The proposed amendments to the IBA Act being rushed through the National Assembly have raised widespread alarm from all quarters which feel that the freedom of private radio stations, their guests and auditors, are being dealt a crippling blow. One particular media channel, whose IBA license renewal has been held up, seems targeted for government wrath. Lex delves into the legal and constitutional avenues for challenging those amendments and on related issues of judicial interest.
* The object of the Independent Broadcasting Act (Amendment) Bill is to provide “a better legal framework to regulate licensees of the Authority”, empower “the Authority to impose administrative penalties”, and enhance “the regulatory provisions in the Act”. What are the implications for private radios once the Bill is voted and why are they questionable?
One should not be fooled by the objects of the Bill, as stated in the Explanatory Memorandum. The main object of the Bill is to control the private broadcasters especially those that are perceived to or would be critical of the government and its policies. The primary and uppermost object of the Bill is to stifle criticisms and impose a pre-censorship on private broadcasters.
* Why would a government be dispersing its energies at this critical time in the fight against the resurgence of the Covid pandemic and shift its focus to controlling how private radios operate and indeed threaten, as widely suspected, the continued existence of one particular radio with this amendment of the IBA?
At a time when all resources and energy should be channelled towards efforts to combat the Covid-19 and its variants and save lives, all we see is a law that is blatantly going against the freedom of information as guaranteed by the Constitution. It should not be forgotten that many people were arrested and detained on the flimsy ground that they had breached laws and regulations relating to the use of social media. The moment a minister or any other member of the majority felt annoyed, he/she would rush to the police and the police would show exceptional zeal in arresting the alleged offender.
Now that Justices D. Chan Kan Cheong and K.D. Gunesh-Balaghee have ruled in the matter Seegum J v The State of Mauritius that Section 46(h)(ii) of the Information and Communication Technologies Act (“as it stood at the time of the commission of the present offences”, that is in 2012), in relation to the offence of using an information and communication service for the purpose of causing annoyance, for which Vinod Seegum was prosecuted, “must be struck down as unconstitutional, being in breach of the principle of legality implied under section 10(4) of the Constitution”, the government is looking for other ways of stifling criticisms.
* The view has been expressed that the amended IBA, as proposed by the government, would not meet the test of constitutionality. What do you think?
The European Court and the United Nations Human Rights Committee have ruled time and again that though freedom of information and expression is not an absolute right, nonetheless any derogations therefrom or restrictions should be such as not to destroy or reduce that right to a mere nothing.
The law may not stand the test of constitutionality if the Courts find that the restrictions and conditions are not justifiable in a democratic society and are not proportionate to the mischief the government intends to combat.
After all, what is the mischief? Criticisms aired by private broadcasters against the government and ministers or state institutions? No broadcaster will, in his/her right mind, deliberately allow the broadcasting of materials that would offend morality, or promote terrorism or defame people, so the government can only hope to clip the wings of broadcasters only when criticisms are levelled against it on private broadcasters…
* The Opposition parties have said their intention to contest the constitutionality of the IBA (Amendment) Bill before the Supreme Court. Do they have the locus standi to do that?
Locus standi is a key question in the challenge. The Supreme Court has taken a very conservative and restrictive view of locus standi. How will the Opposition parties justify their locus standi remains to be seen?
We do not have the concept of Public Interest Litigation (PIL) in Mauritius like in India. PIL refers to a litigation undertaken to secure public interest. It is not created by statute. It was introduced by eminent Indian Judge N. Bhagwati who is well known for his crusade in favour of human rights. In Indian law, public interest litigation is for the protection of public interest. It is litigation introduced in a court of law, not by the aggrieved party, but by the court itself or by any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court.
Public Interest Litigation is the power given to the public by courts through judicial activism
It remains doubtful whether Public Interest Litigation would be introduced through judicial activism in Mauritius? Though we have a written Constitution, like in India, we are still bogged down by the common law procedures that are obtained in England where there is no written constitution and where the concept of Crown prerogative moulds the law to a large extent.
* The action of government in this matter is said to be directed against Top FM whose licence will come up for renewal soon and which would have become a thorn in the side of the governing alliance. It’s therefore going to be a case of abide-or-disappear, unless Top FM decides to contest the Bill, right?
It is what lawyers call an ad hominem legislation, that is a legislation to target one particular organization or individual. One should not forget the number of times that Top FM has been taken to task by the IBA. It is to circumvent the court decisions that the IBA is being amended to make it more difficult if not impossible for Top FM to have its licence renewed.
* Top FM will have locus standi to challenge the legislation.
Of course, Top FM will have a locus standi following a decision of the Authority not to renew its licence or other decision.
The law, as it stands, imposes a number of obligations that a broadcaster will have to comply with before obtaining a licence. With the amendment, a new condition comes up: the Authority will also have the power to consider the past conduct of the broadcaster before renewing its licence.
What conduct does the legislator have in mind? This is not clear. Any conduct will be a justification to refuse a licence the more so as the Authority is composed of political appointees as well.
* On the other hand, there’s the MBC, which is regulated by the MBC Act, and which collects a monthly fee from all CEB account holders. One may or may not be happy with the MBC’s independence, but is it compulsory to pay MBC TV licence?
According to law, yes unfortunately. One day somebody must challenge that ill-advised decision in court.
Why should somebody pay for the licence when he is to be burdened by government propaganda day in and day out. The individual must have a choice in that matter.
* Would any licence-paying member of the public have the locus standi to contest the MBC’s editorial line?
The Mauritius Broadcasting Corporation Act provides that anybody who feels aggrieved to have a right of reply. Section 19 of Actprovides the following:
’19. Right of reply (1) Any person who alleges that his honour, character, reputation or goodwillhas been adversely affected by – (a) any matter which has been broadcast by the Corporation, or (b) any political broadcast during any election campaign, may, withoutprejudice toany right he may have under any other enactment, make a written application in the prescribed form to the Chairman for aright of reply within 5days of the matter broadcast or within 48 hoursof the political broadcast, as the case may be. (2) Where the Board is satisfied that the honour, character, reputation or goodwill of the applicant has been adversely affected and the applicant has made his application in the form and within the period mentioned in subsection (1), it shall at the earliest available opportunity grant to theapplicant a right of reply on such terms and conditions as it thinks fit.’
* Published in print edition on 30 November 2021
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