Chief Justice rules against Sharma in licence suspension case

The High Court yesterday ruled that the Advisory Committee on Broadcasting (ACB) was not obligated to explain its decision to advise then President Bharrat Jagdeo that the station license be suspended and further that it could rule on the decision of the President to so do.
Channel Six owner Chandra Narine Sharma had moved to the court to get a ruling that the ACB was not lawfully constituted as required by regulation 23B (2) of the Wireless Telegraphy Regulations.
Therefore, Sharma was claiming that the ACB lacked legal authority and its decisions were unfair, unreasonable, unlawful, irrational, procedurally improper, in breach of natural justice, ultra vires, null, void and of no legal effect.
The television station was seeking to avoid a sanction imposed by the President, as advised by the ACB, after the station aired – on May 4, 2011 – a commentary by Anthony Vieira which made some damning allegations that Chairman of the Ethnic Relations Commission, Bishop Juan Edghill, found disturbing.
The television owner had apologised, but Edghill, nevertheless, filed a motion against both Sharma and Vieira seeking more than $50M in damages.
Chief Justice Ian Chang ruled that while there is no general rule that an administrative body should give reasons for its decisions, where it would be unfair not to do so, reasons must be given.
The question arose as to whether it was unfair for the ACB not to have given reasons for its findings in the circumstances of the Sharma case.
Chang ruled that since the applicants were not denying but rather admitting the infringements and were claiming that the broadcast was made through human error and was not intentional, the failure of the ACB to give reasons for its findings was not unfair or required by the demands of natural justice – the principles of which are not inflexible or engraved in tablets of stone.
Their application depends on the particular circumstances of the case, the Chief Justice stated.
The applicants further contended that the penalty of a four-month suspension of the broadcasting licence was unlawful and in violation of the applicants’ freedom of expression guaranteed under Article 146 and was, in any event, disproportionate.
However, Chang ruled that the penalty was imposed not by the ACB but by the President, acting in his capacity as the Minister of Information, and no prerogative writ proceeding can be issued against the President who is the Head of State.
“The court cannot in these prerogative proceedings issue an order or rule nisi of any prerogative writs against the President – let alone an absolute prerogative writ.
“No doubt, it would be open to a court to set aside an unlawful act or decision of the President in other proceedings even though the President himself cannot be subject to the curial processes.
“But this cannot be done in prerogative writ proceedings,” the Chief Justice ruled.
In the circumstances, Chang discharged the order he had made on October 27, 2011.
In that order, Chang asked for the ACB to show cause why a Writ or Order of Certiorari should not be issued to bring up to the Honourable Court and quash first, its findings that the applicants were in breach of Regulation 23A of the Wireless Telegraphy Amendment.
Then President Jagdeo said the matter was beyond Sharma and Edghill. The President said that he had read the transcript extensively, and both Sharma and his wife had accepted that “people are responsible for their broadcast.”
“The contents are reprehensible to our constitution,” Jagdeo said of Vieira’s commentary. But not only was it against the constitution of Guyana, the President said the contents of the programme infringed significantly on the conditions of the licence under which Sharma operates.
Jagdeo related that in the programme, Vieira claimed that Swami Akshrandan had told the President to take a Christian channel off the air, “implying that there was some kind of Hindu conspiracy.”
Jagdeo had said that he never had any such discussion with the Hindu leader, and therefore the statement by Vieira was “offensive” and designed to create discord among people of different religions, which is forbidden in the laws of Guyana.
Jagdeo said that the Christian channel (Channel 72) was illegally taken over by Vieira, and this led to the cancellation of the licence.
In addition, in the commentary, Jagdeo related that Vieira claims that there was a conflict between Pentecostals and Catholics, and that Bishop Edghill was not doing enough to safeguard Catholics.
Again, Jagdeo said this statement sought to create discord among denominations in the Christian community and was therefore “reprehensible” to the constitution.
“This is a serious matter and I am giving it consideration,” Jagdeo declared.
Sharma had been sanctioned before for comments aired on a live programme, but in this case, Jagdeo said the television owner cannot make that claim since Vieira’s comments were made during a taped programme.