principal Act passed by the last Government. Therefore, one has to wonder what the contention really is. One will have to query with the bona fides of the Hon. Members as they make their clarion call. Mr. Speaker: Hon. Member, with “query with the bona fides”, I think we are on the edge.

One will have to wonder why such a contention would be coming from the members on the other side of the House. How could one pass legislation, and, when one goes out of power, turn around to say that the legislation is unconstitutional? How do you accept that these are genuine and honest contentions? That is the point that we wish to make. Another instance, for example is: in the amendment, it was foreshadowed in the Principal Act, this Section 20 (1), which provides … The Hon. Member, Mr. Juan Edghill, said that the principal Act speaks about the licensees, the persons who are carrying on businesses immediately before the coming into effect of the Act, were to apply for continuation. I am saying that that is not so and that they had a reasonable expectation that they would be continued. When one reads Section 20 of the principal Act, it states: ”
(1) Every person carrying out an authorised broadcasting service immediately before the appointed date shall, within 30 days from that date, make an application to the Authority for a licence for the continuation of the broadcasting service and send a copy of such application to the National Frequency Management Unit for its successors.
(2) Where a person referred to in subsection
(1) fails to make an application for a licence under that subsection within the time specified therein, or where that application for a licence made by him is not granted by the Authority he shall forthwith cease to carry on the broadcasting service.”

NO GUARANTEE
It means that, in the principal Act, when they had to apply, there was no guarantee that they would have their licences renewed or continued. It states here that, if the application for the licence made by him is not granted … It recognises, in the principal Act, in 2011, when they were made [inaudible] carrying on the operations of the television stations, they had to apply within 30 days immediately before the Act came into effect. There are no guarantees of renewal, as was contended by the Hon. Member. The section clearly states that they could fail not to get a licence.

When you come to clause 9 of our Bill, it states: “Every person carrying on a broadcasting service immediately before the commencement of this Act for which a licence had been previously issued shall apply within thirty days of the commencement of this Act for licence in accordance with the provisions of the Principal Act as amended by this Act for the continuation of the broadcasting service.”

The difference between clause 9 of our Bill and the Section 20 (1) of the principal Act is that this was made into two subsections which added not only those who were licensed, but those who were carrying on television stations without a licence. That is what this Amendment Bill has added. When the Hon. Member, Bishop Edghill, contended that 30 days to comply is outrageous, how could we take seriously such a contention?

“Outrageous” was the language used. In 2011, those who carried on the business with licence had to comply within 30 days. If it were not outrageous then, how is it outrageous now? We have not changed it; it is the same 30 days. What is different between then and now? It is clear that the intention would have been to try to regularise the operation of television or broadcasting in Guyana in 2011. It is no different now. If persons who are authorised had to apply or reapply, what is wrong when they are being asked to apply, in like manner, for 30 days to the authorities to decide whether their licence would be continued? It is the same thing.

Mr. Speaker, I am respectfully submitting that the contention fails miserably. When you look at the 2011 Act passed by the last Government, it had guidelines and conditions that were imposed on licensees. They were subjected to certain impositions and conditions. For example – the Hon. Member, Mr. Greenidge, alluded to it – they actually had a provision there talking about what owners of television stations must do when elections are afoot in Guyana. For example, it states this in Section 32 of the principal Act: “This is a guideline to broadcasters, that at election time they were to agree with political parties in consultation with Guyana Elections Commission (GECOM) to afford such parties airtime on their stations.”

AIRTIME
The last Government said whoever owns the television station when election came around they were bound to give airtime to political parties contesting those elections. That was an imposition. Why was that not unconstitutional? What is the difference between that directive and the one to have the public service broadcasting within an hour as requested? Now, what is requested is in the breakdown in the Schedule. If you look at the First Schedule Part 2, clause 8 (5):
“The sixty minutes referred to in subparagraph (1) (a) shall include time allotted for any-(a) address to the Nation by the President;
(b) emergency notice or disaster warning issued by the Civil Defence Commission, the Guyana Police Force, Guyana Fire Service … ” All of these fall clearly within the exception in the Constitution, in article 146 (2), for public safety, defence and for public health. All of these things fall clearly within those exceptions. As I said, there is no case really for the type of attack and attacks that have been made on the provision of this Bill, that it assaults the freedom of expression, when in fact there were progenitors of the parent of this baby that we are about to pass and give life in the honourable House.

As I said, my task is simply to show that this Bill is predicated on sound law in Guyana. Before I wrap up, I want to say this: There was a contention that an owner has a right that he could resell the property at any time. In other words, they were arguing if you are a licensee you have a proprietary interest. I saw that argument. Let me first start with section 27 of the Act because…Section 27 states: “A licence granted to a person shall not be transferred to any other person without the prior written consent of the Authority.” This sounds as if you own property. You have a licence to carryon business for a year and you suddenly decide you have to proprietary interest. Let us examine what a proprietary interest is. If you look at Black’s Law Dictionary, Mr. Speaker, revised Fourth Edition, at page 1384, it defines proprietary rights as: “Those rights which an owner of property has by virtue of his ownership.”

How could a licensee be described as an owner? Let us go further. Let us go to Burroughs and Another versus Rampargat Katwaroo (1985) 40 WIR 287 at page 301, and it states this about the licence: “The grant of a licence certificate or permit in circumstances of the kind is the privilege, not a right.”
We all know as first principle, when we were in law school, that any lawyer worth his salt, even the lawyer who comes last in law school, we would call him a lawyer. You would know the distinction between a lease and licence, first up. A lease is a permission that could be terminated at any time. The lease was there because of this mercurial creature they called exclusive possession. I am warming up.

I am saying to you, and I am saying this without any fear of contradiction, that they cannot be any proprietary right in a licence to operate a television station when you are given a year to operate a radio or television station. There is no proprietary interest. If there is no proprietary interest, meaning that you are not the owner of a property, then you cannot claim protection under article 142 of the Constitution which guarantees the right to the protection of property.

All of these claims were just what they were. They were designed to inflame the passion of the Guyanese people into believing the A Partnership for National Unity + Alliance For Change (APNU+AFC) Government is an unruly Government which does not observe the rule of law. I must say this, Mr. Speaker, that this Government has never brought to this honourable House any Bill that was unconstitutional and this is a Government that upholds the rule of law. We campaigned to restore the rule of law which had fallen into desuetude over the last 23 years or before we entered Government, and we are still on that track.
The first act we did was to restore the independence of the judiciary.

I am saying, with the respect, that no serious offence should be paid to the aspiration of the members on the other side, that this is a threat to press freedom. We are going to take seriously any contentions that are solidly made and that are made in a way where you can see that, yes, there is a clear path here that we should engage in. You cannot go on the frolic of your own when you are the ones who created this Act and yet you have turned around, when you have left office, to say that the Act is bad because the Act is now in our hands.

Mr. Speaker, overwhelmingly, I support, without let or hindrance, the Hon. Prime Minister and his intention to clean up what happened during those 23 years and to effect a level playing field in this sector, in this country of ours. I rest my case.