Winning against State discrimination

On Wednesday January 26, 2005 the Court of Appeal of the Republic of Trinidad and Tobago made a decision that has to be considered historic. This decision since its articulation has also sent a strong message to the Hindu and Indian community about both the Judiciary and the governance of the nation. The Hindu community received a psychological boost when the Court of Appeal supported the decision of Justice Carlton Best who had ruled that the State discriminated against the Sanatan Dharma Maha Sabha by bypassing it for a radio licence. The Hindu community has increasingly developed the perception that there are increasing levels of discrimination against them by the State and this ruling further validates that point.

This ruling importantly highlights that for the moment the Judiciary is not being manipulated by the State. It is not an understatement to declare that at least half of Trinidad and Tobago, if not more, is waiting to see what the Government would decide on the matter for a radio licence for the Maha Sabha. Indeed if one were to follow the judgment of Justice Hamel-Smith the Maha Sabha would be awarded a radio licence shortly. Justice Hamel-Smith judgment states, “I would think that Cabinet is to be trusted to act, responsibly and fairly in determining whether or not a licence should be granted to the appellants. There is nothing to suggest that there is a risk that the application would not be successful.” Justice Hamel-Smith’s was also unambiguous that this matter was one where the Maha Sabha was openly discriminated against. 

Justice Hamel-Smith observes, “I am prepared to accept, that there was a strong case of unequal treatment presented by the appellants, a case which had to be answered by the minister. “I also agree with Mendonca JA that the explanation offered fell far short of the mark. “The clear result is that there has been an infringement of the appellants’ right to equal treatment under s. 4(d). The right would be of little value if the official responsible for the action could push aside the claim by an explanation that meant very little, given the constitutional sanctioning of the right in the first place.” The minister, in his first affidavit sworn to in August 2003, placed much weight on his unawareness of other pending applications.  Apart from the Division’s letter that made it clear that the list sent to him was an unedited draft and that it did not contain all the pending applications, there was supposed to have been in force a suspension of recommending licences, a suspension the minister seemed not prepared to comment upon.

Justice Best also addressed this issue of discrimination in the High Court. In his judgment, Justice Best clearly stated “It has not been denied that the applicant had submitted two applications for licences on 1st December 1999 and 10th August 2000 and that by 15th March 2001 the Relevant Authority had approved the said applications. Further, from the said date of approval to the date of filing of the Notice of Motion herein on 16th August 2002, save for an acknowledgement from the Relevant Authority, there had been no response from the Cabinet with respect to the grant of the licences. In the opinion of this Court, this inaction on the part of the Cabinet constitutes a constructive refusal of the licences and is a prima facie case of unequal treatment. The lack of staff and inefficiency in the Public Service; change of venue, political directorate and policy, in the view of this court, should not be allowed to stand as justification for the differential treatment meted out to the Applicants herein.”

The unanimous decision, by Justices of Appeal Roger Hamel-Smith, Margot Warner and Allan Mendonca that directed the Maha Sabha’s application placed before Cabinet within 28 days for its consideration already is being assailed by some.  In a recent radio interview it was stated that the court basically did not know what it was saying as the newly established Telecommunications Authority and not Cabinet was the body to award radio licences. This can only suggest that already the stage is being established to once again deny the Maha Sabha of a legitimate voice within the national media. Indeed the hesitancy of the authority to make an immediate and definitive decision on the issue is instructive. Instead Attorney General John Jeremie said Government was reviewing the judgment. “But (we) remain committed to the rule of law and deeply respectful of the decision of the courts.”

There are two Christian-formatted radio stations operating full time in Trinidad and Tobago and all English formatted radio stations have some degree of Christian programming. There is absolutely no objection to this as the Christian community forms an important and significant part of our nation. The Hindu community however also has needs to be met along similar lines. The question remains if the honourable thing would be done and the Maha Sabha would be awarded a radio licence.  This issue really also speaks to the greater concept of what constitutes “national” as does the Trinity Cross issue. If there is a segment of the population that is not included in the definition of national due to political, religious, racial, geographic and other such reasons the society will be forever burdened with these divisions.