Good decision not to revoke radio licences — Pollard
March 15, 2016, http://guyanachronicle.com/goo...io-licences-pollard/
Senior Counsel Brynmor Pollard
AMIDST a fierce debate over the allocation of radio licences, Senior Counsel Brynmor Pollard has said he favours the government’s approach of granting more radio licences rather than revoking those that were handed out contentiously by former President Bharrat Jagdeo back in 2011.Several persons have been pressing the administration, since its coming to office, to revoke the granting by Jagdeo of radio licences mainly to his friends and to cronies of the People’s Progressive Party (PPP). But last week, during the commissioning of a satellite uplink at the National Communications Network, Prime Minister Moses Nagamootoo stated that government was not keen on revoking the radio licences that Jagdeo had granted ahead of the establishment of a Broadcasting Authority.
Prime Minister Moses Nagamootoo
“We could correct that, not by shutting down those who had been wrongly given licences, but by opening the airwaves and allowing the fresh air to touch our broadcasting in Guyana,” he had said.
Saying that any closure must be done by the Broadcast Authority, the Prime Minister had pointed out that he favoured granting more licences for community or national radio stations, and had noted that he had asked the GNBA to approve licences to eligible applicants.
The Prime Minister had gone on to say that some of the persons granted licences under Jagdeo were inexperienced. However, that comment had not find favour with everyone, as Dr David Hinds has urged that if the licences were given out illegally, they should be revoked. Pollard, however, differs, supporting the PM by saying: “This is a wise decision by the Prime Minister, and is a deft step to avoid the pitfalls inherent in cancellation.”
Pollard pointed out that the former President created great controversy when he issued a number of licences to persons perceived as friends and family, or at least were sympathetic to the then ruling party, the PPP/C. he also alluded to the fact that several commentators have urged the summary cancellation of those licences on the grounds of, inter alia, illegality and improper issuance.
“These persons had expressed the view that apparently former President Jagdeo had agreed with former President HD Hoyte not to issue new licences until the advent of a new Broadcast Act and Authority. However, Mr Jagdeo is stated to have breached this undertaking by issuing the licences shortly before the coming into operation of the present Broadcasting Act. This, in the view of these persons, invalidated the licences and rendered them void.
“Persons have also questioned the bona fides of President Jagdeo’s motives in issuing licences almost exclusively to persons well disposed towards him and his party,” the Senior Counsel said.
He said that while these may well be good reasons, in principle, for taking action to terminate these licences, the Prime Minister has correctly resisted the temptation to do so.
“This is the counsel of prudence for two very good reasons. Firstly, former President Jagdeo, at the time he issued the licences, did so in his capacity as the minister responsible for broadcasting and the President of Guyana. Indeed, it was the State of Guyana that issued these licences. Accordingly, from the time of the issue of the licences, the licensees acquired a legitimate expectation that they would be permitted to develop broadcast businesses and to carry on these businesses under the licences.
“Where they have expended moneys in furtherance of this expectation — and a number have apparently expended substantial sums in establishing broadcasting stations –- should the State of Guyana subsequently reconsider its position and decide to withdraw the licences, it would be liable to compensate the former licensees for loss and damage suffered by them due to breach of their legitimate expectation. These sums could be very substantial and may place a great strain on the finances of the Treasury of Guyana,” he said.
Secondly, Pollard noted that even if the motives of the former President were not bona fide, events may have overtaken us, and cancellation on these grounds may no longer be available.
He referred to Section 20 (1) of the Broadcasting Act, 2011, which requires all licensees carrying on broadcasting immediately prior to the coming into operation of the Act to reapply for the issue of new licences. “Apparently, all of the former licensees (including those created by former President Jagdeo) applied for and were issued new licences under the Act. If that is the case, then the initial motives behind their creation and issue are no longer of any legal or other significance. The Authority would therefore have to possess some other good reason to cancel licences which it had itself issued previously. Again, any attempt to do so may well be deemed unlawful by the courts and struck down accordingly,” Pollard said.
He added that, no doubt, all of these considerations had engaged the mind of the Prime Minister at the time he arrived at his decision. “It appears to be a sound decision and the best one he could have made in the present circumstances. If the motivations behind the previous licences were improper, resulting in their holders not being fit and proper persons to be awarded licences, the solution is not to cancel the licences, thereby exposing the state to the possibility of substantial awards of damages; but, instead, to avoid this possibility by simply enlarging the number of licensees. There is no disadvantage to redound to the (Prime) Minister or the state from taking that position,” he said.
