Central Broadcasting Services Ltd and another v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Mance |
| Judgment Date | 04 July 2006 |
| Neutral Citation | [2006] UKPC 35 |
| Court | Privy Council |
| Docket Number | Appeal No 49 of 2005 |
| Date | 04 July 2006 |
[2006] UKPC 35
Present at the hearing:-
Lord Hoffmann
Lord Hope of Craighead
Lord Hutton
Lord Brown of Eaton-under-Heywood
Lord Mance
Privy Council
[Delivered by Lord Mance]
In December 1999 and September 2000 the second and the first appellants respectively applied for a radio broadcasting licence. The second appellants, the Sanatan Dharma Maha Sabha of Trinidad and Tobago Inc. ("SDMS"), are a substantial religious and cultural organisation. Amongst other things, they run schools, focusing, the Board understands, on the large Hindu population in Trinidad and Tobago. Their licence application on 1 st December 1999 was for a Hindu radio station aimed at an estimated 35% of the total listening market. Existing stations were said not to cater for the Hindu religion. In August 2000 SDMS incorporated the first appellants, Central Broadcasting Services Limited ("CBSL"), which submitted the second application on 1 st September 2000. This application was directed at a market of the same estimated size as that in SDMS's application, but described as the East Indian Youth Market, for which again existing stations were said not to cater. It was said that the proposed new station would be "for the enhancement and better understanding of Youth Related Issues, and the programme format will reflect this through its religious, cultural, musical, educational and discussion contents".
The applications were made under the Wireless Telegraphy Ordinance (Chapter 36 No. 2) of 1936, which in terms required any person installing or using any such wireless apparatus to obtain (in the absence of any applicable regulations made under the Ordinance) a "special licence" issued by the Governor General, and provided that the Governor General might "appoint a Wireless Officer and such other officers and servants as may be necessary for the purposes of the Ordinance". With the coming of independence and republican status, this provision fell at the material times to be read as requiring a licence issued by the President of Trinidad and Tobago acting on the advice of the Cabinet or a Minister acting under the general authority of the Cabinet. Applications were in the first instance evaluated by the Director of the Telecommunications Division of the relevant Ministry, the identity, or at least name, of which changed on several occasions (from the Ministry of Communications and Information Technology in early 2001, to the Ministry of Science, Technology and Tertiary Education between December 2001 and 2002 to, thereafter, the Ministry of Public Administration and Information). Applications which the Director of the Telecommunications Division approved would be forwarded with his corresponding recommendation for the Minister's attention.
The Director at the time of the Telecommunications Division, Mr Ragbir, was prompt to evaluate CBSL's application. After requesting and receiving certain information in September 2000, he wrote to the Permanent Secretary of the Ministry on 10 th October 2000 to report that the application "has met all the necessary criteria for a broadcasting station" and that the "division has no objection to the grant of this licence". But no decision was made regarding any licence and the appellants wrote to the Ministry seeking information. By letter dated 5 th March 2001 the Permanent Secretary said he would investigate and communicate again "shortly". Internally, this led to a further memorandum from the Director to the Permanent Secretary dated 15 th March 2001, in which he referred to "your memorandum dated 10 th October 2000" and advised that SDMS's application "was sent to you under the Company's name Central Broadcasting Services Limited with my recommendation". The Director may have meant to refer to his own memorandum dated 10 th October 2000 or there may be another missing memorandum. Either way it is clear that (despite an apparently contrary statement in his affidavit sworn 16 th August 2002) he was treating CBSL's application as effectively embracing and subsuming SDMS's application and was recommending it accordingly. Before the courts below there was an issue whether there were thereafter two applications or only one by CBSL, as the Court of Appeal held. Realistically, Sir Fenton Ramsahoye SC representing the appellants was in oral submissions content to put this issue aside, and focused attention on CBSL's application which was unquestionably evaluated and recommended.
Again however nothing was heard by the applicants, until in August 2002 it came to their attention that a radio broadcasting licence had been granted to a company called Citadel Limited ("Citadel"), whose directors were a Mr Louis Lee Sing and Mr Anthony Lee Aping. A new administration had held office since the general election in December 2001, which had resulted in a tie with each party having 18 seats in the House of Representatives. The Minister of Science, Technology and Tertiary Education from December 2001 was Mr Hedwidge Bereaux. In a media conference on 1 st August 2002 Mr Bereaux stated that Citadel had applied for its licence on 13 th March 2001. A search of the Companies Registry showed the appellants that Citadel was only incorporated on 28 th August 2001.
The appellants in these circumstances began proceedings on 16 th August 2002 against the Attorney General, being the appropriate representative of the State for that purpose under section 76(2) of the Constitution of Trinidad and Tobago. They alleged that "The present administration arbitrarily and quickly awarded a radio licence to Citadel Limited in disregard of other applicants whose applications had been pending and were first in time". They claimed declarations that they had been denied equality of treatment contrary to section 4(b) and (d) of the Constitution and that their right to freedom of conscience, religious belief and observance and to freedom of thought and expression had been denied contrary to section 4(h) and (i) of the Constitution. They sought an order directing the grant of licences or such further orders and directions as might be necessary and appropriate.
The Constitution of Trinidad and Tobago provides:
" Rights enshrined
4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely-
(a) …..
(b) the right of the individual to equality before the law and the protection of the law;
(c) …..
(d) the right of the individual to equality of treatment from any public authority in the exercise of any functions;
(e) …..
(f) …..
(g) …..
(h) freedom of conscience and religious belief and observance;
(i) freedom of thought and expression;
(j) …..
(k) ….."
The proceedings were supported by two affidavits sworn on 16 th August 2002, one from Mr Satnarayan Maharaj, the secretary general of SDMS, the other from Mr Ragbir, the former Director of the Telecommunications Department who had retired on 13 th April 2002, having been on pre-retirement leave from 30 th November 2001. Mr Maharaj's affidavit attested to the course of events set out above so far as it involved action by or communications with the appellants. By an application only made in January 2004 the Attorney General applied successfully to the trial judge, Best J, to strike out certain passages in it as containing hearsay. These were passages based on a newspaper report dated 9 th August 2002 regarding, first, the granting by the Cabinet of the Citadel licence to Mr Sing, described as an open supporter of the new administration, and, second, statements in that connection by the Minister, Mr Bereaux, when announcing and giving his explanation of the grant at the media conference following the Cabinet meeting at which the grant was made. Sir Fenton challenges the basis for the striking out what were reports of ministerial statements intended to inform the public. He points out that Smith J had on 3 rd July 2003 ordered that, unless the respondents filed affidavits by 29th August 2003, the matter should proceed on the basis of the appellant's affidavits; that, in response to this order, affidavits had been sworn on 28 th August 2003 by the Minister, Mr Bereaux, and by Miss Mala Guinness (Deputy Director of the Telecommunications Division who had effectively stepped into Mr Ragbir's shoes after he went on pre-retirement leave on 30 th November 2001); and that these two deponents had responded generally to the appellants' two affidavits (although not specifically to the passages to which the respondents later objected). The Board sees some force in these submissions by Sir Fenton but does not consider that the outcome of this appeal turns on whether the judge was correct to strike out the passages in question. It is unnecessary to take further time considering Sir Fenton's challenge to their striking out.
Mr Ragbir in his affidavit recounted the position within the Telecommunications Division, as set out above, and produced certain lists of outstanding and recommended applications, including a list submitted by him on 30 th October 2001 to the Minister under the previous administration, Dr Moonilal. This included CBSL as one of seven outstanding applications which Mr Ragbir had as at that date submitted with recommendations for the Minister's attention.
Mr Bereaux said that he never saw any of the lists produced by Mr Ragbir. The only list he saw was a list of outstanding applications requested by him in February 2002 and received by him from Miss Mala Guinness with a covering...
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