MBC Channel 42/93 is the second broadcaster in Guyana to seek relief in the High Court on claims of constitutional rights’ infringements which it says is enshrined in the 2017 Broadcasting Amendment.
The broadcaster is claiming infringements of equality and freedom of expression among other claims of loss of constitutional rights.
Stephen Fraser of the Chambers of Fraser, Housty and Yearwood, representing the broadcaster on Monday (November 13, 2017), filed a fixed date application naming the Attorney General, Basil Williams, and the Guyana National Broadcasting Authority (GNBA) as respondents.
The hearing in the High Court is set for December 15, 2017.
Meanwhile, a fixed date application to challenge the Broadcasting Amendment (2017) by Freedom House Radio Inc is set for a High Court hearing on November 16, 2017. The broadcasters are separately challenging the 2017 amendment on various constitutional grounds.
Freedom Radio Inc had filed a constitutional challenge in the High Court, over the Administration’s imposition of an ‘onerous’ increase in the annual broadcasting fee and the expropriation of its airwaves during ‘prime time,’ for Government broadcasts.
The separate challenges by the two broadcasters follow significant outcry by local and international press bodies, among others, on fears of erosion of press freedom and other impacts, particularly in terms of legislated demands under public service broadcasting (PSB).
On such international body, Reporters Sans Frontieres (RSF), aka Reporters Without Borders, had stated before the Bill was assented to law that “what is most worrying about the Bill is its process of adoption, which involved no consultations with any broadcasters even though repeated attempts were made to meet with Prime Minister Moses Nagamootoo both leading up to, and during, parliamentary debate…”
Others who voiced their concerns include the International Press Institute, Association of Caribbean Media Workers, Guyana Parliamentary Opposition, the Guyana Private Sector Commission, the Georgetown Chamber of Commerce, and the FITUG, largest amalgamation of trade unions in Guyana.
In its high court action, MBC 93 is contending that unfair competition and expropriation of property rights, among other loss of rights, have been legislated through the Amendment contrary to its constitutional rights.
In its application, MBC 93 noting the contravening of its equality rights, pointed out that “this unfair competition scenario has been exacerbated where the public broadcaster, National Communications Network (NCN) receives a significant subvention from the public purse, and continues to engage in competition with private broadcasters for the commercial market.”
It noted the status of “the state-owned NCN which is not subjected to the same level of interference by the new amendments”, adding, “as such, government’s competition policies supplemented and grounded now in the new laws constitutes an unfair and unreasonable interference with the Applicant’s fundamental right to freedom of expressions as well as its property rights and interests”.
According to the high court action, the legislating of public service broadcasting puts private broadcasters in double jeopardy to face unfair competition and to provide services without compensation, with potential to impact on commitments to commercial clients.
The fixed date application by MBC 93 also noted the potential for the company’s operations to be attempted to be closed by the state in its possible enforcement of the Amendment.
“The high court action also challenges the continuing demand by GNBA for past exorbitant fees (declared unlawful) and the new increased fees with its likely effect of destroying the Applicant and shutting down its operation entirely” said MBC 93.
In the high court challenge, the broadcaster contends that “since 1995 it had sole and exclusive rights to broadcast on the specified channel and spectrum, and as a result of the grant made under the licence, the Applicant obtained a vested right to property and an interest in the spectrum and channel.”
According to MBC 93, this interest and right then automatically fell to be protected by section 142 of the Constitution of Guyana which prescribed that interests and rights in property of whatever nature could not be taken away without adequate compensation.
It noted also that the 2017 Amendment effectively took away its rights in spectrum and channel by “splitting of the National Spectrum into ‘Zones’, and unreasonable and unjustified licence fees also effectively contravened the Applicant’s property and interest rights in the spectrum and channel as guaranteed by section 142 of the Guyana Constitution.”
The Broadcasting Amendment 2017 was passed in the House of Parliament at its August sitting this year despite a number of broadcasters asking for a stay and requesting an audience with the Prime Minister to discuss their concerns over the then proposed amendment.
While the broadcasters were still awaiting word on this letter for an audience, the amendment received presidential assent on September 7, 2017.
According to MBC 93 in a released statement, to date, there has been no response from the Prime Minister to the request for a meeting to discuss broadcasters’ concerns, while noting that existing broadcasters were forced once more to re-apply for their licences or face penalties including criminalisation if they continued to broadcast without re-applying.