RAMBACHAN v.

TRINIDAD AND TOBAGO TELEVISION CO LTD ET AL

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Citation # TT 1985 HC 8
Country Trinidad and Tobago
Court High Court
Judge Deyalsingh, J.
Subject Constitutional Law
Date January 17, 1985
Suit No. No. 4789 of 1982
Subsubject Fundamental rights and freedoms - Refusal of state-owned radio station to broadcast applicant's pre-
recorded speech - Infringement of fundamental right of applicant to express political views and of
freedom of expression.
Full Text Appearances:

Mr. K. Hudson-Phillips S.C., Mr. P. Dass and Mr. O. Dougan for applicant

Mr. M. Daly S.C. and Mr. P. Clarke for 1st respondent

Mr. C. Beckles and Miss J. Quamina for 2nd respondent

DEYALSINGH, J.L.: By Notice of Motion filed on the 23rd December, 1982 the applicant moves the
Court for: [end of page 1]

1. A. A declaration that the refusal on Tuesday 21st December, 1982 by the first name respondent, a
state owned corporation state-owned company, to wit, a company incorporated under Ch. 55:02 of the
laws of Trinidad and Tobago wholly owned by and on behalf of the government of Trinidad and Tobago,
having a monopoly of television broadcasting granted by the state of Trinidad and Tobago to show or
exhibit on the said Tuesday 21st December, 1982 a pre-recorded speech of the applicant constituted a
contravention in relation to the applicant of his right to equality of treatment from a public authority in the
exercise of its function.

B. A declaration that the aforementioned refusal by the first-named respondent constituted a

2. A declaration that the aforementioned refusal by the first named respondent constituted a
contravention in relation to the applicant of his right to express political views.

3. A declaration that exercising its function so to refuse the applicant the first named respondent was
acting as an agent and/or servant of the state.

4. A. A declaration that the state so operates and controls the first named respondent that the rights of
the applicant to equality of treatment from the first name respondent, to express political views, and to
freedom of the press are being and are likely to be contravened in relation to the applicant.

B. A declaration that the policy of the first-named respondent with respect to the access to television
and the expression of political views on the same as stated in a letter dated the 10th day of February,
1982 constitutes a contravention of the rights of the applicant to freedom of though and expression to
express political views and the freedom of the press.

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5. An order that the respondents be required to publish promulgate or make such rules and/or
procedures as to the Honourable Court shall be appropriate for the purpose of ensuring and securing
that the first named respondent accord to the applicant the aforementioned rights and freedom to wit;
the right to equality of treatment from the first-named respondent in the exercise of its functions, the
right to express political views and the freedom of the press.

6. An order that damages in respect of the infringements of the aforesaid rights be accessed and paid to
the applicant.

7. An order that damages in respect of the damage and loss suffered by the applicant as a result of the
aforesaid contravention and infringements of the rights of the applicant guaranteed under the
constitution of the Republic of Trinidad and Tobago be assessed and paid to the applicant.

The matter was commenced before Warner J. With his elevation to the Court of Appeal before the
conclusion of the hearing, all counsel before me agreed that the matter should be heard de novo with
certain rulings of Warner J. on the affidavits, to stand. [end of page 2]

The first respondent (hereafter called “T.T.T.”) is the party whose action is challenged. The second
respondent (hereafter called “the Attorney General”) comes in by virtue of the alleged relationship
between the T.T.T. and the State.

Mr. Daly took the preliminary point that the motion is misrepresented. He submitted that section 14 of
the Constitution of Trinidad and Tobago (hereafter called “the constitution”) and under the which the
motion is brought is limited to proceedings against the State or some public authority endowed with
coercive powers; that T.T.T. is a private individual and that therefore the motion must fail in limine. Mr.
Beckles adopted that submission and Mr. Hudson Phillips argued contra. After listening to
comprehensive and forceful arguments on both sides, I reserved my decision on the point and
proceeded to a hearing of the motion on the merits.

I approach the construction of the constitution mindful that it is an area where “politics” and law may
overlap to some extent; and further that there should be no trespass by the judiciary into the field of the
executive (hereafter called “the government”) which must be left unhampered and uninterrupted to carry
out its functions of governing the country in accordance with its constitutional powers set out in
particular in the constitution thus:

“75. (1) There shall be a cabinet for Trinidad and Tobago which shall have the general direction and
control of the government of Trinidad and Tobago and shall be collectively responsible therefor to
parliament.”

And in exercising its powers, so to do for the peace, order and good government of the country.

I follow the well-established rules of construction for the constitution. It is the supreme law of the land. It
is a document which in its preamble positively affirms that we as a people acknowledge the supremacy
of god and recognise that a respect for moral and spiritual [end of page 3] values is essential to
freedom; and seeks to reduce these and other principles to written language in terms which must
necessarily be broad. Not surprisingly, the Courts of several countries have adopted the doctrine of
liberal interpretation in dealing with their constitutions. Thus in adhering to this doctrine, Chief Justice
Marshall of the U.S. Supreme Court said:

“In considering the question, then we must never forget that it is a constitution we are expounding.” (Mc
Culloch v. Maryland (1819) 4 Wh. 316.”

In interpreting the Canadian Constitution, the Privy Council observed:

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“In interpreting a constituent organic statute, that construction most beneficial to the widest amplitude of
its powers must be observed.” British Coal Corporation v. The King [1935] P.C. 158.

Similarly in construing the Government of India Act, 1935, the Federal Court said:

“A broad and liberal spirit should inspire those whose duty is to interpret it.” Gopalan v. State of Madras
[1950] S.C.R. 88 (120)

And to what Lord Wilberforce in delivering the judgement of the Privy Council in Minister of Home
Affairs v. Fisher [1979] 3 All E.R. 21 at page 26 said: that a constitution should be treated:

“As sui generis, calling for principles of interpretation of its own, suitable to its character....without
necessary acceptance of all the presumptions that are relevant to legislation of private law.”

And finally to what Lord Diplock in delivering the judgement of the Privy Council in Ong Ah Chaun v.
Public Prosecutor [1980] 3 W.L.R. 855 at 864 G) said:

"This said however, their Lordships would repeat what this Board has said an many previous occasions
and most recently through Lord Wilberforce in Minister of Home Affairs v. Fisher [1980] AC 319:[1979] 3
All E.R. 21 P.C. [end of page 4] that the way to interpret a Constitution on the Westminister model is to
treat it not as if it were an Act of Parliament but as ‘sui generis." As in that case, which concerned
fundamental rights and freedoms of the individual guaranteed by the Bermuda Constitution, their
Lordships would give to Part IV of the Constitution of the Republic of Singapore 'a generous
interpretation avoiding what has been called the austerity of tabulated legalism' suitable to give to
individuals the full measure of the (fundamental liberties) referred to."

And so I approach the interpretation of the constitution “with a broad and liberal spirit.”

Before proceeding to consider the issue, I think it is necessary to point out that under our constitution,
the Courts are given the duty to adjudicate on certain matters between the government and the citizen.
If then (and I use the words of Sastri C.J. in State of Madras v. Row S.C.R.(check) at 605) “the Courts
in this country face up to such important and none too easy task, it is not out of any desire to tilt at
executive authority in the crusader’s spirit, but in discharge of a duty plainly laid upon them by the
constitution. This is especially true as regards the “fundamental rights” as to which this Court has been
assigned the role of a sentinel at the gate. While the Court naturally attaches great weight to the
executive judgment, it cannot desert its own duty to determine finally the constitutionality of an
impugned act. I have ventured on these obvious remarks because it appears to have been suggested in
some quarters that the Courts in the new set up are out to seek clashes with the executive of this
country.” Nothing could be further from the truth. The motivating factor of the Courts is to give judgment
in accordance with the law and in all good conscience; and this they do while involving the government
with a sense of the comity that must exist between the three arms of the State. But they are duty bound
to remember that they reflect the constitutional conscience of the community and must therefore, if
necessary be prepared to say “fiat justitia, ruat coelum.” [end of page 5]

The issues in this case are broadly two:

(1) Is T.T.T. amenable to proceedings Under Sec. 14 of the Constitution; and

(2) If yes, has T.T.T. (and consequently the State) infringed any fundamental right or freedom of the
applicant.

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Issue 1 - Is T.T.T. amenable to proceedings under section 14 of the constitution:

Sec 14 provides:

“14. (1) For the removal of doubts it is hereby declared that if any person alleges that any of the
provisions of this chapter has been, is being, or is likely to be contravened in relation to him then without
prejudice to any other action with respect to the same matter which is lawfully available, that person
may apply to the High Court for redress by way of originating summons."

Mr. Daly argued with much force that T.T.T. is a company incorporated under the Companies Act Ch.
31 No. 1, that by its Articles of Association its authority and management are vested solely in the Board
of Directors and that notwithstanding the fact that its total share issue is owned by government, it is
nevertheless a private individual and independent of government in the eyes of the law. He put his case
squarely on the “personality” of T.T.T. Mr. Beckles adopted this submission in total declaring that the
position the State takes is that T.T.T. is a private individual free from all and any control or interference
by the government.

The real question here is what is the test to be applied or what is the approach to be adopted to
determine whether the challenged acts of T.T.T. bring it within the reach of section 14. Mr. Daly places
the main thrust of his argument on certain words of Lord Diplock in Maharaj v. A.G. [1978] 2 All E.R.
670. He concedes however, that Lord Diplock's "test" is not exhaustive and suggests that there may be
other tests viz: (i) control of the organ by government [end of page 6] and/or (ii) the functions performed
by the organ. Whatever the test applied, Mr. Daly submits that the applicant must fail. Mr. Hudson
Phillips in addition to meeting Mr. Daly’s arguments, submits that in the realm of the fundamental rights,
a case by case instead of an a priori approach must be adopted; that what has to be looked for is
whether the offending organ possesses “ability or facility to infringe any fundamental right and whether
that ability or facility has the colour of action by the State.” He argues further that private individuals and
corporations are amenable to section 14 proceedings.

And now to Mr. Daly’s main argument: The origin of his submissions is the words of Lord Diplock in
Maharaj v. A.G. (supra). That was a case involving the fundamental right not to be deprived of liberty
otherwise than by due process of law under section 1(a) of the former Constitution of Trinidad and
Tobago (re-enacted with the fundamental rights provisions intact in the constitution). A judge of the High
Court of Justice had committed a barrister to prison for contempt of Court. The barrister brought
proceedings under the then constitution against the attorney general as a representative of the state for
infringement of his rights and Lord Diplock posed this question: whether the failure of the judge to
inform the appellant of the specific nature of the contempt of Court with which he was charged before
committing him to prison for it contravened a constitutional right of the appellant to which he was
entitled to protection under section 1 (a). In answering this question Lord Diplock said:

“To revert then to the legal nature of the rights and freedoms described in paras. (a) to (k) of S.1., and in
particular, to the question, against whom is the protection of the individual in the exercise and
enjoyment of those rights and freedoms granted? In his dissenting judgment Phillips JA said:

‘The combined effect of these sections (Sc. 1,2 and 3) in my judgment, gives rise to the necessary
implication that the primary objective of Chapter 1 of the constitution is to prohibit the contravention by
the state of any of the fundamental rights or freedoms declared and recognised by S 1.’ [end of page 7]
Read in the light of the recognition that each of the highly diversified rights and freedoms of the
individual described in S.I already existed, it is in their Lordships’ view clear that the protection afforded
was against contravention of those rights or freedoms by the state or by some other public authority
endowed by law with coercive powers. The chapter is concerned with public law, not private law. One
man’s freedom is another man’s restriction; and as regards infringement by one private individual of
rights of another private individual, S.I. implicitly acknowledges that the existing law of torts provided a
sufficient accommodation between their conflicting rights and freedoms to satisfy the requirements of
the new constitution as respects those rights and freedoms that are specifically referred to.”

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That statement, coming as it is from the highest Court of the land, expresses the law in so far as it is
directed to actions by the State since that case concerned contravention of the barrister’s rights by an
arm of the state. The inclusion of “some public authority endowed by law with coercive powers” is obiter
but coming from their Lordships of the Privy Council after it seems, some consideration being given to
the point, it would be a hold Court of first instance indeed which refuses to follow it without the most
cogent of reasons. For my part, I am willing for the purposes of this Motion, to accept Lord Diplock’s
statement above as being a correct statement of the law and therefore, putting private individuals in the
strict sense, beyond the reach of section 14.

But a more detailed look at Maharaj is necessary if Lord Diplock’s “test” is to be understood. Maharaj
dealt with the action of a judge acting in his official capacity. It therefore, concerned the judiciary, one of
the three arms of the State (the other two of course, being the legislature and the executive) and fell
within “a contravention....by the State.” Caught by the word “state” would be the other arms of the state,
as also departments of the State falling directly under a Minister of the State. Phillips J.A., part of whose
judgment Lord Diplock quoted with approval, had actually [end of page 8] limited himself to a
“contravention by the State.” Immediately following the quote came the “test” of Lord Diplock. He
extended the category of those caught. He added “....or by some public authority endowed by law with
coercive powers.” It is clear that he was now including entities not caught within the obvious and
traditional state departments. He no doubt had in mind the fact that within the last thirty or so years
there has been a complete transformation in the functions of a sovereign state. They are going beyond
the traditional functions - to maintain law and order; to conduct foreign affairs; to see to the defence of
the country and have extended their activities to the commercial and other fields. And Lord Diplock, it
seems to me, considered that the State should not escape the fundamental rights not by virtue only of
the fact that one of the traditional departments of state was not involved.

Lord Diplock used the convenient phrase “public authority...” to catch these non-traditional entitles. I do
not think he used the phrase as a term of art or in any limited sense. He certainly did not intend it to be
a “statutory definition”; nor only to include statutory corporations. There is no one fixed definition of a
“public authority” and it’s meaning must depend upon the statutory or other context in which the phrase
is used. Generally it will mean a body authorised to function in the public interest. Here the phrase was
used by Lord Diplock in the context of the constitution and the fundamental rights entrenched therein.
He was, I think, using the phrase in a broad sense, to describe the category within whose net offenders
against fundamental rights are caught. And included therein would be any entity, however constituted,
in which the government in its undoubted right to govern, decided in the public interest to participate in a
substantial way, whether financially or otherwise. [end of page 9]

Certain English cases dealing with English constitutional Law as also a Sri Lankan case dealing with the
prerogative writ of certiorari were cited by Mr. Daly and Mr. Beckles. I will advert to these, cases later.
At this point I would sound the warning that our Courts have to be careful in applying the English
common law in matters relating to the constitution of the United Kingdom, to the local situation. The
Constitutional Law of the United Kingdom is largely unwritten and predicated upon a political,
constitutional and legal history peculiar to that country, a history commencing with the King as the
legislative, executive and judicial authority. The situation has of course, largely changed de facto but in
theory the sovereign still heads the legislature; the Ministers are still the Queen’s Ministers and the
Courts are still the Queen's Courts. The point remember from this historical background is that the
common law regarding a powers of the Executive and the Courts have progressively evolved (and are
still evolving) in a peculiarly "English" setting. The position in Trinidad and Tobago is different. We have
a written Constitution which (though deriving from the "English" constitution common law and to which
therefore, reference an legitimately be made in appropriate cases) establishes and crystallizes the
powers of the legislature, the executive and the judiciary in writing; and it is to this writing that we must
go when questions of the functions and powers of government arise. In other words, the Constitution is
supreme and English constitutional law is only applicable after careful analysis. At the risk of being
repetitive I must emphasize that in construing the Constitution we must always keep very clearly in mind
that we are Trinidad and Tobago, not the United Kingdom; we are Trinidadians and Tobagonians, not
Englishmen, Scotsmen or Welshmen; and we have our own social and political background which is
positively and [end of page 10] definitely not the same as that of the United Kingdom. We have a written
constitution with all that that implies, not an unwritten one as in the United Kingdom. Our organs of
government - the legislature, the executive and judiciary - are established and their powers
circumscribed by the constitution and not by the historical evolution of the common law. The English
have no fundamental law as such and there are no rights which are fundamental in the sense that they
enjoy special constitutional and legal protection against interference by the legislature and the executive

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English constitutional law”.... is confined by the Austinian concept of parliamentary omnipotence (and)
provides scant guidance to Commonwealth countries when they decided claims of infringement of
fundamental rights.” (Per Anthony Lester Q.C., in Fundamental Rights: The United Kingdom Isolated?
Mr. Lester (speaking of English Law) went on to say:

“We are in danger of creating an incomplete system of 'public law’, which operates more as a shield for
public authorities than as a protection for the rights of individuals. What is lacking in English law is
precisely that positive code of rights and freedoms which is guaranteed by the (European)
Convention...”

and of course, by Constitutions such as ours.

To apply English decisions without regard to the underlying constitutional principles and the patently
differing social circumstances can actually constitute a breach of the constitution itself. This must never
be allowed to happen for it can be disastrous. Too many developing countries of the British
Commonwealth of Nations have learnt, alas too late that the edifice of constitutional principles must not
be allowed to be breached in even the smallest way. Such a breach is the forerunner of the loss of
liberty. In all of this, the Courts stand as Guardians of the constitution upon which the well being of the
country is anchored. And being guardians, they are not limited to addressing themselves only to [end of
page 11] actual attacks upon the Constitutional edifice. Their duty includes as a matter of simple
prudence, giving warning when in matters arising before them they perceive dangers in the making, by
re-iterating the constitutional principles, identifying the danger and giving warning of the consequences.
And this in my view is imperative in developing countries where the traditional checks and balances to
the misuse and abuse of power not present or fully developed.

Coming back to the issue: Mr. Hudson Phillips argues that to uphold the "personality test" is
inappropriate to our constitutional law and could easily lead to the use of organs like T.T.T. as a cloak
for a fraud on the constitution. As a matter of fact he went much further: He submits that “the continued
operation of T.T.T. is a clear device by government to prevent others from operating a television
station.... to create a monopoly without an Act of parliament and to permit the government to use T.T.T.
as a device or stratagem for curtailing the fundamental right to freedom of the press and that, on the
transparent argument that T.T.T. is a separate entity in law." He submits that the Court can take notice
of the societal conditions in region.... "of how easy it is to suborn democratic principles particularly by
those who profess to be democratic and who profess loudest in the name of democracy in their route to
total dictatorship. They abuse democratic principles in an attempt to get total control. Communists say
theirs is the real democracy; so do the fascists but all use freedom under democracy, to defeat
democracy.”

This Court definitely takes the view that our constitutional law must be applied again the societal
backdrop.... keeping constantly in the forefront the constitutional principles upon which the constitution
is grounded. And there is some authority, if authority be needed for such a common-sense proposition,
in the case of Commonwealth of Australia v. Bank of New South [end of page 12] Wales [1950] A.C.
235 P.C. That case raised "important and difficult questions as to the legislative power of the
commonwealth government under the Australian constitution and as to the limitations expressly or by
implication imposed on it by the constitution.” Lord Potter delivering the judgment of the Privy Council
said (at page 310)

"In the application of those general proposition (of construction) in determining whether an enactment is
regulatory or something more, or whether a restriction is direct or only remote or incidental, there cannot
fail to be differences of opinion. The problem to be solved will often be not so much legal as political,
social or economic, yet it must be solved by a Court of law. For where the dispute is, as here, not only
between Commonwealth and citizen but also between Commonwealth and intervening states on the
one hand and citizen and states on the other it is only the Court that can decide the issue. It is vain to
invoke the voice of parliament.”

And see Ambard v. A.G. of Trinidad & Tobago [1938] 1 All E.R. at p. 708. His Lordships clearly
recognised that in constitutional matters, social conditions (using the phrase broadly) may arise and if
they do, the Courts must solve the problem taking of necessity, such social conditions into
consideration.

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To limit the constitutional issue raised in this motion to the “personality test” can very well offend against
one of the underlying principles of the constitution. Power without responsibility is a concept alien to our
constitutional framework. To the government is given very wide powers. Where in its wisdom therefore,
it brings any activity within the public portfolio and retain some substantial measure of control, whether
actual or potential, over those activities then it must in constitutional law and in my view also in
commonsense, retain the responsibility for the legitimate performance of those activities. To hold
otherwise (and particularly in developing countries where the traditional checks and balances to political
power are not yet fully developed or are ignored) is to Court constitutional disaster. This can easily lead
to a situation where an executive can by establishing various non-traditional governmental entities, [end
of page 13] retain to itself the power but without the responsibility, thus negating the underlying
constitutional concept; and in a case like the instant one, negating the fundamental rights of the
individual by the device of creating legal entities to which is committed power to offend against those
rights without any redress by the individual.

Of particular concern in Trinidad and Tobago (as indeed in most developing countries) is the
ineffectiveness of the traditional checks and balances to political power and of the conventions of the
constitution which whether legally enforceable or not, constitute an essential element in the proper
functioning of the constitution. A strong case can be made out for the proposition that the established
conventions of the constitution may be enforceable or at least, may be the subject of a declaratory
judgment, being as they are, the oil, which lubricates the constitutional engine. Material to this case is
whether T.T.T. is really independent as Mr. Daly contends, or whether control is exercised from above,
as Mr. H. Phillips submits. No act of direct interference has been proved and I find none. But the more
important question arises: In the absence of a tradition of independence on the part of statutory and
other legal bodies such as T.T.T. must the Court in a constitutional case conclude the matter relying
solely on the institutional framework of that body.

There can be no presumption of the independence of such organs in a society which has doubts about
such independence for after all, the law is effective only if it is respected and being respected, accepted
by society; and it will endure only so long as the people recognise it as being capable of dealing with
their problems. As I have stated before, the law has to be applied against the societal backdrop of the
day; to do otherwise would be to create an artificial and perhaps, farcical situation leading eventually to
a breakdown of law and order. And who is to measure the societal backdrop. I think the obvious [end of
page 14] answer must be the judges. They are part of society. They do not live in splendid isolation.
They are keenly aware of what is going on in the counts and by their training and tradition, they stand
aloof from the social and political controversies that must arise as the nation moves forward. And in
assessing the societal backdrop, they are not (as some may erroneously think) finding facts for or
against any party to the action nor awarding relief or penalty. These later are matters of evidence and
proof in the usual way. What the judges do in their assessment is simply to look for the context in which
to apply the law and the proven facts. It may be said to be an exercise somewhat akin to the doctrine of
judicial notice.

Having said that, I come back to the question: Can the Court say that T.T.T. is independent because it
is a company incorporated under the Companies Ordinance Ch. 31 No.1 and its Articles of Association
vest authority in the Board of Directors? Suppose, just for the sake of argument, the minister
responsible does give directions on important matters and these directions are followed, then the law
becomes a joke. And to say that such matters should be proved by evidence does not really help.
Political wrongdoing is not easily capable of proof for the simple reason that all the persons involved in
such wrongdoing have no wish to incriminate themselves. This is true of secret instructions to prima
facie independent entities or to the more obvious case of corruption. It is in the vital interest of all the
parties involved to hide their wrongdoing. And this is why in the area politics, the “trail is not initially
before a Court of law (where evidence is required) but before the Bar of Public Opinion. It is this Bar of
Public Opinion, which led to the constitutional convention of resignation from office by a minister (and
sometimes the entire cabinet) and public officials. It is this Bar of Public Opinion, which requires that
statutory bodies and the like be independent. What the Bar of [end of page 15] Public Opinion is active
and public officials pay heed to it then there is no need for the Courts of law to concern themselves
about the conventions of the constitution regarding the traditional independence of these bodies. But
when these are lacking, the Courts cannot like the fabled ostrich hide its head in the sand and deliver a
judgment, which derogates from the integrity of the law. The Courts have a duty in such circumstances
to ensure that the constitutional framework is not misused.

This Court in assessing the societal background is aware that the tradition of independent statutory and

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other local bodies has not yet been fully established in this country. On the contrary I think this Court
can safely say that there is an appreciable public perception that statutory bodies are not infrequently
used as vehicles of political patronage. I must make it clear that I am not finding as a fact that this is so;
I have no such evidence before me. But I do look at it as a part of the societal background in
interpreting the constitution. And with that perception, the Courts simply cannot find as its judgment, that
such a body is independent because its institutional documents say so. That may be the correct
approach in company law or in matters of the interpretation of a particular statute but not I think, in
constitutional law. This Court has hitherto make assessment of the public perception in other
constitutional cases: see Adam Hosein v. A.G. HC 1279 of 1982 and Prakash Singh v. A.G. HC 2443 of
1982.

Mr. Daly in pressing his point that T.T.T. was a “private individual” independent of government relied
heavily on two local High Court decisions, which he says, are on all fours with the instant case. This
Court is of course, not bound by decisions of the High Court but will as a general rule follow them, and
depart from them only if convinced that the case was not fully argued or is clearly wrong. The two cases
cited by Mr. Daly are [end of page 16] Samuel v. A.G. H.C. No. 5 of 1976 and Orissa Movement v. A.G.
H.C. No. 4287 of 1983. Judgment in Samuel (supra) was delivered on the 21st April 1976 before
Maharaj (supra) was decided and was concerned solely with whether Caroni Ltd. was a “private
individual” or “an organ of the State” at a time when it was accepted that the fundamental rights section
of the constitution was directed only to “an organ of the state”. Had Lord Diplock’s broad definition been
in existence and had all aspects of the matter been full argued as have been before me, it is possible
that Cross J. would have decided differently. Suffice it to say that with the advance of the law in this
area, with the differences in functions between Caroni Ltd. and T.T.T. and with the limited arguments
before Cross J., I do not feel that I can with any assurance follow Samuel.

In Orissa Movement (supra), Collymore J. had the very same issue to resolve that I have before me,
that is, whether T.T.T. is amenable to section 14 proceedings. He referred to the case of Trendtox
Trading Corporation Ltd v. Central Bank of Nigeria [1977] 1 All E.R. 881 cited in the instant case by Mr.
Daly. That was a case on “diplomatic immunity.” Collymore J. in his judgment said:

“and it was held the bank was not an organ of government even though it exercised governmental
functions in its issue of legal tender, acted as financial advisor to government, and its affairs were under
a great deal of governmental control in that the federal executive may overrule the Board of Directors of
monetary and banking policy and on internal administrative policy...”

Collymore J. went on to say significantly, that, that case, decided on the question of diplomatic
immunity, “may not be conclusive of the issue which relates to rights under the constitution.” He then
proceeded to adopt the criterion laid down in Maharaj (supra) and concluded:

“When so tested, it becomes clear that T.T.T. can by no stretch of interpretation fall within the category
of the state or some authority by law with coercive powers.” [end of page 17]

It does not appear from the judgment whether it was argued that T.T.T. could fall within Lord Diplock’s
“...some other public authority” nor were the arguments on “state action” propounded by Mr. H. Phillips
in the instant case (and which I shall deal with later) raised before the learned judge. In the
circumstances I do not feel that I should consider myself bound by Orissa but that I should consider the
issue afresh taking into consideration all the arguments raised and of course, giving to Samuel and
Orissa the regard to which they are entitled.

Mr. Daly moving from that “personality test” to the “central” and “function” test cited three cases which
he submitted should guide the Court viz: Tamlin v. Hannaford [1949] 2 All E.R. 327 CA; Mellenger v.
New Brunswick Development Corporation [1971] 2 All E.R. 593 CA; and Trendtex Trading Corporation
v. Central Bank of Nigeria (supra). In Tamlin the question was whether the British Transport
Commission created by the Transport Act 1947 was an agent of the crown. This depended “on the true
construction of the Transport Act 1947" (see page 328); and the Court held that....the British Transport
Commission was not a servant or agent of the crown. Mallenger and Trendtax (supra) were cases of
diplomatic immunity in the field of international law. Lord Denning in his judgment voiced his view of the
difficulties attaching to the question because of the schools of thought then existing and to the changing

8
trend in various countries to the question of diplomatic immunity from one of absolute immunity to a now
generally accepted restrictive immunity. In the end he said:

“In these circumstances, I have found it difficult to decide whether or not the Central Bank of Nigeria
should be considered in international law a department of the Federation of Nigeria, even though it is a
separate legal entity. But on the whole, I do not think it should be.

This conclusion would be enough to decide the case, but I find it so difficult that I prefer to rest my
decision on the ground that there is no immunity in respect of commercial transactions, even for a
government department.” (emphasis added) [end of page 18]

Stephenson J.A. rested his decision on the ground that the bank is not an emanation, arm, alter ego or
department of the State of Nigeria” and Shaw J.A. decided:

“In my judgment, therefore even if the Central bank of Nigeria is a part of the government of that
country, it is not immune from suit in respect of the subject matter of the present action. In coming to
this conclusion I should make it clear that I regard the intrinsic nature of a transaction rather than its
object as the material consideration in determining whether entering into that transaction is a
commercial activity or an exercise of sovereign authority.”

What emerges from Mellenger and Trentex is that sovereign immunity falls within the field of
international law, which is of no little difficulty and is even now in the process of changing with changing
circumstances. Reviewing the three cases, I do not think that the approach of the Court in determining
whether a corporation is an agent of the state under a particular statute or whether a legal entity is
entitled to diplomatic immunity under international law can be helpful in deciding the question in the
instant case - whether T.T.T. is caught by Lord Diplock’s test or is otherwise amenable to section 14
proceedings in the field of constitutional law, and in particular in the area of entrenched fundamental
rights. What is noteworthy is that the judges examine in detail the actual acts of the corporation to
determine whether they were caught by “sovereign immunity.” They did not adopt any a priori approach.
Mr. Daly also cited Trade Exchange (Caylon) Ltd v. Asian Hotels Corporation [1981] Sri L. R67. He
adopted the ratio in the case albeit admitting that it concerned the prerogative writ of certiorari. The
issue was whether the respondent was a public body and amenable to certiorari. It was held:

“The respondent was a public commercial company incorporated under the Companies Ordinance and
the fact that most of the capital was contributed by the government or that shares were controlled by the
government did not make it an agent of the government. The incorporated company was recognised by
the [end of page 19] law as a juristic person separate and distinct from its members and was an
independent body corporate carrying on commercial activities. Its decision made in the course of its
business cannot be reviewed by a superior Court by way of a writ of certiorari.” (Emphasis added)

The Supreme Court of Sri Lanka decided this case in accordance with English common law principles
relating to administrative law. I advert to what I said earlier about the danger of applying such principles
and would merely add: whether a purely commercial enterprise as the respondent in Trade Exchange
(supra) is a “public body” what could attract the prerogative writ of certiorari in the field of administrative
law is a completely different question from whether T.T.T. in dealing with fundamental rights and
freedom entrenched in the constitution is a “public authority” in the field of constitutional law. I do not
think Trade Exchange offers any guidance.

Mr. Hudson Phillips argues quite as forcefully as Mr. Daly argues contra, that T.T.T. is amenable to
section 14 proceedings. He submits that the test must not depend on any formalistic private/public
dichotomy or on any sterile test of control but rather more on functional considerations concerning the
extent of state involvement in T.T.T. and the public character of the particular function, which is being
attacked. As I understand it, he submits (i) that T.T.T. is a public authority within Lord Diplock’s
definition; and (ii) whether so or not, the challenged acts of T.T.T. are “stable action” and therefore,
amenable to section 14 proceedings.

9
Mr. Hudson Phillips relied heavily on authorities of the Supreme Court of the U.S.A. for his “state action”
submission. My approach to decisions of foreign Courts is stated in K.C. Confectionary v. A.G. H.C. No.
1279 of 1982 where I said:

“Decisions of the Indian Courts are frequently cited in our Courts on constitutional matters. However,
the learning on the constitution of another country, unless it is basically similar, can hardly produce
much assistance to the interpretation of our constitution and even when it does, it is to [end of page 20]
approach with caution. I must not be understood to be saying that authoritative interpretations of other
constitutions may not be helpful but it has to be firmly kept in mind that the Courts task is to interpret the
constitution of Trinidad and Tobago and it should be careful not to transport the interpretation of another
constitution dissimilar in scope and content into it.

While the actual decisions however, may not be helpful, the constitutional principles from which the
actual decision flows are of assistance where the constitutional values are the same or similar; for it is in
the area of the constitution and constitutional law that the heart of a country is opened and its sense of
right and justice breaks forth. Thus we can lack to foreign countries with constitutions, which entrench
the fundamental rights and freedoms since we can be sure that (originally at least) they recognise the
underlying spiritual and moral tenets, which enlighten our constitution.

The cases cited by Mr. H. Phillips are: Evans v. Newton 382 U.S. Rep. 296; Burton v. Wilmington
Parking Authority 365 U.S. Rep. 715; Jackson v. Metropolitan Edison Co. 419 U.S. Rep. 345; Columbia
Broadcasting System v. Democratic National Committee 412 U.S. Rep. 94 and Red Lien Broadcasting
Co. v. Federal Communications Commission 395 U.S. Rep. 367. These were all cases under the first
and fourteenth amendments to the constitution of the U.S.A., which are analogous to the fundamental
rights provisions enshrined in our constitution. The first amendment provides that “congress shall make
no law abridging the freedom of speech or of the press.” The fourteenth amendment provides that “no
state shall.... deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.” These amendments have been construed
as imposing restraints not only on the traditional organs of government but on “government action” and
“state action” even when carried out by private individuals. This concept of “government action” or “state
action” (hereinafter referred to as “state action”) arises where “conduct that is formally ‘private’
(becomes) so entwined with governmental policies or so [end of page 21] constitutional limitations
placed upon (governmental) action:” Evans v. Newton (supra). Further, the concept postulates “that any
action of the government, through any of its agencies, approving, authorising, encouraging or otherwise
supporting conduct with, if performed by the government, would violate the constitution, constitutes
illegal governmental involvement in these pertinent private acts...that subsequently occur:” Adickes v.
Kress Co. 398 U.S. 144.

The question arises whether this concept of “state action”, which has been established as part of the
constitutional law of the United States, should be followed by our Courts. The underlying principle is
easy to understand. The first and fourteenth amendments enact fundamental rights provisions directed
against the state....protecting the individual from government interference. Though expressly injunction
“Congress” and the “State,” the amendment are directed primarily towards governmental action and not
governmental organs. In most cases of course, governmental action would be in the hands of
governmental organs and there would be no difficulty but as “government” extends its activities into
fields not formerly governmental, the concept becomes necessary to assure to the citizen the protection
contemplated by the first and fourteenth amendments.

I see no reason why the concept of “state action” should not apply in our constitutional law. It is a
concept based on common sense and wisdom. Our fundamental rights prohibitions are also directed
against the state … protecting the individual from governmental interference; they confer no analogous
protection on the State. The constitution in my view cannot and does not permit of a situation where
government can allocate to prime facie private bodies activities it deliberately brings within the public
portfolio and which have the potential to infringe fundamental rights and freedoms and then disclaim
responsibility when those rights and freedoms are infringed. Government has a duty to uphold the
fundamental rights and freedoms and cannot so easily shift the burden to others who may not be [end
of page 22] required by law to honour such rights and freedoms and who may not even be inclined to do
so.

I hold then, that the concept of “state action” is a part of the constitutional law of our country.

10
From the foregoing, it follows that Mr. Daly’s point in limine based on the “personality” of T.T.T. must
fail. I proceed now to the facts in order to determine whether T.T.T. is a “public authority endowed by
law with coercive powers” and/or whether the challenged acts constitute “state action” thus making
T.T.T. amenable to section 14 proceedings.

The facts which are largely not in dispute and which I find are:

1. It goes without saying that both radio and television broadcasting utilize a natural resource - the
electro magnetic spectrum - that is part of the public domain. T.T.T. is merely granted a temporary use
of this valuable resource under the Wireless Telegraphy Ordinance. Ch. 36 No. 2. Ownership and
ultimate control remain in the government together with the right to grant and revoke licences to one or
more television stations to operate broadcast frequencies.

2. The broadcasting industry has become what is potentially one of most, if not the most efficient and
effective “market place” of ideas ever devised. Indeed the electronic media are today one of the public’s
major (perhaps its prime) source of information. Television in particular is recognised in the modern
world as the most powerful communication medium for the dissemination of information and for the
influencing and formation of views. And the free flow of information is essential to our parliamentary
democracy and therefore, a matter of concern to government. Government will be failing in its duty if it
done not regulate the electronic media so as to ensure the free and fair flow of information from all
legitimate sources over the airwaves. [end of page 23]

3. T.T.T. is a company registered under the Companies Act, Ch. 31 No. 1. It operates the only television
station permitted by the government to broadcast in the country. It is wholly owned by and on behalf of
the government. Its Annual Return made up to 22nd September, 1977 and filed with the Register of
Companies indicates the following shareholding:

(a) The Minister of Finance of the Government of Trinidad and Tobago 326, 998 shares

(b) Frank Barsotti, Civil Servant of the Ministry of Finance 1 share.

(c) Bazil Cozier, Civil Servant of the Minister of Finance 1 share.

The shareholders above hold their shares for and on behalf of the government of Trinidad and Tobago.

4. Government has up to the present time refused to grant any license other than to T.T.T. to operate a
television station. By letter dated 27th June, 1978, Southern Television Network Ltd. applied for a
licence to operate such a station. A reply dated the 11th January, 1979 informed the applicant that “the
matter is being considered” and another dated the 24th February, 1982 assured.... “I shall be pursuing
the matter as expeditiously as possible.” No further communication has been received from government
and no affidavit has been filed by the attorney general disputing or explaining the facts set out above or
giving any indication that government is in any way dealing with or proposes to deal with the application.
Mr. Hudson Phillips points to this state of affairs as supportive of his contention that government’s
intention is to monopolies the electronic media for its own partisan benefit through the use of T.T.T. The
Court was faced with a somewhat similar position in K.C. Confectionary v. A.G. (Supra) in which I said:
[end of page 24]

“In this case, despite reminders in one form or the other including invitations and visits by the Ministry of
Industry and Commerce and the Prime Minister to its fact, the applicant has received no reply to its
application over a period of seven years except the stereotype form that the matter is receiving
attention. The Court may not always have the power to compel public officers to exercise their functions
but if a prime facie case is made out for the exercise of a particular function and the official neglects or

11
refuses to act, then the Court can infer that he has no good reason for his inaction and in appropriate
cases, can draw the further inference that his inaction is actuated by improper motives.”

In that case I went on to hold that the Minister:

“.... had simply refused to properly deal with the application; and refusing to do so for a period of seven
years must be a refusal of the application itself.... And another inference must inevitably follow viz: that
the Minister has no good reasons for his refusal.”

And later on:

“....I would find on the facts of this case that the applicant has satisfactorily and at the least established
that the Minister ‘did not act honestly and reasonably’. I would go further and say that the treatment of
the applicant showed a ‘lack of bonafides’ and closely approaches ‘mala fides,’ if not disclosing ‘mala
fides.’ I cannot see what other inferences can be drawn from the undisputed facts.”

I must regretfully come to a similar conclusion in this case and I find that government has refused to
consider Southern Television’s application without good reason and in so doing has refused the
application itself or at the least, has shown a marked reluctance to grant it. I reach this conclusion with
reluctance but it seems to me that there is no alternative on the undisputed facts. Mr. Beckles did not
argue that an affidavit in answer was unnecessary nor that the conclusion I have reached is untenable.
Government is to govern for the peace, order and good government of the country. Good government
includes a concern for the interests of the citizen and in this instance, would include dealing
expeditiously or within a reasonable time with applications like that of Southern Television.... and giving
a reason for or explaining any delay, especially so when the matter is raised in the [end of page 25]
High Court of Judicature. In litigation between the State and a citizen, government is placed in a special
position, a position requiring that it be open and fair in the conduct of its case. This Court expresses the
hope that the practice of the Attorney General (if practice it is) of not filing affidavits in cases such as
this will be reconsidered.

5. T.T.T. is a State Enterprise under the portfolio of the Minister of State Enterprises of the government
of Trinidad and Tobago and is subject to the scrutiny of the Public Accounts (Enterprise) Committee of
the House of Representatives pursuant to section 119 (8) of the Constitution.

6. T.T.T. broadcasts a minimum of 12 hours per day and the content of its programmes is divided
between advertisements, pre-recorded films and shows, live shows, news and programmes prepared
for transmission by the television unit of the Ministry of Information. These latter programmes are “Face
of the Nation,” broadcast from 6.45 to 7.00 p.m. Monday to Friday and “National Development”
broadcast on Mondays, Wednesdays and Fridays from 7.45 to 8.00 p.m. T.T.T. also makes time
available for addresses to the Nation on matters of national importance by representative of the
government, government departments and statutory corporations. T.T.T. is used by government to
negate and/or rebut criticism of government policies, state-owned corporations and other government
departments when these criticisms have been disseminated by media other than television.

7. The government does not pay for the time used by it on television.

8. The government over the past years, since 1971, through its various Ministers, stated that it would
appoint an independent television authority for the regulation of television broadcasting in Trinidad and
Tobago. To date no such authority has been appointed and no proper rules (or at all) have been laid
down or set out to regulate television broadcasting under [end of page 26] licence by the government to
ensure that T.T.T. the state owned monopoly, operates in a way not infringe the alleged rights of the
applicant.

12
9. Prior to the last Annual General Meeting of T.T.T. held on 27th May, 1982, the Secretary of T.T.T.
received a letter from the Minister of Finance in his capacity as Corporation Sola saying who were going
to be appointed as directors for the new term. She concluded from this that the existing directors were
retiring; and they in fact, did so. It is a fair inference in the absence of anything to the contrary, that
directors of T.T.T. are appointed by the Minister of Finance.

10. The Prime Minister of Trinidad and Tobago has over the years in his annual budget speeches made
reference to the various state enterprises including T.T.T. These speeches in so far as they relevant to
the issue, can be looked at as background - to ascertain (if it can be ascertained from them) what is
government’s policy and what it considers is its relation to and regarding state enterprises. Attached
hereto are extracts from the budget speeches for the years 1978 to 1984 - Appendix 6.

11. Government has over the years been increasing the scope of its activities beyond the traditional
governmental functions and has as the same time been creating new entities to which it allocates these
activities. The Minister of Finance (Incorporation) Act 1973 is illuminating. Its schedule lists several
“private” bodies in which the government is a shareholder. Included in the list are such bodies as
Trinidad and Tobago Development Finance Co. Ltd., Textel, T.T.T. Trinidad and Tobago Mortgage
Finance Co. Ltd., and British West Indian Airways. There have been more since then. What is obvious
is that the government is increasing the range of activities in which to engage and is in many cases,
managing these activities through “State Enterprises.” The Prime Minster’s budget [end of page 27]
speeches - Appendix B - clearly demonstrate government’s control over State Enterprises in matters of
overall policy and also in certain particular matters. And this certainly must be so. Government cannot
expand public monies in various enterprises and not be concerned about their overall policy and
management. Government of course, has the right to order its affairs and manage the public business
in any way it considers best but it cannot in so doing, by an institutional device escape its duty to uphold
the fundamental rights and freedoms enshrined in the constitution. The fundamental rights and
freedoms of the citizen are much too vital to his freedom, individual and national, to permit of this. An
example (seemingly ludicrous) illustrates the point. If government were to incorporate a Police Services
Co. Ltd. under the Companies Ordinance Ch. 31 No. 1 and allocate to it all police activities, would the
Courts entertain a submission in limine or at anytime for that matter, that such a company is a “private
individual” and beyond the reach of section 14? Certainly not; the Court would dismiss it out of hand.
And therein, in my view, lies the inherent weakness of Mr. Daly’s argument.

Against that background, I now come to the particular facts constituting the challenge to the
respondents in this motion:

12. By letter dated 8th December, 1982, T.T.T. pursuant to its declared policy - Appendix A offered the
Organization for National Reconstruction (hereafter called “O.N.R.”) three political broadcasts of 10
minutes duration each on 14th 21st and 28th December, 1982 at 7.45 p.m. Clive Pantin, First Vice
Chairman of the O.N.R. pre-recorded the first speech on Monday 13th December, 1982 and this was
broadcast on Tuesday 14th December, 1982. The applicant was chosen by O.N.R. to do this second
broadcast and it is with reference to this that the complaints in this motion arise. The applicant prepared
his broadcast script and it was [end of page 28] pre-recorded at 1.30 p.m. on the 20th December, 1982.
He deposes that it was so recorded without any objection by T.T.T. and goes on to say:

“20. On the 21st December, 1982 the first-named respondent, through the said Programme Director
Barsotti, advised that it would not broadcast the recorded statement for the following reasons: -

(a) The first-named respondent objected to the statement by the applicant that he had “an extremely
short time because of government’s broadcasting policy with regard to political parties.” The ground of
this objection was that it was the broadcasting policy of the first-named respondent and not of the
government;

(b) The applicant stated that in his view the budget speech by the Minister of Finance on Friday 17th

13
December, 1982 in effect stated that “government’s investment in steel has failed.” This statement was
objected to by the first-named defendant on the ground that it was inaccurate;

(c) The general manager of the first-named respondent objected to the statement by the applicant that
“it would appear that for the individual building an average three (3) bedroom flat, costs would escalate
by about $10,000.00 was over estimation;

(d) The first-named respondent objected to a deviation by the applicant from the written script provided
in the statement recorded by him by the inclusion of a reference to the local government elections due
to take place in 1983. The ground of this objection was that it was “canvassing” and that it was a
variation from the written script, which had been submitted;

(e) That the parliamentary debate on the budget speech was due to commence on the 21st December,
1982 and that the first-named respondent had decided that the statement by the applicant was not to
broadcast before the first-named respondent had shown on television statements being made in the
parliament.

(f) That the statement by the applicant could not be broadcast on the 21st December, 1982 as it would
have to be deferred to permit statements by the government and the opposition in parliament to be
made first.”

13. John Barsotti, Programme Director of T.T.T. disputes that the script was accepted without any
objection. He says that he read the script on the 20th December, 1982 in the presence of the applicant
and: [end of page 29]

“Advised the applicant that he would have to make certain changes in his text. I objected to his
statement that he had ‘an extremely short time because of government’s broadcasting policy with
regard to political parties’ as this was false, it being the company’s policy and not that of the
government. I objected to his statement that ‘essentially the budget says.....government’s investment in
steel has failed’ on the ground that it was false and inaccurate. I told him the two statements would have
to be altered. He agreed to change them before taping.”

It really makes no difference whether Barsotti objected before or after the pre-recording. The fact is that
objection were made and T.T.T. was not prepared to do the broadcast before changes to the objected
statements were effected. Barsotti denied that he found the reason at 12 (c) above objections or that it
was one of his reasons for not broadcasting the applicant’s script. He deposes:

“On or about the 28th December, 1982 I met with the applicant, the said O’Brien (General Manager of
T.T.T.) and the said Pantin (vice chairman of O.N.R.) to consider a new script presented by the
applicant. O’Brien agreed with the reasons for not showing the applicant’s previous broadcast and
observed that if it were up to him he would also reject the statement appearing in both the previous
broadcast and the new script ‘that it would appear that for the individual building an average three
bedroom flat, costs could escalate by about $10,000.00' but that it was merely an observation and not a
reason for not arising the previous broadcast.”

Barsotti is saying in effect that this question came up only on the 28th December 1982. The Notice of
Motion filed on the 23rd December, 1982 however, expressly includes this complaint at page 3(c). It
seems that Barsotti is mistaken and in the circumstances I accept the applicant’s version on this
question as the more probable.

14. As to the variation from the script at 12 (d) above, Barsotti merely deposes that the variation was”....
against the terms of” Appendix A. As to the reasons at 12(e) and 12 (f) above, Barsotti deposes that on
the 28th November, 1982: [end of page 30]

14
“I met with the said O’Brien and Nicholas Inniss, the Chairman of the company later that afternoon.
Inniss pointed out that as the parliamentary debate on the budget speech was due to begin the
following day, the 20th December, 1982, it was his feeling that the company should not broadcast the
applicant’s address before airing the views and comments of members of parliament, government as
well as opposition on the budget. At the time I agreed to the applicant’s broadcast I did not know when
the budget debate would begin. In fact I had not considered the point of view expressed by the
chairman but when he expressed it I agreed with it.”

Such are the facts on this motion and I proceed to The first question - whether T.T.T. is a “public
authority endowed by law with coercive powers.”

What emerges from the evidence is a picture of T.T.T. being a “state enterprise” under the control of the
Minister of State Enterprises and engaged in commercial and political broadcasting. Its total
shareholding is owned by government which therefore, has power to (i) appoint its directors and actually
does; (ii) receive and approve its Annual Report and Annual Financial Statements at its regular Annual
General Meeting and I take it, actually does: (iii) approve its annual budget and I take it, actually does;
(iv) issue general and special instructions to the directors on the management of the company but this,
both Mr. Daly and Mr. Beckles insist it does not do or perhaps to put it more accurately, that there is no
evidence that it does so. It is trite to say however, that in a “private company” the real power lies with
the shareholders. “He who pays the piper calls the tune” is still the general rule in the real world of
today. The picture also shows T.T.T. engaged in governmental and political broadcasting, an area
surely of vital interest to the public; and providing regular broadcast slots at prime time to the
government free of charge. This is not consistent with a purely commercial company dealing at some
length with the government; and in the absence of any reason for this special treatment, it shows that
the government enjoys a favoured position with T.T.T. on that there exists some special [end of page
31] relationship between them. And, in the field of political broadcasting the picture portrays T.T.T.
being granted, or taking to itself, a monopolistic and vital role in the area of fundamental rights and
freedoms. The other side of the picture reveals a failure by the government over the years to formulate
a broadcasting policy and in particular, to regularize the television media to accommodate political
broadcasting. It has seemingly preferred to allow T.T.T. to occupy a monopolistic position and to control
political broadcasting at least for the time being. The inference tat it has acquiesced and approved and
continues to acquiesce and approve in this state of affairs is compelling. Mr. Hudson Phillips submits
that the government has gone further than more acquiescence and approval; that its failure to do
anything positive is deliberate and demonstrates its”.... intention to monopolies the electronic media for
its own partisan benefit.” The recent appointment of the chairman of the board of directors of T.T.T. to
the public relations committee of the government political party (of which the Court can and does take
judicial notice) adds somewhat to Mr. Hudson Phillips contention. The position of the chairman holding
these two posts appears to be inconsistent with the constitution and constitutional values on the basis
that it is undesirable for active party members to occupy offices of authority in independent
governmental bodies, and this for obvious reasons; and also it raises the serious issues of “conflict of
interest,” a concept well known in constitutional law. Situations like this can gradually lead to the de
facto establishment of the paramountcy (please check) of the party, a doctrine alien and repugnant to
the constitution. It was with this danger in mind that this Court in Prakash Singh v. A.G. HC No. 2443 of
1982 warned:

“There is no legal authority for the interference by the officials and members of any political party as
such in the day to day administration of the government in our country. Once elected to office a decisive
and clear distinction between party and government comes into being. The cabinet becomes the
executive arm of the government of the country as a whole with a constitutional duty to [end of page 32]
administer the laws of the country for the good of all the peoples of the country whatever their political
affiliation. A political party as such is no party of the government of the country and it is undesirable, nay
unconstitutional for the party to be allowed to administer or even to seem to administer the laws of the
country. It is not infrequently heard and it is a matter of consensus of a not unsubstantial number of the
citizenry that the party officials of the party in power exercise open authority in the day-to-day
administration of the public service of this country. Such a practice is prohibited in the context of our
parliamentary form of government and leads to political patronage, nepotism and inevitably, corruption.
These are features alien to constitutional government as we know it and present grave dangers to good
government.”

15
The same warning extends to cases of active party members holding positions of authority on the
governing bodies of independent state enterprises.

Following on this, the question naturally arises: why was such an appointment so fraught with
constitutional impropriety made? Was it because of ignorance or a disregard for the constitutional
niceties or was it an attempt to exercise some influence or measure of control over T.T.T. I do not of
course, have the answer nor do I think it necessary to answer the question. Looking at all the facts, I
would confine myself to a finding that the government has shown a reluctance to regulate the electronic
media and has thereby frustrated the legitimate need and desire of recognised opposition political
parties for reasonable and regular political broadcasting. And in its dealing with the entire matter, the
government in my view, has demonstrated a lack of bona fides, I may add that in coming to these
findings I have required of myself the higher standard of proof although I do not believe this to be
necessary.

As I indicated earlier, Lord Diplock in my view, used the phrase “public authority” in a very broad sense
to mean any entity, however constituted, in which the government as a matter of deliberate policy,
decided in the public interest to participate in a substantial way, whether financially or otherwise. Using
this meaning as a guideline and considering [end of page 33] that T.T.T. operates in an area where
several fundamental rights and freedoms are involved, rights and freedoms which the government are
in duty bound to uphold, I am of the view that T.T.T. on all the evidence is a “public authority" for the
purposes of Lord Diplock “test,” and I so hold. I would go further. If Lord Diplock’s "test" carries a more
limited meaning, I would hold that, that limited meaning is not exhaustive and that the changing face of
government warrants its enlargement along the lines indicated by this Court. But I do not pursue the
matter further since there is no need to do so.

Mr. Daly in his submission raised the question of "control" and argued that T.T.T. was not in any way
controlled by the government. I take him to be saying that if government exercised any appreciable
control over T.T.T. then it would be caught by section 14 of the constitution. Approaching the matter
from the question of control, it is obvious that the potential control, the real control is with government.
But the constitution itself gives some assistance on the question of control of State Enterprises. Section
119(a) provides:

"For the purpose of subsection (8) and Section 116 (3) an enterprise shall be taken to be controlled by
the State if the government or any body controlled by the government -

(a) exercises or is entitled to exercise control directly or indirectly over the affairs of the enterprise;

(b) is entitled to appoint a majority of the Directors of the Board of Directors of the enterprise; or

(c) holds at least 50% of the ordinary share capital of the enterprise, as the case may be.

That section does not deal specifically with Lord Diplock’s "test" but it does indicate a constitutional
concept of "control". For myself, I cannot find no better definition of "control" in the realm of
constitutional law and therefore, in dealing whether a body is [end of page 34] a “public authority" within
Lord Diplock’s "test". Using this definition, T.T.T. is clearly a "public authority".

The only question which now remains to be answered on this particular issue is whether T.T.T. is
"...endowed by law with coercive powers.” Both counsel readily agree that "coercive powers" is not
limited to the physical - to a police power or physical force or restraint. Mr. Hudson Phillips argues that it
includes the power to influence views or thoughts. Mr. Daly submits that it means a compulsive power.
He concedes that the constitution should be liberally construed but argues that hero "coercive powers"
mean (i) the ability to compel or prevent the exercise of a person’s will or (ii) to leave a citizen with no
choice but to do your bidding. Lord Diplock was, it seems to me, using the words in the broadcast
possible sense. He was dealing with fundamental rights and therefore, had in contemplation any type of
power, which could infringe those rights. It would include a power to restrict the freedom of the
individual to choose as Mr. Daly concedes; a power that can say ... "Take it or leave it" because this is

16
no real choice. And in the field of political broadcasting, this is exactly T.T.T.’s position. As a matter of
fact, this is what this case is all about. The applicant and O.N.R. have to take App. A or leave it. They
are given no choice whatever.

For the reasons above, I hold that T.T.T. is a public body endowed by law with coercive powers and is
therefore, amenable to 14 of the Constitution.

I next move on to:

The Second question - whether the challenged acts of T.T.T. constitute “state action" making it
amenable to sec. 14 proceedings.

I have already held that the concept of "state action" is applicable in our constitutional law. What I have
to find is a nexus between government and T.T.T. of such a close and positive [end of page 35] nature
as to impel a conclusion that the government, because of its duty to uphold the fundamental rights and
freedoms, should be hold accountable under section 14 of the Constitution for the challenged acts. Lot it
be said right away that the task is not an easy one nor can any test be clearly enunciated. It is a matter
of weighing all the evidence in what more often than not turns out to be a delicate balance and coming
to a conclusion. It is in such cases that the judge’s intuitive "feel" for the law and his wisdom comes into
play.

The Supreme Court of the U.S.A. has frequently dealt with this question and we can derive some
assistance and guidance from its decisions being cautious of course, in the exercise for the reasons
already stated Brennan J. in Columbia Broadcasting (supra) adverted to the difficulty and said:

"Thus, the reach of the First Amendment depends not upon any formalistic ‘private-public’ dichotomy
but, rather, upon more functional considerations concerning the extent of governmental involvement in,
and public character of, a particular ‘private’ enterprise. Only by sifting facts and weighing
circumstances can the non-obvious involvement of the (Government) in private conduct be attributed its
true significance! And because of the inherent complexity of this case-by-case inquiry, this Court has
never attempted the ‘impossible task’ of formulating an infallible test for determining in all instances
whether particular conduct must be deemed private or governmental."

This Court finds no difficulty in agreeing with those observations.

And now to apply the facts already found: The airwaves are a part of the public domain and must in the
final analysis be regulated by government. Licences are required to operate and T.T.T. as a matter of
fact operates under governmental licence. But licences are granted only for the temporary use of this
valuable "public property" for terminable periods. Ownership and ultimate control remain vested in the
State. Such public "ownership” of an essential element in the operations of a private enterprise is of
course, an indicium’s of "State" involvement. In Burton (supra) the Court emphasised the fact of public
ownership in the case of a privately owned restaurant leasing space in a building owned by the State
and operating a "colour-bar" therein. The Court held that because of the public ownership of the
building, the State had elected to place its power, property and prestige behind the actions of a privately
owner restaurant and viewing the relationship in its entirety, the Court concluded that the State had so
far insinuated itself into a position of interdependence with the restaurant that it must be recognised as
a joint participant in the challenged activity. [end of page 36]

A second indicium of "State involvement" is the ownership of T.T.T. itself by the government and the
legal consequences flowing therefrom. Thus the government owns the airwaves and T.T.T. itself and
possesses therefore, real control over T.T.T. by virtue of its ownership, to which reference has already
been made.

A third indicium of "State involvement" derives from the direct dependence of T.T.T. upon the
government for its right to operate broadcast frequencies. And further, from the monopoly position,
which T.T.T. enjoys as a result of the preferred position conferred by the government. In one U.S. case
Burger C.J. said:

“... a broadcaster seeks and is granted the free and exclusive use of a limited and valuable part of the

17
public domain; when he accepts the franchise it is burdened by enforceable public obligations.”
(emphasis added).

In this case T.T.T. enjoys a monopoly position and Burger’s C.J. observations (which I adopt) applies all
the more. In another U.S. case it was said:

“... when authority derives in part from government’s thumb on the scales, the exercise of that power by
private persons becomes closely akin, in some respects to its exercise by Government itself."

This observation applies, a fortiori, to the instant case. Here we are in an area where the observance of
vital fundamental rights and freedoms are delegated, so to speak, by the government to a private body
in a monopoly situation. T.T.T.’s action in my view, is not only closely akin to but becomes the
government’s action for which the government must be responsible.

The basic principles declared in the decision of the U.S. Courts referred to herein are well founded on
constitutional values known to our constitutional law and are therefore, applicable. On all facts of this
case - those emphasised in this part of my judgment and those recounted earlier - it is clear to this
Court that the government has tacitly approved and at the least acquiescence in the challenged [end of
page 37] action. The government has the power to correct the challenged action by regulating the
broadcasting media and particularly, the political broadcasting sector but has preferred to take no action
and has advanced no reason for its inaction. In the final analysis, I find that a sufficiently real and
positive nexus has been established between the Government and the challenged acts so as to
constitute those acts “state action", thus making both respondents herein amenable to Sec. 14
proceedings.

The first issue is accordingly determined in favour of the applicant. T.T.T. and consequently the state
are amenable to section 14 proceedings under the constitution.

Issue 2 Has T.T.T. (and consequently the State) infringed any fundamental right or freedom of the
applicant:

Mr. Hudson Phillips submits that the Motion attacks three things:

(i) It alleges specific infringements, which if proved, would entitle the applicant to constitutional redress.

(ii) It challenges the policy of T.T.T. as contained in its policy document - Appendix A.

(III) In the context of T.T.T. being a creature of the State and being the only available means of
broadcasting in Trinidad and Tobago, it seeks an order that both respondents be required to publish
and make available a policy (other than Appendix A) which guarantees to the applicant the fundamental
rights infringed in relation to television broadcasting in Trinidad and Tobago.

Mr. Daly meets the arguments of Mr. Hudson Phillips with inter alia the general submission that to
succeed in Sec. 14 proceedings "there must be some evidence of an unreasonable attack on the
freedom [end of page 38] of the individual ... that the applicant must be shown to have been
disadvantaged or prejudiced in some unreasonable way ... and that only unreasonable or malicious or
apparent restrictions on constitutional rights can attract a remedy under the constitution." Once any act
of the State "appears prima facie to be reasonable" there can, he argued, be no redress. He did
concede that "if the evidence raises a suspicion of infringement of the fundamental right of the citizen by
the State, the Court could find for the citizen on slender facts". Mr. Daly went on in particular, to submit
that the evidence:

(1) Appendix A is the product of T.T.T. and is perfectly reasonable.

18
(2) The applicant accepted the benefit of Appendix A and he cannot approbate and reprobate.

(3) To broadcast on T.T.T. is not an integral part of the right to express political views and of the
freedom of thought and expression and the applicant must therefore, fail under his challenge to section
4(e) and (i) of the Constitution.

Mr. Beckles, as in issue 1 adopts all the submissions made by Mr. Daly.

The applicant’s attack comes under section 4 (d) (e), (i) and (k) of the Constitution. It is convenient at
this stage to refer these provisions:

“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: -

(d) the right of the individual to equality of treatment from any public authority in the exercise of any
functions;

(e) the right to join political parties and to express political views; [end of page 39]

freedom of thought and expression;

(k) freedom of the press."

Sec. 4 is the "heart" of the Constitution and since this case concerns some of the rights and freedoms
enshrined therein, it may be appropriate to recall briefly the underlying constitutional values, which must
ever lie in the breast of the constitutional Court. The constitution opens with the solemn affirmation "that
the Nation of Trinidad and Tobago is founded upon principles that acknowledge the supremacy of God,
faith in fundamental human rights and freedoms, the position of the family in a society of free men and
free institutions, the dignity of the human person and the equal and inalienable rights with which all
members of the human family are endowed by their creator" and continue with the recognition "that men
and institutions remain free only when freedom is founded upon respect for moral and spiritual values
and the rule of law". The Constitution then proceeds to enshrine the particular fundamental rights and
freedoms and thereafter goes on to set down the machinery of government. Underlying the Constitution
therefore, is the supremacy of God, spiritual and moral values and the rule of law. It really is predicated
upon an enlightenment of spirit, which unfortunately, sits uneasily with power … and the expediency,
which sometimes guide political governors. There will always be this conflict between the liberty of man
contemplated by the Constitution and the instinctive desire that lies in the hearts of governors to
dominate. Philosophical as this may sound, it must ever lie in the judicial breast in constitutional matters
for it is spiritual and moral values, which keep a people free and strong. Throughout the ages, men of
wisdom, philosophers and learned judges of the law have all warned against the potential evil that ever
walks with power. Thomas Jefferson enunciated that” … there are certain portions of rights not
necessary to enable (our governors) to carry on an effective [end of page 40] government, and which
experience has nevertheless proved they will constantly be encroaching on, if submitted to them; that
there are certain fences which experience has proved peculiarly efficacious against wrong, and rarely
obstructive of right, which yet the governing powers have ever shown a disposition to weaken and
remove “... and so governing powers will be no less disposed to be aggressive when chosen by
majorities than when selected by accident of birth, or at a will of privileged classes. Justice William O.
Douglass of the Supreme Court of the United States of America in speaking about power said that
"those in power only want to perpetuate it"; and in Columbia Broadcasting (supra) he opined in the
same vein:

19
“Experience has shown that unrestrained power cannot be trusted to serve the public weal even though
it be in government hands. The fate of the First Amendment should not be so jeopardized. The
constitutional mandate that government shall make “no law" abridging freedom of speech and of the
press is clear; ... the orders and rulings of the Commission (a body created by Congress) are covered
by that ban: and it must be carefully confined lost broadcasting - now our most powerful media - be
used to subdue the minorities or help produce a nation of people who walk submissively to the
executive’s notion of the public good.”

It is because of this proclivity of human nature to hold on to power by fair means or foul that
fundamental rights and freedoms are entrenched in the Constitution.

Coming back: the Constitution then is directed to two major areas of national life (i) the conduct of our
governors in the exercise of the powers and duties granted to them by the Constitution and other
statutes; and (ii) the machinery by which our country is governed. Our governors are to rule for the
peace, order and good government of the people and this they must do within the context of spiritual
and moral values, always remembering that God is the supreme ruler. And since much is given to
them ... much in the way of power and prestige, [end of page 41] much is required of them...in the way
of integrity and morality in public and private affairs. Prescribed therefore, are actions predicated solely
upon self-interest both personally and collectively.

Before proceeding to an examination of the specific complaints it is necessary to warn against the
tendency of attempting to lay down general “tests” or principles common to all the fundamental rights
e.g. the “direct impact” test, the “pith and substance” test or as in this case, the requirement of mala
fides as an element of the rights. The rights themselves are so diverse in nature and the facts in support
of an alleged violation must of necessity be so varied that such tests are dangerous. In every case it
must be a question of the true meaning and ambit of the particular right or freedom and whether on the
evidence, there is an interference of that right. "Every case must be judged on its own facts and in its
own setting of time and circumstance", declared Lord Porter in Commonwealth of Australia v. Bank of
N.S. Wales (supra) and he continued in regard to some economic activities and at some stage of social
development it might be maintained that prohibition with a view of state monopoly was the only practical
and reasonable manner of regulation... "supporting the view expressed earlier on that the Constitution
has to be interpreted in the context of the social conditions then existing. Lord Diplock in Maraj (supra)
referred to the rights and freedoms as "highly diversified" and in delivering the judgement of the Privy
Council in A.G. v. Errol Mc Leod P.C. Appeal No. 24 of 1982 he confirmed the case by case approach.
He said:

"The problem of defining what is included in each of the fundamental human rights and freedoms
referred to in the lettered paragraphs of sections 4 and 5(1) is best dealt with on a case to case basis."

With this warning in mind, I proceed to: [end of page 42]

The Right to Equality of Treatment Sec. 4(d):

Mr. Hudson Phillips submits:

(1) The decision that "time should not be sold for political broadcasting to (political) parties" when time is
sold for other purposes offends against the right to equality of treatment.

(2) The decision to allocate political time on the basis of the number of votes cast at General Elections
also offends against section 4(d).

Mr. Daly replies that there is no inequality of treatment shown on the evidence. Further he submits that
the applicant must show "mala fides" or some pattern of discrimination, which is absent here. Nothing
he says is present here to excite the suspicion of the Court.

20
I will first deal with the question of whether "mala fides" must be shown when moving the Court under
Section 4 (d). I dealt with this very question in K.C. Confectionery v. A.G. H.C. No. 1279 of 1982 and
concluded:

"Giving my best consideration to the matter I am of the view that there is no place for "mala fides" as
such in dealing with Sec. 4(b) and especially 4(d) of our constitution; that upon its true construction, an
applicant makes out a prima facie case upon proof of unequal treatment in similar circumstances
whereupon the onus shifts to the State to show that such differential treatment was reasonably and
justifiable made.”

I am still of that view. It is no consolation to one who has been treated unequally to say to him that such
treatment was done in good faith. And how is the ordinary citizen to prove "mala fides" by a public
officer? At the least, it is not the easiest of tasks especially where the officer hides behind a veil of
silence and boldly challenges “prove mala fides" as sometimes occur. In fact, that was the situation in
K.C. Confectionery (supra) where after refusing to deal with an [end of page 43] application for negative
listing status or even to reply to the application and several reminders for seven years, the respondent
filed no affidavit explaining why the application was not dealt with. I cannot conceive that the
Constitution contemplated an occurrence as indefensible as that without redress. If it did, it would be a
matter of the utmost gravity and the Constitution would be deficient in an area in which it is designed to
give protection. I would advert also, to what I said earlier about applying foreign or English rules of
common law to the Constitution and would re-iterate that the Constitution must be construed against the
societal backdrop of our country.

In Smith & A.G. v. Williams CA 19 1980 "equal treatment" under section 4(d) was equated to...”the right
to equal treatment in similar circumstances both in the privileges conferred and the liabilities imposed by
law ... that in other words, there should be no discrimination between one person and another if as
regards the same matter ... their position is the same" -(per Kelsick J.A.) There must in the public
service, be no favouring of one citizen over another. The public official must be fair; he must hold the
scales public benefits equally. Equal treatment does not of course, mean identical treatment. It means
similar or substantially similar treatment in similar or substantially similar circumstances and even in
similar or substantially similar circumstances there may be justifiable reason in certain cases for
treatment, which is not equal. Government is never an easy matter and it will be impossible for it to
function if a plea only of different treatment is necessary to make out a case under the equal treatment"
guarantee.

With that said I proceed to apply the facts to the law The First Submission that selling time freely, so to
speak, for [end of page 44] commercial broadcasting and not doing so for political broadcasting is not
“equal treatment". There can be no distinction between the two, Mr. Hudson Phillips says, for a politician
is the merchant of ideas, Mr. Daly argues that there is a distinction between the two and that it is
therefore, not "like being compared with like" attract Sec. 4(d). Both contentions taken separately and
apart are correct, at least, in theory, but the question must be determined in the context of the
Constitution. In my view, commercial broadcasting and political broadcasting for the purposes of section
4 (d) are essentially dissimilar. It is the political aspect of broadcasting which attracts the "state action"
concept in this case. Were T.T.T. engaged in purely commercial broadcasting then “state action"
concept may not have been held to be applicable. That alone suffices in my view, to conclude that what
is being dealt with here are essentially two different things. This submission in my view, fails. The
Second Submission is that the decision to allocate political time on the basis of the number of votes
cast at General Elections offends against Section 4(d). Mr. H. Phillips argues that once a party is
“recognised", it is entitled to "equal treatment" in the sense that the same number of political broadcasts
should be allotted to all the parties. T.T.T. does not (presumably) discriminate in the advertising time
allowed between large or small business firms or between tall and short advertiser; why should
broadcasting time be related to bigger or smaller recognised political parties based on number of votes
received, he challenges. He refers to the "absurdity" of paragraph 5 of Appendix A and pithily declares -
"Because you are small, you cannot be heard". [end of page 45]

Mr. Daly counters with the test of reasonableness. He submits that Appendix A is reasonable and that
there can be no infringement under Section 4 (d) as long as the act complained of is reasonable in the
circumstances. I agree with Mr. Daly that the test of reasonableness is applicable to Section 4(d). As
already indicated. “equal treatment" does not mean identical treatment; it means similar or substantially

21
similar treatment. But even where a case of unequal treatment is made out, it is open to the State to
show that such differential treatment was reasonably and justifiably made like e.g. in the case of a pilot
school feeding scheme of short duration in one locality.

It is clear that Appendix A lays down a policy of unequal treatment to recognised political parties. The
question is whether a particular action is reasonable in all the circumstances is not an easy one to
answer and there can legitimately be differences of opinion. As in the case of determining whether an
enactment is regulatory or prohibitive or whether a restriction is direct or only remote, "the problem …
will often be not so much legal as political, social or economic, yet it must be solved by a Court of law"
(see per Lord Porter in Commonwealth of Australia at page 310 (supra).

It can be asked: why on number of votes and not number of seats in parliament. The constitution
recognises the number of votes only in so far as they determine the successful candidate in a particular
constituency. Overall number of votes or percentages has no significance in the Constitution, which
prescribes a “first past the post”, system and not one of proportional representation, Appendix A
therefore, seeks to introduce a basis for the enjoyment of fundamental rights unknown to the
Constitution. It also suffers from what I consider to be the grave defect of excluding what may be a
legitimate [end of page 46] party on the basis of number of votes received and I think the point made by
Mr. H. Phillips is well taken - “Because you are small, you cannot be heard." Many a political party starts
small and by dint of persevering they may eventually persuade the public to the view that their
programme is for the good of the country. This is what democracy is all about. In the meantime, they
must not be shut out; they must be given an opportunity to be heard.

I find Appendix A in so far as it allocates number of broadcasts based on the percentage of votes
received to be unreasonable and unjustifiable. It seems to me that any differential treatment in the
number of broadcasts allotted to recognised political parties would suffer the same fate and that the
only reasonable course would be to allocate the same number of broadcasts to each recognised
political party.

Mr. H. Phillips in the course of his arguments posed the question: How is T.T.T. to deal with everybody?
His answer - until parliament enacts legislation to control and/or regulate broadcasting, T.T.T. cannot
discriminate whatever the yardstick it may use. I do not think that is absolutely correct. If a policy could
be formulated which was reasonable in the circumstances then, although it “discriminated", there would
be in my view no need for legislation. But in this area, it would appear that nothing short of equal
allocation of broadcast time would be reasonable. This notwithstanding, it turns out in the end that for all
practical purposes, there must be legislation regulating broadcast time for political parties if it is desired
to treat them unequally.

I should emphasise the point that I am holding that the test of “reasonableness” applies under section
4(d). It may not apply at all to other fundamental rights and freedoms and where that is so, [end of page
47] there can be no discrimination - not in the least bit - without legislation. The fundamental rights and
freedoms were entrenched in the constitution by the legislature and can only be taken away or limited in
any by the legislature.

Mr. Daly cited Commonwealth of Australia v. Bank of New South Wales (supra) to support his
submission that fundamental rights are not absolute but is subject to limitations. That case dealt with
section 92 of the Australian Constitution which provided that "trade, commerce and intercourse among
the States … shall be absolutely free"; and decided that the Banking Act, 1947, which prohibited the
carrying on in Australia of the business of banking by private banks, was invalid as contravening section
92. Mr. Daly relied particularly on the words of Lord Porter:

"It is generally recognised that the expression "free" in S. 92 though emphasised by the accompanying
‘absolutely’, yet must receive some qualification. It was indeed common ground in the present case that
the conception of freedom of trade, commerce and intercourse in a community regulated by law
presupposes some degree of restriction on the individual. As long ago in 1916 in Duncan v. State of
Queensland Sir Griffith C.J. said: ‘But the word ‘free’ does not mean extra legem anymore than freedom
means anarchy. We boast of being an absolutely free people but that does not mean we are not subject
to law’ and through all the subsequent cases in which S. 92 has been discussed, the problem has been
to define the qualification of that which in the Constitution is left unqualified. In this labyrinth there is no
golden thread. But it seems two general propositions may be accepted; (1) that regulation of trade,
commerce and intercourse among the States is compatible with its absolute freedom, and (2) that S. 92

22
is violated only when the legislative or executive act operates to restrict such trade, commerce and
intercourse directly and immediately as distinct from creating some indirect or consequential
impediment which may fairly be regarded as remote.”

The decision in that case revolved around the construction of a particular section of the Australian
Constitution and that, in the field of Trade and Commerce. It is of course, an example of the general
proposition that a prohibition expressed to be absolute may be subject to some qualification. But what
that qualification is or whether an enactment [end of page 48] or executive action falls properly within
that qualification is a problem which is a matter of construction and which "must be judged on its own
facts and in its own setting of time and circumstance" It is in pursuance of this general proposition that I
have held that section 4(d) although expressed to be absolute in terms, is never-the-less subject to the
qualification of reasonableness.

Mr. Beckles in his argument cited R v. Greenwich Borouqh Council [1983] T.L.R. Aug 3rd 1983 on the
question of reasonableness. In that case it was held:

"It was not the function of the Court to substitute its own view of the way in which the council should
have exercised its discretion for that of the council itself, and the temptation to do so had to be resisted
at all costs."

Griffiths L.J. delivering the judgement of the Divisional Court said:

"Only in a case where the decision of the council had been so outrageous that no right thinking person
could support would it be right to draw such an inference and interfere with a decision making process
that parliament had entrusted to the council."

Mr. Beckles equated T.T.T. with the "council" and argued that Appendix A was reasonable and well
within the limits of T.T.T.’s powers. That case however, dealt with the "council" exercising its statutory
authority and it is trite law that the Courts do not lightly interfere with the exercise of a statutory
discretion. The instant case is very different dealing as it is with the construction of Sec. 4(d) of the
Constitution, which confers no discretion on T.T.T. and in which the qualification of "reasonableness" is
for the Court to determine.

Mr. Hudson Phillips in attacking Appendix A, while admitting that some parts of it were necessary,
nevertheless made the point that neither T.T.T. nor the government could in any circumstances, infringe
the fundamental rights enshrined in the constitution on the ground of reasonableness or an any other
ground. He submitted that the [end of page 49] fundamental rights were entrenched and any
interference with them is possible only under section 5(1) of the constitution. That section provides:

"5. (1) Except as is otherwise expressly provided in this chapter and in section 54, no law may abrogate,
abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and
freedoms herein before recognised and declared".

And section 54 requires a final vote in parliament for the alteration of section 4 of not less than two
thirds of all the members of each house.

The true position is that the fundamental rights cannot be infringed in any way by T.T.T. or even the
Government; only parliament can do so. But first comes the question of what is the content and of the
right and this is a matter of construction. A right although expressed as absolute may as a matter of
construction, be found to be subject to qualification: Commonwealth of Australia, (supra). The test of
reasonableness applied to section 4(d) (supra) is a matter of construction. T.T.T. cannot therefore,
discriminate in any way in the area of fundamental rights and freedoms by way of policy statements
issued by the Board of Directors or otherwise. What is necessary are regulations enacted by parliament
in accordance with section 54 of the constitution (supra).

23
The right to Express Political Views and to Freedom of Thought and Expression and Freedom of the
Press: Sec. 4(e), (i) and (k):

Mr. Hudson Phillips challenges several aspects of the policy of T.T.T. outlined in Appendix A as being
offensive to the fundamental right to express political views and to freedom of thought and expression
and freedom of the press. He further challenges the [end of page 50] refusal of T.T.T. to broadcast the
applicants pre-recorded script on the grounds as found and submits that these too, infringe the
applicant’s aforementioned rights and freedom.

Mr. Daly submits that section 4(e) does not confer a right to broadcast on a particular media and that
the applicant cannot therefore, demand access to T.T.T. To succeed he says, the applicant has to show
that (a) Appendix A is the government’s policy and (b) “freedom of expression" includes the right to use
T.T.T. He cited Collymore v. A.G. [1968] 12 W.I.R 5: Collymore v. A.G. [1970] 15 W.I.R 229 PC 232;
Hope & A.G. v. New Guyana Co. Ltd. and anor. [1979] 26 W.I.R. 233; R v. Goldstein [1982] 3 All E.R.
53 C.A. 61A and Halsburys Laws (4th Edit) Vol. 18 page 879 para. 1694 Application Nos. 4750/71 and
4515.70

The challenge here is that T.T.T. as an instrument of government, has infringed fundamental rights and
freedoms, which are by their nature vital to our democracy. These rights are all so interconnected that
an attack on one very often carries negative consequences for all and I shall as a matter of convenience
deal with together.

Freedom of the Press is of particular importance today as it is usually the obvious and most effective
vehicle for the expression political views, and of thought and expression. In Columbia Broadcasting
(supra) certain observations were made which in my view, are relevant to our situation and I endorse
them. The First Amendment constantly referred to therein deals of course, with the right to freedom of
speech and of the press. Steward J. (at P. 145)said:

"Those who wrote our First Amendment put their faith in the proposition that a free press is
indispensable to a free society. They believed that "fairness" was far too fragile to be left for a
government bureaucracy to accomplish. History has many times confirmed the wisdom of their choice.”
[end of page 51]

And Douglass J. (at p. 148) opined:

"My conclusion is that TV and radio stand in the same protected position under the First Amendment as
do newspapers and magazines. The philosophy of the First Amendment requires that result, for the fear
that Madison and Jefferson had of government intrusion is perhaps even more relevant to TV and radio
than it is to newspapers and other like publications. That fear was founded not only on the spectra of a
lawless government but of government under the control of a faction that desired to foist its views of the
common good on the people. In popular terms that view has been expressed as follows:

‘The ground rules of our democracy, as it has grown, require a free press, not necessarily a responsible
or a temperate one. There aren’t any halfway stages. As Aristophanes saw, democracy means that
power is generally conferred on second-raters by third-raters, whereupon everyone else, from first-
raters to fourth raters moves with great glee to try to dislodge them. Its messy but most politicians
understand that it can’t very well be otherwise and still be a democracy;"

And he continued at p. 152:

"It is said that TV and radio have become so powerful and exert such an influence on the public mind
that they must be controlled by government. Some newspapers in our history have exerted a powerful -
and some have thought a harmful interest on the public mind. But even Thomas Jefferson, who knew
how base and obnoxious the press, could be, never dreamed of interfering. For he thought that
government control of newspapers would be the greater of two evils.”

24
I deplore ...the putrid state into which our newspapers have passed, and the malignity, the vulgarity, and
mendacious spirit of those who write them. These ordures are rapidly depraving the public tests.

It is however an evil for which there is no remedy, our liberty depends on the freedom of the press, and
that cannot be limited without being lost.’

Of course there is private censorship in the newspaper field. But for one publisher who may suppress a
fact, there are many who will print it. But if the government is the censor, administrative fiat, not freedom
of choice, carries the day.

As stated recently by Harry Kalven, Jr.:

‘It is an insufficiently noticed aspect of the First Amendment that it contemplates the vigorous use of
self-help by the opponents of given doctrines, ideas and [end of page 52] political positions. It is not the
theory that all ideas and positions are entitled to flourish under freedom of discussion. It is rather than
that they must survive and endure against hostile criticism. There is perhaps a paradox in that the
suppression of speech is part and parcel of the principle of freedom of speech. Indeed, one big reason
why policy dictates that government keep its hands off communication is that, in this area, self-help of
criticism is singularly effective … free robust criticism of government, its officers, and its policy is the
essence of the democratic dialectic - of the belief, again to quote Brandeis, ‘in the power of reason as
applied through public discussion.’ The government cannot reciprocally criticize the performance of the
press, its officers, and its polices without its criticism carrying implications of power and coercion. The
government simply cannot be another discussant of the press’s performance. Whether it will it or not, it
is a critic who carries the threat of the censor and more often than not it wills it. Nor is it at all clear that
its voice will be needed; surely there will be others to champion its view of the performance of the press.
The balance struck, then, is avowedly, and even enthusiastically, one-sided. The citizen may criticize
the performance and motives of his government. The government. may defend its performance and its
policies, but it may not criticize the performance and motives of its critics.’”

And (at page 162) Douglas J. continues:

“But the prospect of putting government in a position of control over publishers is to me an appalling
one, even to the extent of the Fairness Doctrine. The struggle for liberty has been a struggle against
government. The essential scheme of our Constitution and Bill of Rights, was to take government off the
backs of people. Separation of powers was one device. An independent judiciary was another device.
The Bill of Rights was still another. And it is anathema to the First Amendment to allow government any
role of censorship over newspapers, magazines, books, art, music, T.V. radio, or any other aspect of
the press.”

Brennan J . (at p. 183) continued in the same vein:

"Over 50 years ago Mr. Justice Holmes sounded what has since become a dominant theme in applying
the First Amendment to the changing problems of our Nation. The ultimate good he declared is better
reached by free trade in ideas, and the best test of truth is the power of the thought to get it accepted in
the competition of the market.... Indeed, the First Amendment itself testifies to our profound national
commitment to the principle that debate on public issues should be uninhibited, robust, and wide open,
and the Amendment rests on the assumption that the widest possible [end of page 53] dissemination of
information from diverse and antagonistic sources is essential to the welfare of the public. For it is only
though free debate and free exchange of ideas that government remains responsive to the will of the
people and peaceful change is affected.”

The government in a free society, must have no control over the press and especially in the modern

25
world, over the electronic press. Any control leads to censorship in one form or the other, openly or
subtly...but in whatever form or in whatever way, it remains censorship nevertheless. As Douglass J. in
Columbia Broadcasting (supra) said:

“The government power to censor the press was abolished so that the press would remain forever free
to censor the government. The press was protected so that it could bare the secrets of government and
inform the people. Only a free and unrestricted press can effectively expose deception in government.
And paramount among the responsibilities of a free press is the duty to prevent any part of the
government from deceiving the people.”

The government must not, no matter how much and no matter in what manner it is criticised succumbs
to the temptation to criticize the press. The press has a fundamental right to criticize the government;
the government has no corresponding right to criticize the press. It can only defend its policies and its
performance and depend on the good sense of the people to discern the true form to false and to ignore
the scurrilous. People in public life must be prepared to leave to public opinion attacks or comments,
which are derogatory or scandalous to them; even the Courts do so. “Justice is not a cloistered virtue,”
said Lord Atkin in Ambard v. A.G. of Trinidad and Tobago. So too, public life is not a cloistered virtue
and she must be allowed to suffer the scrutiny and even the scandalous comments of the press.

Because of the actual and potential power it wields over the affairs of men and because of the ready
inclination of many to Court its favour in their own self-interest, any criticism of the press but [end of
page 54] the government can very well be the first step to the suppression of the free press - by the
press itself out of caution, and by others taking up the cudgel for the government out of misguided or
selfish motives.

In all this, the press has a moral obligation to be factual and fair if it cannot be respectful. There can be
no excuse for scurrilous and scandalous attacks upon any one by the press but if it does occur, it is the
price we pay for our cherished liberty and (with the remedies provided by the law of libel and slander) it
is not too heavy a price to pay.

Because of the actual and potential power it wields and the willingness of many to Court its favour in
their own self-interest, any criticism of the press by the government can bring about a suppression of
the free press - by the press itself out of excessive caution or fear, as well as by others.

In this modern age, a free press is indispensable to the right to express political views and to freedom of
thought and expression. If the free press goes, by any form of government action or censorship, then
inevitably the other two related freedoms are affected and will ultimately perish. More and more these
three fundamental freedoms become the three sides of a triangle; they really form one whole and upon
them hinge the liberty of the individual and the freedom of the Nation.

Coming back to the submissions of counsel. In the Collymore cases, (supra) the question was whether
the abridgement of the rights of freedom to bargain collectively and of freedom to strike by Trade
Unions under the Industrial Stabilization Act, 1965 were abridgements of the right of freedom of
association under the constitution. It was held that neither of the two first mentioned freedoms could be
equated with the constitution guarantee of freedom of association and [end of page 55] assembly which
merely can notes the right of persons to associate or assemble and does not include the purposes for
which they associate or the objects which in association they pursue. Lord Donovan, who delivered the
judgment of the Privy Council, put the issue "as simply a question of construction". The decision turned
on the fact that trade unions are formed for many purposes other than the improvement of wages and
conditions and thus it could not be said that the abridgement of the right to free collective bargaining
and the freedom to strike "leaves the assurance of ‘freedom of association’ empty of worthwhile
content". If the collective bargaining and the strike freedoms were the predominant purpose of trade
unions the decision probably, have been different. Hope (supra) dealt with the validity of import licences
and newsprint. The question was whether two Trade Orders made under the Trade Ordinance No. 34 of
98, which prohibited the importation of newsprint and printing equipment except by licence offended
against the fundamental right not to be

"hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without
interference, freedom to receive ideas and information without interference freedom to communicate
ideas and information without interference and freedom from interference with his correspondence."

26
under Article 12 of the Constitution of Guyana. The Court hold that the licensing system imposed,
though it could directly hinder the importation of newsprint, did not hinder the fundamental right to
freedom of expression. Both these cases offer guidance on the approach of the Courts to a challenge
under Sec. 4 of the constitution but they turn on their own special facts. In any event I would hesitate to
use Hope (supra) as the political, social and economic situation obtaining in Guyana is not the same as
that obtaining locally; and further, the Courts of Guyana have taken an approach different from the local
Courts in holding that the fundamental rights in their constitution are merely [end of page 56] declaratory
of the established common law in existence prior to their constitution coming into effect. It is of some
help in looking at the way in which the Guyana Courts approach their constitution and this is what I
believe Mr. Daly had mainly in mind when he cited Hope. The Policy of T.T.T. - Appendix A.

Mr. H. Phillips categorizes Appendix A as an attempt to legislate for the infringement of fundamental
rights without the sanction of parliament. He attacks:

(1) Paragraph 2: This reads:-

"The Board had no difficulty in rejecting a proposal made that time should be sold for political
broadcasting by parties, because it would be manifestly undemocratic for such time to be dependent on
the amount of money at the disposal of a party".

It is admitted on the evidence that T.T.T. has refused to sell any person or political party including the
O.N.R. time for political broadcasts. This decision Mr. Hudson Phillip says, infringes the right of the
applicant and his party to express political views. He said the matter must be looked at in the context of
television being recognised as the most powerful method of communication in the modern world and of
T.T.T. being publicly owned and the only television station in Trinidad and Tobago because of the
refusal by the government to it any other television station to operate in Trinidad and Tobago.

Mr. Daly counters with the submission that the right to freedom to express political views does not mean
a freedom to buy time on T.T.T. In R v. Goldstein [1982] 3 All E.R. 53 CA the appellant was charged
with being party to the fraudulent evasion of the prohibition on the importation citizens’ brand radios
imposed by Section 7 of the Wireless Telegraphy Act 1967. These radios transmitted on 27MHZ.
Counsel made a subsidiary point under Article 10 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms (Cmnd 8969) [end of page 57] relating to freedom of
expression. Lord Lane in disposing of the point said very briefly:

"We say in passing that freedom of expression does not mean freedom to express yourself on 27 MHZ."

Logic tells me that Lord Lane’s approach is correct in the circumstances of that case but I have an
instinctive feeling that in the context of situation obtaining locally, logic may be wrong. The government
owns T.T.T. It is the only television station allowed to operate and this for reasons, which the
government neglects or refuses to give. T.T.T. favours the government (and I use the word neutrally)
with free time for government programmes and special broadcasts by Ministers, which however
justifiable, must be of some propaganda value to the government. The government is duty bound to
uphold the fundamental rights and with television, being the most powerful medium of communication in
the modern world, it is in my view idle to postulate that freedom to express political views means what
the constitution intends it to mean without the correlative adjunct to express such views on television.
The days of soapbox oratory are over; so are the days of political pamphleteering. And the government
cannot in my view ‘control’ the only television station in Trinidad and Tobago in these modern times and
refuse a recognised political party the use of this most powerful medium of communication" to express
its political views. The fundamental right would otherwise be stultified and would put the recognised
political parties in opposition in a position of grave disadvantage. It would be taking away from them one
of the most, if not the most effective vehicle of political expression. It would be undemocratic. I am of the
view that in the circumstances obtaining, television time must be made available to all recognised
political parties, either free or for payment, subject only to reasonable limitations. Brennan J. in
Columbia Broadcasting (supra) put the matter very succinctly thus: [end of page 58]

27
"But freedom of speech does not exist in the abstract. On the contrary, the right to speak can flourish
only if it is allowed to operate in an effective forum - whether it is a public park, a schoolroom, a town
meeting hall, a soapbox, or a radio and television frequency. For in the absence of an effective means
of communication the right to speak would ring hollow indeed. And in recognition of those principles, we
have consistently held the First Amendment embodies, not only the abstract right to be free of
censorship, but also the right of an individual to utilize an appropriate and effective medium for the
expression of his views. Indeed, unlike the streets, parks, public libraries and other ‘forums’ that we
have held to be appropriate for the exercise of First Amendment rights, the broadcast media are
dedicated specifically to communication.”

This Court mutatis mutandis echoes those views.

I hold therefore, that T.T.T. by imposing Appendix A as it did, has infringed the fundamental right of the
applicant to express political views and of freedom of expression. Further, T.T.T. must open up the
television spectrum to all recognised political parties for the expression of their political views and in so
doing must accord them generous and reasonable time both as to number and duration of broadcasts
subject only to reasonable limitation as to media time, and compelling matters of an administrative or
technical nature.

(2) Paragraph 7: This reads -

"Broadcasts by Ministers on legislation and administration policies and informing about and explaining
matters of national or international importance, will not be charged against the periods allocated to the
party that forms the government of the day. If in so doing a Minister criticizes another party, that party
will have the right to reply without prejudice to its allocated time."

Mr. Hudson Phillips contends that this practice heightens the degree of inequality between government
and other political parties. However laudable it may be he says, the fact is that it increases the time of
the government party. I am not sure whether Mr. H. Phillips was really saying that this facility to
government offends against the right to, "equal treatment" or whether it was just a part of his general
[end of page 59] argument. Whichever it is, it does not seem to me per so objectionable. Government
should be given the opportunity to inform the people of its activities but of course, it should be done in
as "non-political" a way as possible. It must of course, be admitted that some advantage must accrue to
government from this accommodation but I do not see it offending against the constitution as long as it
is kept within fair limits. The only cause for some concern is that the time given by T.T.T. is free when
no corresponding time in whole or in part, free or for payment, is given to the opposition parties. But I do
not think this concern is enough to take the practice out of what is permissible under the constitution.

Paragraph 9: This reads -

"Broadcasts must not include:

1. Any matter in contravention of the laws of Trinidad and Tobago.

2. Any abusive comment on any race, creed or religion.

3. Any obscene, indecent or profane matter.

4. Any malicious, scandalous or defamatory matter.

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5. Any matter which contains any false or deceptive statement.”

Broadcasts by Trade Unions or Broadcasts of a controversial nature or industrial dispute may be

Mr. Hudson Phillips argues that political broadcasts are matters of controversy and that to limit such
broadcasts as prescribed or any limitation for that matter, infringes the right to express political views,
the right to freedom of expression and the right to freedom of the press. I understood him to be limiting
his argument to the second section of the paragraph and therefore, confine myself to that section alone.
There could be quite complex arguments on the first section. Mr. Daly’s answer is his general
submission that the policy is reasonable. [end of page 60]

Politics is a matter of controversy and political broadcasts must necessarily be so. Politicians must be
allowed to express their views, no matter how controversial they may be and in whatever language they
please as long as such language is not prohibited by law. Whatever feelings some may hold that it
should be different, the simple fact is that the political arena is not for the gentle soul but rather for the
gladiator whose weapon is his words... and he uses these against his foe not to uplift, but to pull him
down; not to heal, but wound. To prohibit political controversy is to prohibit politics itself. The
qualification of reasonableness cannot apply here for there can be no qualification limiting the right to
express political views and to freedom of expression, to reasonable utterances. The politician has the
right to be an unreasonable in his utterances as he wishes subject as indicated before, to the dictates of
the law.

I hold therefore, that this provision in Appendix A is offensive to the Constitution.

(3) Paragraph 12: This reads -

"The Board reserves the right to decide whether a script or any part thereof is acceptable for broadcast,
and once passed for broadcast, a script may not be departed from".

This policy direction is very broadly framed. In the hands of a dishonest or biased person, it can be
destructive of political rights and must on the face of it, fall as potentially infringing the right to freedom
to express political views and of expression. Regulations duly enacted, may lay down bona fide
qualifications but must not, apart from such qualifications, lay down a blanket prohibitions exercisable or
not at the instance of any person.

This paragraph also falls as being offensive to the constitution. [end of page 61]

(4) The Specific Infringements:

Mr. Hudson Phillips contends that the refusal by T.T.T. to broadcast the applicant’s pre-recorded script
on the 21st December, 1982 infringed his fundamental right to express political views and of freedom of
expression. The statements of applicant objected to were:

(a) That he had “an extremely short time because of government’s broadcasting policy with regard to
political parties.”

(b) That “government’s investment in steel has failed.”

(c) That “it would appear that for the individual building an average three (3) bedroom flat, costs would
escalate by about $10,000.”

29
Mr. Hudson Phillips says that all those statements are expression of opinion and to prohibit them
infringes the applicant’s right and freedoms aforesaid. Mr. Daly in answer justifies the action of T.T.T. on
the grounds given.

The second and third statements are in my view, clearly matter of opinion and cannot and should not
have been prohibited. The first statement was clearly controversial; the applicant was saying that
T.T.T.’s broadcasting policy was the government’s while T.T.T. was protesting it was their own. And in
this matter, T.T.T. became a judge in its own cause. For myself, it appears to be a statement which the
applicant could legitimately make as he contended then and indeed, continues to contend in this
motion. It was clearly a matter of opinion on a controversial issue and T.T.T. reacted with a sensitivity,
which was in my view, unfortunate. The refusal therefore, infringes the applicant’s rights as he
contends.

(d) The applicant included in the pre-recorded broadcast a reference to the local government elections,
which was not in the written script. T.T.T. objected to this inclusion on the ground that it was not a part
of the script and also because it was “canvassing.” [end of page 62]

Mr. Hudson Phillips contends that "canvassing" is an essential part of politics and further, an innocuous
change from the written script is legitimate and should not result in a rejection of the broadcast. To do
so he says, offends against the applicant’s right to express political views and of freedom of expression.
Mr. Daly answers the Appendix A is reasonable and T.T.T.’s actions are likewise, reasonable.

A more innocuous change in the written script is not a good enough reason for a refusal to broadcast
the pre-recording. And to do this on the ground of "canvassing" compounds the injury. "Canvassing" is
part and parcel of politics. Using the word broadly, a politician is always canvassing and to refuse to
broadcast a pre-recording on this ground is surprising, to say the least. It must be remembered that the
requirement to pre-record is primarily an administrative matter and not for trivial censorship. The
applicant succeeds on this point.

(e) The applicant objects further to the refusal by T.T.T. to broadcast his pre-recorded script on the 21st
December, 1982. T,T.T. had greed to do so but delayed the broadcast "to permit statements by a
government and the Opposition in parliament to be made first". The reason to delay the broadcast was
no doubt, very laudable and intended to demonstrate due deference to the Honourable Members of
Parliament. But being in the area of fundamental rights and freedoms, it was not, in my view, a good
enough reason. Having agreed to broadcast the applicant’s script on the 21st December, 1982, it was
obligatory for T.T.T. to honour its commitment. Failure to do so for the reasons given infringed the
applicant’s fundamental rights aforesaid.

Political broadcasts in this day and age are essential to parliamentary democracy. It is the politics of
opposing parties, each contending for the right to govern and each therefore, contending for the hearts
and minds of the people. Communication therefore, is [end of page 63] the life-blood of politics and
communication today centres upon the printed press and the electronic media. It is open to the privately
owned media to publish or not to publish, to broadcast or not to broadcast. But that is not so and cannot
be so with the publicly owned media. The government has an obligation to honour and to uphold, in the
latter and in the spirit, the fundamental rights to express political views and of freedom of expression
and of the press. And it is its duty to ensure that those, to whom it entrusts the regulation of the publicly
owned media, are sensitive to the fundamental rights involved. I regret to say that those at T.T.T.
involved in this matter, have displayed a lack of sensitivity to political rights which is not only regrettable,
but dangerous; and they should be advised that the exercise of political broadcasting must be
conducted with maturity and in an attitude of willingness to assist political parties rather than hinder
them. They are servants of the people, not masters, and their duty and only duty is to serve the public
good which in this area of political broadcasting, calls for a sense of openness and fairness. With this
attitude, this Court feels sure that complaints like these raised in this motion, will not arise.

Continuing further, Mr. Hudson Phillips submitted that the applicant’s right to Freedom of the Press was
infringed. At first glance this would seem a strange submission since one would naturally think that the

30
right is the right of "the press" and that it is "the press" therefore, which is entitled to complain. But Mr.
Hudson Phillips contends that there is included in this fundamental right both a right of the electronic
press to publish and a right of the citizen as a listener, to receive information.

In Red Lion (supra) White J. delivering the judgement of the Court said: [end of page 64]

“....Because of the scarcity of radio frequencies, the government is permitted to put restraints on
licences in favour of others whose views should be expressed on this unique medium. But the people
as a whole retain their interest in free speech by radio and their collective right to have the medium
function consistently with the ends and purposes of the First Amendment. It is the right of the viewers
and listeners, not the right of the broadcasters, which is paramount. It is the purpose of the First
Amendment to preserve an inhibited market place of ideas in which truth will ultimately prevail rather
than to countenance monpolisation of that market, whether it is by the government itself or by a
licencee. ‘Speech concerning public affairs is more than self-expression; it is the essence of self-
government: It is the right of the public to receive suitable access to social, political, esthetic, moral, and
other ideas and experiences which is crucial here. That right may not constitutionally be abridged by
Congress or the F.C.C.”

The First Amendment" is analogous to Sec. 4(e), (i) and (f) of the constitution. In my view they mean in
effect, the same thing and are directed to freedom of speech and of the press, which latter includes an
electronic media.

This Court finds Red Lion (supra) persuasive in its reasoning. The right to express political Views and to
freedom of the press cannot exist in a vacuum or in mere theory. The right to express political views is a
vain and empty right if there are none to listen similarly the right to the freedom of the press is vain and
empty if there are none to view and to read. Simply put, the printed press cannot exist without readers
and the electronic press, without viewers and listeners. And since the constitution recognises and
guarantees right to express political views and the right to a free press, any act which obstructs the free
flow and receipt of information from person or press would offend against those rights and would be
unconstitutional. It appears therefore that in conferring the right of free expression of political views to
the politician and the right of a free press to the press, the constitution contemplated an adjunctive right
in the listener, viewer and reader to the free flow and receipt [end of page 65] of information and views
from the politician and the press. These two rights in fact, constitute the two sides of the same coin.

I hold therefore, that the right to express political views and the right of freedom of the press carries with
them as a matter of construction, the right of every citizen to the free expression of political views by
any other person and to the right to a free press; and that such right of the citizen is in itself, a
fundamental right attracting section 14 proceedings where he is affected by an attack on the initiatory
right.

I would have preferred to have fuller arguments on this issue. However, the matter has been put before
me and I have to decide the point and doing the best I could, I would find as indicated above.

The applicant is entitled to a free press and T.T.T. for the reasons already stated, has infringed his
fundamental right to freedom of the press.

This brings me to the end of my findings on the constitutionality or otherwise of the challenged acts. Mr.
Daly made two further submissions, which I must now deal with. He submitted that (i) "The applicant is
not a proper party to bring this action and (ii) the applicant has approbated and reprobated in respect of
the matters complained of and that the Court is bound to deny him a remedy.

(i) The “locus standi” of the Applicant:

The applicant is the first vice president of the O.N.R. He was selected to do the political broadcast. The
matter of facts him personally and also in his capacity as First Vice President of the O.N.R. It also
affects his party. Clearly he has a legitimate interest in the matter and has established a sufficiently
close nexus to the complaints against both T.T.T’s policy directive in Appendix A and the specific
infringements, to bring this motion. In my view all that a [end of page 66] person has to do to bring

31
proceedings under Sec. 14 of the Constitution is to show that he is affected in a real sense by the
alleged infringements; this gives him a sufficient interest in the matter.

I hold that the applicant has such an interest and has a locus standi to bring the motion.

(ii) Approbation and Reprobation:

It is clear that the applicant and indeed, his party accepted Appendix A in the sense that they took
advantage of the time for political broadcasts offered by T.T.T.

Barsotti in his affidavit recounted that he drew the changes be made to the script to the applicant’s
attention and that the applicant accepted this. There was no affidavit in reply and in the normal case,
Barsotti’s evidence would be accepted. But Barsotti’s evidence has in one instance already referred to
been rejected as mistaken and I wonder whether I can in the circumstance, accept this particular
evidence of "approbation" as dependable. In any event it is not necessary to decide the issue because I
find no approbation in this case. Approbation and reprobation involves free choice. The applicant and
his party did not have any choice here. It was a "take it or leave it" situation and they would have been
very "foolish" to "leave it" and lose the advantage of political broadcasts. They took in my view, the only
course they could have adopted in the situation reserving to themselves the right to take legal action
subsequently, as indeed they have done.

The area of fundamental rights is not an area in which the Court will stand by on technicalities. The
Courts look at the reality of the situation and will not, except in the most compelling circumstances allow
the substance to go by default. In this connection, I would advert to Mr. Hudson Phillips’ submission to
the point taken in limine, that in matters involving such serious issues as raised in this motion, [end of
page 67] the Courts will not turn away an applicant in limine unless the point taken is patently clear and
beyond question. I am in full agreement with this is submission and this view I hold was one of the
reasons for the Court’s decision to reserve ruling on the preliminary point and proceed into the merits of
the Motion.

The Remedies

Having found that the fundamental rights of the applicant to express political views, to freedom of
expression and to freedom of the press were infringed, I must now proceed to the difficult deciding what
redress ought to be ordered. It is not an easy matter. We are here in a now area of the law of the
constitution and the Courts are in the process of grappling with and developing the constitutional law of
the land. Difficult as it is, the Courts proceed with wisdom (hopefully) and fortitude, which is its duty, and
the most, can be expected of them.

Damages are of course, the usual remedy but even in this area, principles of assessment have not yet
been fully worked out. Of greater import in this case however, is the invitation by Mr. Hudson Phillips to
strike down Appendix A and order the respondents "to publish and make available a policy which
guarantees to the applicant the fundamental rights infringed in relation to television broadcasting in
Trinidad and Tobago." And he further submits that the Court should direct that this policy be presented
to the Court within specified time for its approval before publication.

There is no doubt about the importance of the electronic media in the area of communication in the
modern world. There is no doubt too, that the "air waves", a part of the public domain and being limited
in the scope of its use, cannot be left to become "a free for all.” Regulations are necessary and it is of
course, the [end of page 68] responsibility of the government to introduce them. The government has
not yet done so. It has preferred to restrict the use of the television media to one publicly owned
television station incorporated under the Companies Ordinance, and to leave the very important issue of
political broadcasting ostensibly at least, in the hands of a Board of Directors (and certain of its
employees) of a “private” company responsible it is said, to no one. This Court suggests with respect,
that such a situation is constitutionally unsatisfactory and that in this field where fundamental rights of a
nature so vital to freedom, are so obviously involved and open to abuse, the government should
consider and declare as a matter of urgency, its policy regarding the electronic media; and whatever
that policy may be, the enactment of regulations which guarantee the fundamental rights aforesaid.

In the meantime the Court has to consider whether it should fill the lacuna. Mr. Hudson Phillips submits
that it has the power do so and that it should do so in the present unsatisfactory state of affairs. That

32
power he says lies in Sec. 14 (2) of the constitution, which provides:

"2. The Court shall have original jurisdiction -

(a) to hear and determine any application made by any person in pursuance of sub-section (1); and

(b) to determine any question arising in the case of any person which is referred to it in pursuance of
subsection (4),

and may, subject to subsection (3), make such orders, issue such writs and give such directions as it
may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the
provisions of this chapter to the protection of which the person concerned is entitled."

It is obvious that the fundamental rights were considered to be of such vital import to Trinidad and
Tobago that, included in the constitution for their enforcement, are powers of an extremely wide [end of
page 69] nature. To "make such orders, issue such writs and give such directions for the purpose of
enforcing, or securing the enforcement of...” must include the power to direct the respondents to
prepare and present to Court a proper policy document for political broadcasting. The question is
whether such a direction is appropriate in the circumstances. The Courts to my knowledge, have never
before made such orders but of course, is no reason why it should not do so now if it is appropriate so
to do.

Some learning may be derived from Basu’s commentary on the Constitution of India Vol. 2 as to the
scope of the section. Article 32 (2) of the Indian Constitution provides:

“2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any rights conferred by this Part."

This clause has in my view, the same effect as our section 13 (2) Basu’s at page 273 says:

"This clause gives a very wide jurisdiction to the Supreme Court for the enforcement of Fundamental
Rights. It not only empowers the Supreme Court to issue the writs of habeas corpus, mandamus,
prohibition, quo warranto and certiorari as they are known in England, but also enables the Supreme
Court to devise directions orders or writs analogous to the above, or to improve upon the above writs so
as to avoid their technical deficiencies, if any, to adapt them to Indian circumstances. No legislation
would be required to support the invention of directions or the modification of the writs as may be
required for the effective enforcement of the fundamental rights."

And the learned author goes on at p. 274:

"The arms of our Supreme Court are therefore, as long as could be desired or as may be necessary in
the circumstances of any case, where the violation of a fundamental right is established."

Our Section 13(2) does not expressly mention the prerogative writs but they are of course, included in
the words "issue such writs” and I would hold that Basu’s (supra) correctly states the powers of the [end
of page 70] Courts under section 13(2). After all, the declaration of fundamental rights would be an idle
formality if there were no effective means of enforcing them.

Coming back to the question of whether the Court should strike down Appendix A and direct the
respondents to publish a proper policy relating to political broadcasting. I can see no difficulty in striking

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down Appendix A. It is analogous to enacted regulation and the Courts have power to strike down
offending legislation. I have found that certain provisions therein are offensive to the constitution. These
particular provisions cannot in my view, be severed; the remaining provisions would then make no
sense. In the circumstances I will strike down Appendix A.

Should the Court direct both respondents or even T.T.T. to prepare a now policy statement which takes
into consideration what I have said herein and present it to the Court for its approval. The Courts does
not usually get involved in the machinery for giving effect to its orders and there is good reason for this;
but section 13(2) places the duty squarely on the Courts not only to enforce fundamental rights but to
secure their enforcement. Where necessary therefore, the Courts will not hesitate to do what is
necessary by way of orders and directions to secure the enforcement of these rights.

Government has so far demonstrated a reluctance to regularize the television media by the formulation
of an overall policy and as done nothing to regularize the field of political broadcasting by enactment of
regulations. Since it is an area where vital fundamental rights are involved, this Court feels it is duty
bound to secure the enforcement of those rights. It cannot leave such a vital area to the dictates,
however well intentioned, of one person or a group of private persons who may feel no sense of duty to
uphold those rights and who may rather, be guided by the realities of life which effect their [end of page
71] position and their livelihood. It may not be easy for the Board of Directors and the General Manager
of T.T.T. to resist any political pressure, if applied and such pressure does not have to be overt.
Douglas J. in Columbia Broadcasting speaking about broadcast licensees (to whom T.T.T.’s Board of
Directors may be equated) said:

"But the regime of federal supervision under the Fairness Doctrine is contrary to our constitutional
mandate and makes the broadcast licencee an easy victim of political pressures and reduces him to a
timid and submissive segment of the press whose measure of the public interest will now be echoes of
the dominant political voice that emerges after every election"

I repeat for convenience what he said at p. 167:

"The growing specter of government control and surveillance over all activities of people makes
ominous the threat to liberty by those who hold the executive power. Over and over again, attempts
have been made to use the Commission as a political weapon against the opposition, whether to the left
or to the right.

Experience has shown that unrestrained power cannot be trusted to serve the public weal even though
it is in governmental hands. The fate of the First Amendment should not be so jeopardized. The
constitutional mandate that Government shall make "no law" abridging freedom of speech and the press
is clear: the orders and rulings of the Commission are covered by that ban; and it must be carefully
confined lest broadcasting - now our most powerful media - be used to subdue the minorities or help
produce a Nation of people who walk submissively to the executive’s notions of the public good."

I have no doubt in my mind that the fundamental rights of "free speech" demand opening up the
television media to political broadcasts. And if Government does not enact regulations for this purpose
which accords with the constitution, then the Courts must require them of T.T.T. to ensure the securing
of the enforcement of those rights. In all the circumstances, this is an exceptional case and this Court
feels that it should require T.T.T. to prepare and present for the Court’s approval a statement of policy
regarding political broadcasting taking into consideration the guidelines and findings herein. This Court
suggests that T.T.T. considers doing [end of page 72] so in or after consultation with recognised political
parties since consultation in matters affecting vital interests are not only prudent and wise but may also
be a matter of necessity. This Court indicates here and now that if there is no consultation as
suggested, it will invite all recognised political parties through an announcement in open Court to
appear by counsel and assist the Court amicus in its determination of the acceptability of the policy
statement. I make it clear that the Court will only be concerned with areas of the policy statement, which
affects fundamental rights and will not venture, as indeed it must not, on to areas, which lie within the
competence of T.T.T.

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In the light of the foregoing, I think it will be most appropriate to pronounce first on the proposed
statement of policy before I go on to assess damages and formalize my order. I will therefore, issue
directions to T.T.T. and adjourn further hearing.

It is therefore ordered that:

(1) T.T.T. by its Board of Director and General Manager prepare a statement of policy regarding political
broadcasting which affords to all recognised political parties broadcasting time reasonable both as to
number of broadcasts and duration of each broadcast.

(2) T.T.T. files the said document in this Court for its approval on or before the 28th February 1985.

(3) Further consideration of this motion is adjourned to the 4th March 1985.

There will be liberty to appeal. Dated this 17th January, 1985. [end of page 73]

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