Proposed Broadcast Bill in violation of Constitution – Nandlall

Concerns continue to mount about the Broadcast (Amendment) Bill, and former Attorney General Anil Nandlall is contending that it has not gone unnoticed that the proposed amendments fly in the face of constitutional provisions.

He notes that the bill contravenes Article 146 (1) of the Constitution of Guyana,

Former Attorney General Anil Nandlall

and has said the proposed amendment — which allows for the state to order broadcasters to carry public service announcements (PSA) — infringes on the basic constitutional right to receive and communicate ideas and information without interference.

“A freedom to publish includes a freedom NOT to publish,” Nandlall said, when asked about the amendments. “You can’t mandate programming, (but) this bill mandates an hour of Government programming. And every individual, once it’s private property, has a right to say no. (Now) that right is being lost.”

Article 146, (1) of the constitution states: “Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression; that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference, and freedom from interference with his correspondence.”

The former Attorney General also zeroed in on Article 142 of the Constitution, which guarantees that the private property of individuals cannot be acquired, except under the authority of the law. That was later amended to provide for compensation to be paid to the owner of the property.

“They must act under the law, and the law must provide for adequate and prompt

Prime Minister and Minister of Information, Moses Nagamootoo

compensation at the time when they are taking the property away. This (broadcast amendment) law doesn’t provide for that; so clearly there is a violation of Article 142 of the Constitution,” he explained.

Nandlall noted that television and radio stations are in the business of selling air time, “and when a Government attempts to mandate them to publish, free of cost, Government programmes for one hour per day, seven days per week, that amounts to 28 hours per month. That is almost two days of prime broadcast time.”

He noted that this all amounts to a significant loss of revenue for the broadcaster, and he said it is a violation of the broadcaster’s proprietary rights.

He pointed out that even if operators re-apply within 30 days of the act, as specified in the amendments, there are no guarantees that “they would receive the same licence they previously held; or, in fact, if they would receive any licence at all.”

The Bill

Part two of the bill sets out that broadcast agencies would be mandated to broadcast public service programmes for a total of up to one hour daily. Broadcast agencies will be airing these public service programmes free of cost and as requested by the Government between 6:00hrs and 22:00hrs.

The bill also states that the GNBA reserves the right to direct a broadcasting agency to broadcast emergency notices or disaster warnings for any length of time, and regularly during peak or prime advertising time periods, depending on the nature of the emergency and having regard to public safety.

A broadcaster will have the right to file a complaint with the GNBA within 24 hours of being asked to broadcast a programme free of cost if, in the agency’s judgment, it is not considered a public service broadcast programme.

But there is a warning for broadcasters daring to oppose the legislation: the bill states that any broadcaster the GNBA finds to have “arbitrarily refused” to broadcast a public service broadcast programme without lodging a complaint has committed an offence.

The Act also mandates that any licensed entity carrying out broadcast services immediately before the Act went into effect will have no choice but to reapply within thirty days for a licence in accordance with the amended law. Failing to reapply means a cessation of service.

On the other hand, failing to cease operations if not granted a new licence by the GNBA will, on summary conviction, earn that broadcaster a fine of $1M and imprisonment of one year. In addition, all machinery and equipment used for broadcasting by the entity can be seized.

Since its passage, broadcasters have already come out in opposition to the new proposed measures.

Private broadcast companies have since come out in criticism of the Government over the proposed bill, and have asked for deferral of its debate and passage. The companies have since written to Prime Minister Moses Nagamootoo, requesting a meeting to discuss the bill.