Maha Sabha wins radio licence case

In a 19-page judgment delivered in London, the Law Lords ruled in favour of the
Trinidad religious organisation and ordered the Attorney General to pay costs in the High Court, Court of Appeal and the Privy Council.

The Maha Sabha was represented by Dr Fenton Ramsahoye SC and Anand Ramlogan, while Peter Knox and John Almeida appeared for the Attorney General. The Privy Council comprised Lords Hoffmann, Hope, Hutton, Brown, and Mance. Lord Mance delivered the judgment.

The following is the continuation of the judgment.

24. The Court of Appeal held that the transitional provisions of the 2001 Act preserved the power of the President acting on the advice of the Cabinet to grant licences in respect of pending applications, so that the Cabinet might continue to deal with CBSL’s application.

In order to avoid doubt, it added (at paragraph 15) that, since it understood from counsel that the Cabinet had already considered the application (“in compliance with the order of the court” as Mendonca JA said in paragraph 7), it would direct that, if the application had been approved, the Cabinet should so advise the President within the next 28 days, and, if it had been refused, the Cabinet should so advise CBSL giving written reasons for the refusal, again within the next 28 days.

25. On April 21 2005 the appellants were granted conditional leave to appeal to the Board, which was converted into full leave on May 12, 2005. On May 17, 2005 the Permanent Secretary to the Ministry of Public Administration and Information then wrote to CBSL a letter, disclosing a position so remarkable that it is appropriate to set the letter out in full:

“Re: Application dated December 1, 1999 (sic) of Central Broadcasting Services Limited

We refer to the above captioned matter.

Please be advised that Cabinet has considered your application of December 1, 1999, for a broadcasting licence. Your application was made pursuant to section 3(2) of the Wireless and Telegraph Ordinance.

Your application was required to be made in accordance with the conditions stated in the Instructions for filing the Application Form for Broadcast Licences.

Cabinet first considered your application on February 19, 2004 whereupon Cabinet referred the application to the Finance and General Purposes Committee for its detailed consideration and recommendation to Cabinet.

On March 1, 2004, the Finance and General Purposes Committee considered your application and the application was sent back to the Cabinet on March 4 2004.

Cabinet again referred your application to the Finance and General Purposes Committee on March 11, 2004, for further consideration and recommendation.

The Finance and General Purposes Committee considered your application again on June 21, 2004, for recommendation to Cabinet. In formulating its recommendation the Committee referred to the Report on the Review of Applications for FM Radio Broadcasting Licences (hereinafter “the Report”), dated December 19, 2003, which stated that you did not submit detailed financial information as required by law and the Application Form despite separate requests for additional information from you.

Correspondence was issued to all parties with incomplete applications during the period October 6 to October 8, 2003, with a deadline for all outstanding information by October 17, 2003.

Letters were again dispatched to those applicants whose applications were incomplete in the week of November 10, 2003, with November 19, 2003, as the deadline for submission. A final request for information was sent to all applicants with outstanding information with a deadline of December 17, 2003. At that stage, a review of all applicants with complete applications was undertaken.

Your application was incomplete as at the date of the preparation of the Report that is dated December 19, 2003.

Based on the contents of the Report, the Finance and General Purposes Committee recommended on June 21, 2004 to Cabinet that your application should be refused.

On June 24, 2004 Cabinet, on the recommendation of the Finance and General Purposes Committee, refused to grant your application for a broadcasting licence on the grounds stated in the Report, which formed the basis of the recommendations of the Finance and General Purposes Committee.

Cabinet therefore decided not to grant your application because, despite separate requests for additional information from you, you failed to submit detailed financial information in support of your application.

The said information was required to be stated in the Application Form on which all applications were evaluated. The failure to submit this information rendered the application ineligible for approval. Please be guided accordingly.”

26. A number of points follow:

(1) Firstly, a Report on the Review of Applications for FM Radio Broadcasting Licences was prepared on December 19, 2003. It seems quite likely that this was prepared within the Telecommunications Division but no such Report has been disclosed, even to the Board.

Evidently however it stated that CBSL “did not submit detailed financial information as required by law and the Application Form despite separate requests for additional information.”

In this respect, the Board notes that (a) the letter dated May 17, 2005 refers to a letter as having been sent in the week of November 10, 2003 to any applicant whose application was incomplete — a reference which corresponds with the sending of the Minister’s letter dated November 11, 2003 to CBSL; but (b) it goes on to suggest that a final request had been sent to all applicants with outstanding information with a deadline of December 17 2003 — that is not consistent with Miss MacIntyre’s affidavit sworn January 16, 2004, in which no such request is mentioned or exhibited and no such deadline is suggested, and it makes no mention of the appellants’ letters dated November 17, and December 18, 2003, or of the telephone conversation referred to in the latter letter, all attested to by Miss MacIntyre in her affidavit sworn January 16, 2004.

On the contrary it plainly implies that, when Cabinet considered the matter in the first half of 2004, no regard was paid to the latter letter, despite its production by Miss MacIntyre (and although she makes no suggestion that a deadline of December 17, 2003 was given to CBSL).

(2) The letter dated May 17, 2005 discloses that Cabinet considered CBSL’s application in the light of recommendations of its Finance and General Purposes Committee on three occasions shortly after judgment was given by Best J These were on February 19, 2004, on March 11, 2004 and finally on June 24, 2004 when the Cabinet is said to have refused to grant a licence because of CBSL’s failure to submit detailed financial information.

Thus the very allegation which the respondent was refused leave to advance by Best J (a refusal later upheld in the Court of Appeal) became and remains the only basis ever suggested for refusing CBSL a licence.

(3) Until the letter dated May 17, 2005 no step was taken to notify the Cabinet’s refusal of June 24, 2004 to CBSL, to SDMS or to anyone else who might be concerned or interested. The letter tenders no explanation why or how it came about that none was.

Mr Knox representing the Attorney General, a member of the Cabinet, was equally in no position before the Board to tender any explanation. The letter was in the bundle put before the Board.

It is self-evident that any court dealing with the appeal would expect an explanation on this, and other points, arising upon the letter.

The Cabinet’s consideration of CBSL’s application is presented in the letter as the ordinary, objective consideration that any application should receive, quite independently of any legal proceedings.

If that were so, there could be no basis for not communicating it accordingly. The cross-appeal to the Court of Appeal could not justify failure to notify CBSL of the failure of its application. One can only speculate whether any notification would have taken place had the cross-appeal succeeded.

(4) The letter discloses a situation in which the Court of Appeal was allowed to proceed under a serious misapprehension in and throughout the course of two substantial hearings.

The Court of Appeal was twice allowed to give judgment on false premises, viz that the Cabinet had never considered the licence application, still less reached any decision on it prior to the Court of Appeal’s first judgment. Again no explanation had been tendered as to why or how this could have come about, although it is obvious that one would be expected.

(5) Contrary to the impression that the respondent through his counsel gave or allowed the Court of Appeal to have during the second hearing, the letter dated May 17, 2005 does not disclose any substantive re-consideration of the matter by the Cabinet after and “in compliance with” the Court of Appeal’s first judgment.

On the contrary, it is inconsistent with there having been any such re-consideration or compliance.

27. Mr Knox conceded that the position was “unusual and unsatisfactory.” That is an understatement. Mr Knox went on to argue valiantly that, in the light of the facts disclosed in the letter dated May 17, 2005, the appropriate course would now be for CBSL to take fresh proceedings for judicial review of the Cabinet’s refusal, or (secondly) for the Board simply to make yet a further order for the Cabinet to re-consider the application, or (as a third possibility) for CBSL to avoid any Cabinet involvement by making a new application to the Telecommunications Authority.

In the Board’s view, neither the first nor the third of those possible courses could be an appropriate response to the course of events which has become apparent since the Court of Appeal was allowed to deal with the matter under a misapprehension as it did. They do not take appropriate account of the long history of this matter, the inequality of treatment established independently of the new matters now known, or the Cabinet’s uncommunicated consideration and decision to refuse a licence in June 2004 on a ground that the Attorney General had been refused permission to raise by the Judge. All these matters relate closely to the course of and issues in the present proceedings.

Any suggestion that CBSL should have to commence yet further proceedings or begin with a fresh application to the Telecommunications Authority is in the Board’s view unrealistic. The same matters also bear strongly, in the Board’s view, on the question whether the second course would, as matters now appear, afford appropriate relief in these proceedings.

28. Before considering that question further, the Board observes that the course of events revealed by the letter dated May 17, 2005 is also relevant in relation to Sir Fenton’s submission that the Board should consider the constitutional challenge based on section 4(h) and (I), and that a finding of a breach under one of these sections could have a bearing on the appropriate remedy. The Board sees force in Warner JA’s view that section 4(h) is irrelevant to an application by a corporate entity. With regard to section 4(I), the Board starts by noting section 5(1) of the Constitution which provides:

“Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgment or infringement of any of the rights and freedoms hereinbefore recognised and declared.”

29. A law may clearly “abridge” or “infringe” the right to freedom of expression without entirely “abrogating” it.

Likewise, the right which section 4(i) guarantees will exist without discrimination in respect of freedom of expression can be infringed even though (i) no absolute right exists to a licence and (ii) the conduct impugned does not abrogate all freedom of expression, but leaves it in many respects unaffected. In Benjamin v Minister of Information and Broadcasting (2001) UKPC 8; (2001) 1 WLR 1040, the Board was concerned with the Constitution of Anguilla, section 11 of which provided that “Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression.....”

The government had decided to suspend a radio programme, without notice to the producer, because of criticisms and statements of intention to sue made by the vice-president of the local lottery company after the producer said that a lottery was inappropriate and in his view illegal. The Board in its opinion considered that “freedom of speech ..... may be hindered where there is no contractual and no absolute generalised right to speak in the way in which the individual wishes to express his views” (paragraph 31).

It regarded “the motive of the government in closing the programme ..... (as) a relevant factor in deciding whether there was a contravention of section 11” (paragraph 49).

It observed that Benjamin was “not a case where the government, as owners of the radio station, felt that the programme had ceased to have sufficient audience participation or appeal”, nor a case where there had been intended from the beginning a limited series or period (paragraph 49).