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West Indian Reports/Volume 38 /Belize Broadcasting Authority v Courtenay and Another - (1986) 38 WIR 79

(1986) 38 WIR 79

Belize Broadcasting Authority v Courtenay and Another

COURT OF APPEAL OF BELIZE

SIR JAMES SMITH P, SIR ALBERT STAINE AND HENRY JJA

20 JUNE 1986

Fundamental rights and freedoms - Redress - Locus standi - Operator of unlicensed television station -
Whether entitlement to bring proceedings for redress of constitutional rights restricted to challenge to validity
of requirement for licence - Acquiescence in operation of unlicensed station by broadcasting authority

Constitutional law - Validity of legislation - Belize - Broadcasting and Television Regulations 1984 (SI 44 of
1984)[Belize], regulation 10

Fundamental rights and freedoms - Freedom of expression - Political broadcasting - Requirement for
consent to broadcast - Failure of authority to view programme before reaching decision - Decision arbitrary
and discriminatory - Meaning of 'character and standards' in section 9(1)(d) of the Broadcasting and
Television Act 1983, No 11 [Belize] - Constitution of Belize, sections 12(1),16

Fundamental rights and freedoms - Freedom of expression - Extent of freedom - Wireless broadcasting
and television - Constitution of Belize, section 12(2)(b)

H operated a television station in Belize under licence. In 1983 the Broadcasting and Television Act came
into force. The Broadcasting and Television Regulations 1984 which were made under the Act required (inter
alia) all operators of existing television stations to seek new licences within ten days. H duly applied for a
licence but, although the Belize Broadcasting Authority was required to submit the application to the Minister
with a recommendation for its grant or refusal within four weeks, no response had been made to his
application, nor to that of other applicants. The television stations were in practice permitted to continue to
operate despite the absence of licences and no prosecutions were brought for so operating. C, a Senator,
interested H in the possibility of broadcasting a television programme on matters of public interest and public
policy. H wrote to the authority for permission to broadcast a programme which he described as a panel
discussion on the state of the economy. The chairman of the authority wrote to H referring to the proposed
programme as a 'political broadcast', which he stated could not be broadcast without the permission of the
authority in accordance with the regulations (regulation
(1986) 38 WIR 79 at 80

10 of which required the consent in writing of the authority to 'any political speech or activity' and empowered
the authority to attach terms and conditions to its consent to ensure impartiality, the right of reply and
comment). The secretary of the authority wrote to H and to C formally refusing permission for the broadcast;
in so doing he referred to the programme as a 'party political broadcast'. H and C (and another) instituted
proceedings for appropriate declarations and orders. The Chief Justice found the refusal to allow the
broadcast to be arbitrary and censorious, a hindrance to the right of freedom of expression enshrined in
section 12(1) of the Constitution of Belize, and discriminatory within section 16 of the Constitution. The
authority appealed against the decision. On the appeal, the authority argued that H had no locus standi; an
unlicensed party could not bring an action (it claimed) for constitutional redress in relation to broadcasting
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except on the ground that the requirement to hold a licence was unconstitutional, further that the court should
not lend its aid to a party who founded his cause of action on an illegal act.

Held (1) that no objection could be taken on the ground that H's television station did not hold a licence and
was thus liable to prosecution as due application had been made for a licence, no effort had been made to
close the station for want of a licence, and no steps had been taken to prosecute for operating a station
without a licence; the authority must be taken to have acquiesced in the operation of the unlicensed station
and in the circumstances H's locus standi could not be challenged.

Off Course Betting (1955) Ltd v Chen (1972) 18 WIR 340 and Attorney-General v Antigua Times (1975) 21
WIR 560 distinguished.

(2) That regulation 10 by indicating the matters to be considered by the authority before it gave its consent to
the televising of political broadcasts had set out the guidelines on which such consent should be given and
did not give the authority arbitrary powers of censorship; the regulation accordingly was not ultra vires
sections 12(1) and 16 of the Constitution of Belize.

Francis v Chief of Police (1973) 20 WIR 550 considered.

(3) That the authority had acted arbitrarily by failing to view the programme before deciding that it was a party
political broadcast and rejecting the application for its consent; accordingly, it had acted in contravention of
sections 12 and 16 of the Constitution.

Per Sir James Smith P. The power of the authority to control the 'character and standards' of television (see
section 9(1)(d) of the Broadcasting and Television Act) entitles it to ensure that programmes do not offend
against good taste or decency, are not likely to encourage or incite
(1986) 38 WIR 79 at 81

the commission of crimes, or lead to disorder, or be offensive to public feeling, that programmes maintain a
proper balance in subject matter and a high standard of quality, that they are presented with accuracy and
impartiality, and that the programmes appeal to the outlook and tastes of television viewers.

Per Henry JA. Section 12(2)(b) of the Constitution by specifically referring to wireless broadcasting and
television makes it clear that the rights contemplated by section 12 (freedom of expression) include the
right to freedom of expression by these means.

Cases referred to in the judgments

Attorney-General v Antigua Times (1975) 21 WIR 560, [1976] AC 16, [1975] 3 All ER 81, [1975] 3 WLR
232, PC.

C B S v Democratic National Committee, 412 US 94 (1972).

Francis v Chief of Police (1973) 20 WIR 550, [1973] AC 731, [1973] 2 All ER 251, [1973] 2 WLR 505, PC.

Off Course Betting (1955) Ltd v Chen (1972) 18 WIR 340, Jamaica CA.

Appeal
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The Belize Broadcasting Authority appealed to the Court of Appeal of Belize (civil appeal 6 of 1985)
against two declarations made by the Chief Justice on the application of V H Courtenay and Arthur
Hoare (the respondents to the appeal). The facts are set out in the judgment of Sir James Smith P.

Hubert Elrington, Attorney-General, George Singh, Solicitor-General, and Cecil Ramirez, Crown Counsel, for
the authority.

Assad Shoman and Said Musa for the respondents.

20 June 1986. The following judgments were delivered.

Sir James Smith P. This is an appeal by the Belize Broadcasting Authority from the judgment of the Chief
Justice upon an application for constitutional redress by the respondents, Mr V H Courtenay and Mr Arthur
Hoare. In the Supreme Court they sought seven declarations based upon the fundamental right of freedom of
expression in section 12 of the Constitution of Belize and also section 16 of the Constitution, which provides
that 'no law shall make any provision that is discriminatory either of itself or in its effect'. Of the seven
declarations sought, the Chief Justice rejected those contained in paragraphs 1 and 4 to 7 (both inclusive) of
the application. The authority has appealed against the findings and orders of the Chief Justice in regard to
the following:

'2. A declaration that [regulation 10] prohibiting the broadcasting of any party political speech or activity without the
previous consent in writing of the Belize Broadcasting Authority is not binding on the

(1986) 38 WIR 79 at 82

[respondents] and is unconstitutional, void and of no effect for the reason that it infringes or is calculated to infringe as
against the [respondents] the provisions in relation to fundamental rights guaranteed by sections 12 and/or 16 of the
Constitution of Belize.

'3. A declaration that the refusal of the said authority to grant consent to broadcast a series of monthly programmes or
any of them is unconstitutional and a violation as against the [respondents] of the provisions of sections 12 and/or 16 of
the Belize Constitution.'

Mr Courtenay is a Senator, and a member of the political party called the People's United Party. Mr Hoare is
the managing director and operator of a television station in the city of Belize known as 'CTV 9 Belize'. In
early May 1985, Mr Courtenay participated in the conception, writing and recording of what he called -
'the first of a series of television programmes entitled "Our Turn" ... intended to provide the Belize public with the view
of the People's United Party on matters of public interest and public policy.'

The Belize Broadcasting Authority is a body corporate with a board of directors of whom Mr W L Brown is the
chairman, constituted under section 3 of the Broadcasting and Television Act 1983 with the functions set out
in section 4 thereof. On 20 May 1985, Mr Courtenay applied in writing to the secretary of the authority on
behalf of the People's United Party for permission:
'for a party political broadcast for television lasting approximately thirty-three minutes on the subject of the economy...
on the basis of the right to reply and rebutting allegations on the state of the economy since the last administration'

and continued:
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'Many radio and television broadcasts levelling accusations at the People's United Party administration have gone
without reply. The party intends to introduce a series of monthly broadcasts in exercise of its right to reply and would be
grateful if you would grant permission for this first broadcast and consider further whether permission can be granted
for the monthly series on such terms as you may deem appropriate.'

The proposed telecast was entitled 'Our Turn'.

Mr Hoare, when approached, was prepared to show this programme on television because, as he said in his
affidavit: 'I feel a duty to the public to present alternative views and to promote the exercise of the freedom of
expression'. He also wrote to the secretary of the authority on 20 May 1985, saying:

(1986) 38 WIR 79 at 83

'We are hereby applying for permission to air on Wednesday 22nd May 1985 the programme "Our Turn" a panel
discussion on the state of the economy.

'Members of the panel are: the Rt Hon George C. Price, Hon Harry Courtenay, Hon F. Marin and Mr Said Musa.

It may be observed that while Mr Courtenay called the programme 'a party political broadcast' Mr Hoare
referred to 'Our Turn' as 'a panel discussion on the state of the economy'. Mr Brown the chairman of the
authority also referred to it as a 'party political broadcast' in his letter to members of the board on 21 May
1985. It reads:
'Please see the two attached applications from CTV Channel 9 and also from the People's United Party requesting
permission to air a thirty-three minute programme on television stations.

'As you will see from the letters it appears that we are talking about party political broadcast. In this connection I would
like to remind you of the Belize Broadcasting Authority's decision to ensure that political broadcasts are only approved
in the context of up-coming elections. The point should also be noted that the authority at its previous meeting pointed
out the fact that licences have not yet been issued to operators but that they are still subject to the Belize Broadcasting
Act and the Belize Broadcasting Regulations 1984. The relevant section reads as follows. "The licensee shall not
broadcast or televise any party political speech or activity and shall not give any publicity thereto without the previous
consent in writing of the authority and where such consent is granted the authority may prescribe the terms and
conditions for such broadcast with a view to ensuring the preservation of due impartiality and the right of reply or
comment allowing for equal time".

'I shall be grateful if as a matter of urgency you will indicate on the application with your support approval of the request
from CTV 9 and the People's United Party. Grateful you will see this matter with urgency.'

Also on 21 May Mr Brown wrote to Mr Hoare saying in his first paragraph:

'I would like to refer to my conversation with you of today's date on the question of political broadcast and to remind you
that the Broadcasting Authority continues to adhere to the policy of no political broadcast to be aired without the written
permission of the Broadcasting Authority as required by the Broadcasting Regulations 1984 ...'

On 21 May the secretary of the authority wrote separately to Mr Courtenay and Mr Hoare, as directed by the
authority refusing approval. He also referred to the programme as a 'party political broadcast'.

(1986) 38 WIR 79 at 84
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On 29 May 1985 proceedings were started in the Supreme Court, by originating summons supported by
affidavits of Mr Courtenay, Mr Hoare and Mr Said Musa. In his affidavit of that date Mr Courtenay deposed (in
paragraph 3):

'The decision to publish this series of television programmes was taken in view of the fact that the people of Belize
have been subjected to a large number of radio and television programmes whose object is to promote one particular
viewpoint and in the light of the requirement, in a democratic society, for differing views on matters of public policy to be
made available to the public. As a regular listener to and viewer of radio and television programmes I was myself struck
by the fact that several such programmes - including 'Face the Nation', 'Belize Today', press conferences, interviews,
speeches by members of the governing United Democratic Party - have been broadcast in such a way as to promote a
particular political viewpoint. Many of such programmes have made serious charges against the past administration of
the People's United Party relating to its handling of the economy and to its general administration, and I was impressed
with the fact that there was no exercise of the right of reply by the People's United Party and felt that the propagation of
views in the media was therefore discriminatory. I felt there was a need and a public duty to correct the record, give a
true account of the issues aired and provide an alternative viewpoint to the Belizean public.'

In paragraphs 4 to 8 he set out the history of the correspondence already referred to ending with the
authority's refusal and continued:
'9. As a result of the foregoing I was hindered without my consent in the enjoyment of my freedom of expression and in
particular my freedom to communicate ideas and information without interference.

'10. To the best of my knowledge and belief the said authority has never before refused to allow any party political
programme to be broadcast; and it was never the intention of the legislature to hinder the freedom of expression
guaranteed in the Belize Constitution.

'11. To the best of my knowledge and belief the members of the authority never viewed the programme, although I
stood and stand ready to facilitate such viewing to such members at any time. The circumstances of the refusal further
show that it was arbitrarily exercised.

'12. To the best of my knowledge and belief the said programme does not offend against any law or public policy, in that
it is not defamatory nor does it offend against any requirements of defence, public safety, public order, public morality or
public health.'

The authority refused Mr Courtenay's application on the ground that it was a party political broadcast. The
Chief Justice found this refusal to be arbitrary, censorial and discriminatory, and a hindrance to the
fundamental

(1986) 38 WIR 79 at 85

right of freedom of expression under section 12 of the Constitution and discriminatory within section 16
thereof. He also found that regulation 10 of the Broadcasting and Television Regulations 1984 was ultra vires
the Constitution. The authority has appealed against those decisions. The grounds of appeal are that the
Chief Justice erred in law:

'1. when he ruled against the preliminary objections of the [respondents];

'2. (a) when he held that regulation 10 of the Broadcasting and Television Regulations 1984 prohibiting the
broadcasting of any party political speech or activity without the previous consent in writing of the Belize Broadcasting
Authority was not binding on the respondents and was unconstitutional, for the reason that it infringed as against the
respondents the provisions in relation to the fundamental rights guaranteed by sections 12 and 16 of the Constitution of
Belize.
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'(b) when he held that regulation 10 of the Broadcasting and Television Regulations 1984 constituted a hindrance within
the meaning of section 12 of the Constitution and that the effect of the regulation was to provide for the exercise of
discretion in a discriminatory fashion, contrary to section 16 of the Constitution.

'3. (a) when he held that the refusal by the Belize Broadcasting Authority to grant consent to broadcast a series of
monthly programmes or any of them was unconstitutional and a violation as against the respondents of the provisions
of sections 12 and 16 of the Belize Constitution.

'(b) when he held that the refusal by the Belize Broadcasting Authority to allow a person to broadcast or televise
something, in other words, to communicate ideas and information was a hindrance to that person's freedom to
communicate and was discriminatory contrary to sections 12 and 16 of the Constitution ...'

'4. in holding that the right to freedom of expression embodied not only the right to use an appropriate and effective
medium but also the right to be free of censorship.'

At the outset of this appeal procedural objections and counter-objections were initially raised by both sides
and then abandoned as they wished to have the appeal decided on its merits. Nevertheless, the Attorney-
General has pursued under ground 1 the objection that Mr Hoare had no locus standi because his television
station had not been issued with a licence, as required under section 5 of the Broadcasting and Television
Act 1983, and was thus liable to prosecution under section 10 thereof. The chairman of the board of the
authority admitted in both his letter to members of the board of 21 May 1985 and in his affidavit of 4 June
1985 that no licences under the Broadcasting and Television Act had been issued up to that time.

The factual history of the matter in this regard is to the following effect. Mr Hoare's television station CTV 9
Belize was operating under licence granted under the Belize Telecommunications Ordinance before the

(1986) 38 WIR 79 at 86

Broadcasting and Television Act came into force in August 1983. The members of the board of the authority,
however, were not appointed until 27 March 1984. The Broadcasting and Television Regulations 1984 came
into force on 30 June 1984. Regulation 6 provided for the fees to be paid for licences under the Act.
Regulation 7 provided:

'In the case of a person who is operating a television station on the date the Act came into force application for a
licence shall be made within ten days of the gazetting of these Regulations ...' [ie by 10th July 1984].

Mr Hoare applied for a licence within those ten days. He has not yet received a reply. Section 5(3) of the Act
states the board of the authority:
'shall within four weeks from the date of its receiving an application [for a licence] submit that application to the Minister
with a recommendation for a grant or refusal of the application, stating in either case the reasons for its
recommendation.'

Mr Brown, the chairman of the board, has admitted that no licences have yet been issued to anyone.

Thus Mr Hoare has done all that the law required of him to obtain a licence under the Act while continuing to
operate his television station as regulation 7 envisaged. He still awaits a reply due to the apparent
dilatoriness of the authority and the Minister. In those circumstances, is Mr Hoare to close down his television
station while awaiting an answer to his application for a licence? It does not appear to be so, as no steps
have been taken by the authority under section 10 of the Act. Further, it is not for the reason of the lack of a
licence that the authority refused permission for a telecast of the programme 'Our Turn'. It appears that all
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television stations throughout the country have been allowed to continue in operation while awaiting the
decision of the authority and the Minister as to the issue of licences. Both the Minister and authority have
thereby acquiesced in permitting the television stations to continue to operate, for the benefit of the public,
while awaiting the grant or refusal of a licence. These circumstances are very different from the facts in
Attorney-General v Antigua Times (1975) 21 WIR 560 and Off Course Betting (1955) Ltd v Chen (1972) 18
WIR 340 cited on behalf of the authority. The authority's failure to issue licences may appear to be an
additional hindrance to the fundamental right of freedom of expression under the Constitution entitling the
applicants to seek redress. In those circumstances I find no merit in the first ground of appeal.

The complaints in the second ground of appeal are against the Chief Justice finding that (a) regulation 10 of
the Broadcasting and Television Regulations 1984 is unconstitutional; and (b) that the said regulation 10
constitutes a hindrance within the meaning of section 12 of the Constitution.

(1986) 38 WIR 79 at 87

Chapter II of the Constitution of Belize makes provision for the 'Protection of Fundamental Rights and
Freedoms'. In this appeal we are concerned with sections 12 and 16 thereof. Section 12 provides:

'(1) Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression,
including freedom to hold opinions without interference, freedom to receive ideas and information without interference,
freedom to communicate ideas and information without interference (whether the communication be to the public
generally or to any person or class of persons) and freedom from interference with his correspondence.'

'(2) Nothing contained in or done under the authority or any law shall be held to be inconsistent with or in contravention
of this section to the extent that the law in question makes reasonable provision - (a) that is required in the interests of
defence, public safety, public order, public morality or public health; (b) that is required for the purpose of protecting the
reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings,
preventing the disclosure of information received in confidence, maintaining the authority and independence of the
courts, or regulating the administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting,
television or other means of communication, public exhibitions or public entertainments, or (c) that imposes restrictions
on officers in the public service that are required for the proper performance of their functions.'

Section 16, the side note of which describes it as 'Protection from discrimination on the grounds of race, etc',
provides:
'(1) Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall make any provision that is
discriminatory either of itself or in its effect.

'(2) Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a
discriminatory manner by any person or authority.

'(3) In this section the expression "discriminatory" means affording different treatment to different persons attributable
wholly or mainly to their respective descriptions by sex, race, place of origin, political opinions, colour or creed whereby
persons of one such description are subject to disabilities or restrictions to which persons of another such description
are not made subject or are accorded privileges or advantages which are not accorded to persons of another such
description.

'(4) Subsection (1) of this section shall not apply to any law so far as that law makes provision - (a) for the appropriation
of public revenues or other public funds; (b) with respect to persons who are not citizens of Belize; (c) for the
application, in the case of persons of any such description as is mentioned in subsection (3) of this section (or of
persons connected

(1986) 38 WIR 79 at 88
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with such persons), of the law with respect to adoption, marriage, divorce, burial, devolution of property on death or
other like matters which is the personal law of persons of that description; or (d) whereby persons of any such
description as is mentioned in subsection (3) of this section may be subjected to any disability or restriction or may be
accorded any privilege or advantage that, having regard to its nature and to special circumstances pertaining to those
persons or to persons of any other such description, is reasonably justifiable ...

(7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention
of this section to the extent that the law in question makes provision whereby persons of any such description as is
mentioned in subsection (3) of this section may be subjected to any restriction on the rights and freedoms guaranteed
by sections 9, 10, 11, 12 and 13 of this Constitution, being such a restriction as is authorised by section 9(2), paragraph
(a), (b) or (h) of section 10(3), section 11(5), section 12(2) or section 13(2), as the case may be.'

In Francis v Chief of Police (1973) 20 WIR 550 at page 559, Lord Pearson after setting out section 10 of the
Constitution of St Christopher, Nevis and Anguilla (which is similar to section 12 of the Constitution of Belize)
described how it was to be interpreted, stating as follows:
'There are two ways of construing section 10 [section 12 of the Constitution of Belize]. One way is to read into
subsection (1) the necessary limitations as inherent in the fundamental freedoms of expression and communication.
The other is to look first at subsection (1) and see whether according to the literary meaning of the words there is a
prima facie hindering or interference with the freedoms of expression and communication, and, if there is, look to
subsection (2) to see whether such hindering or interference is justifiable.'

The Attorney-General contended that the freedom of expression did not include access to the airwaves or,
put another way, did not include a right to broadcast on television. But it is clear from section 12(2)(b) that
wireless broadcasting and television as a means of freedom of expression are within the contemplation of the
Constitution but are to be regulated by the way the broadcasting is to be administered and the limits of the
technical operation of television. It seems to me therefore that the Chief Justice was correct in holding that:
'Today television is the most powerful medium for communications, ideas and disseminating information. The
enjoyment of freedom of expression therefore includes freedom to use such a medium.'

It has not been contended that any of the provisions of the Broadcasting and Television Act itself are
unconstitutional. The Attorney-General,

(1986) 38 WIR 79 at 89

however, submitted that the Chief Justice was inconsistent in finding that regulation 10 itself was ultra vires
the Constitution when the Act itself was constitutional. But with respect that does not follow, in that it is the
terms of the regulation itself that one needs to examine to see whether or not the powers purported to be
given therein to the authority are unconstitutional as the Chief Justice found them to be. Alternatively it may
be that, while the terms of the regulation do not offend the Constitution, the authority may have acted in such
a way under the regulation as to offend the fundamental rights provisions of the Constitution. The Chief
Justice found that -

'to broadcast on television is today an integral part of the freedom of expression and to place the need for the
authority's consent before one can do what is an integral part of the freedom constitutes a hindrance to that freedom
within the meaning of article 12(1).'

He went on to consider whether regulation 10 having regard to section 12(2) of the Constitution makes
reasonable provision for regulating the administration of television and found that the regulation did not set
out objective standards or guidelines but provided for a 'power of control' in the authority. He went on to
consider Francis v Chief of Police where the use of loud speakers at a public meeting required the
permission in writing of the Chief of Police and cited the following from Lord Pearson's speech (at page 559):
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'Whether or not it might have been better to have some express provision as to the way in which his discretion should
be exercised, he is not without guidance. It is plain from the preamble to the Act and from its provisions as a whole that
its object is to facilitate the preservation of public order. That being the object of the Act, he must exercise his powers
bona fide for the achievement of that object ... Section 5 is not defective, or at any rate not seriously defective, in this
respect. It does not contravene the Constitution.'

The Chief Justice commented that he did not find in the Broadcasting and Television Act and Regulations
much guidance as to how the power or discretion of the authority is to be exercised. The long title of the Act
states it is to provide for -
'the proper administration, management and regulation of broadcasting and television in Belize for the establishment in
Belize of a Broadcasting Authority and for matters connected therewith and incidental thereto.'

That clearly shows the purpose of the Act and the Regulations. Then one has to examine the terms of
regulation 10.

(1986) 38 WIR 79 at 90

The power to make regulation 10 is derived, as the Chief Justice found, from section 9(1)(d) of the
Broadcasting and Television Act which provides for 'the control of the character and standards of
programmes for broadcasting and televising by licensees'. Regulation 10 states:

'The licensee shall not broadcast or televise any party political speech or activity and shall not give any publicity thereto
without the previous consent in writing of the authority and where such consent is granted the authority may prescribe
the terms and conditions for such broadcast with a view to ensuring the preservation of due impartiality and the right of
reply and comment allowing for equal time.'

The Chief Justice considered that section 9(1)(d) of the Act permitted the authority to control the contents of
programmes and, in so finding, he analysed the meaning of 'character and standards'. It seems to me that
those words have a wider meaning than was indicated by the Chief Justice's conclusion and may extend to
ensuring that programmes do not offend against good taste or decency; are not likely to encourage or incite
to crime, or lead to disorder, or be offensive to public feeling; that programmes maintain a proper balance in
the subject matter and a high standard of quality; that they are presented with accuracy and impartiality; and
that the programmes appeal to the outlook and tastes of the television viewers. The Chief Justice expressed
the opinion that:
'A regulation made to control the essential quality and content of programmes for broadcasting and televising would be
expected to set out the rules and guidelines, i.e., the standards by which the programmes and all operators of licences
could be governed and may be judged objectively. The regulation under review does not set out such objective
guidelines or standards but rather provides for a power in the authority to censor programmes, specifically political
broadcasts. Power to censor is one form of control.'

Regulation 10 indicates the matters to be considered by the authority before consent is given to televising
'any political speech or activity'. The authority has to consider whether it is impartial or controversial, whether
it is being made in reply to a political speech that the authority has already permitted to be aired on
television, or to be a general or detailed comment on a political speech already televised, or merely
comments on a political matter of public interest, and to allow equal time on television to reply. Those are the
specific matters by which the authority is to be guided in regard to regulation 10. The authority is also bound
to comply with the provisions of section 12 of the Constitution to protect the freedoms and rights of other
persons; and under section 16 of the Constitution to ensure that 'no person shall be treated in a
discriminatory manner', and 'discriminatory'
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(1986) 38 WIR 79 at 91

as defined in section 16(3) includes 'affording different treatment to different persons, attributable wholly or
mainly to their ... political opinions'.

Thus it may be seen that the 'guidelines', to use the Chief Justice's phrase, are contained in regulation 10
and do not offend, but are complementary to the provisions of the Constitution.

But there remains the question whether or not the authority in the present instance offended the provisions
set out above. They rejected the applications of Mr Courtenay and Mr Hoare without viewing the programme
'Our Turn' to assess it as a programme falling within the purview of regulation 10. It is true that the time the
authority was given in which to consider the matter was unreasonably short, being less than forty-eight
hours, with hardly time to convene a meeting of the board to view the proposed programme. But also it is to
be remembered that the board did not ask for a view of the programme. It was peremptorily rejected on the
ground that it was a 'party political broadcast'. What is meant by that expression? The authority took it to
mean the self-serving political speeches that are made by candidates around the time of a general election.
Mr Hoare described the programme as a 'panel discussion on the state of the economy'.

According to 8 Halsbury's Laws of England (4 Edn) paragraph 1135:

'Party political broadcasting is understood to comprise the series of party political broadcasts which occur at intervals
between general elections: the two broadcasts on the budget: and the special series preceding a general election.
These broadcasts are expressly designed to serve the interest of the political parties. In the case of the series between
general elections a limited number of radio and television broadcasting periods is allotted each year, after consultation
to the main parties. The BBC and IBA provide the broadcasting time but the parties themselves decide upon its
allocation and on the subjects and the speakers. There are separate series on radio and on television.'

Paragraph 1134 of the same volume of Halsbury refers to other types of political broadcasts:
'Ministers and other members of Parliament may appear in political discussion programmes and news commentaries
and references to politicians and political controversy may be referred to in news bulletins. The purpose of programmes
such as these is not to serve the interests of a political party, although it may do so incidentally. These programmes are
part of the comprehensive duty of broadcasting to inform and educate; they must like any other programmes dealing
with controversial matters, be impartial considering the series of programmes as a whole.'

Mr Courtenay in his affidavit stated that the political party which now forms the Government of Belize has
made several television broadcasts, and

(1986) 38 WIR 79 at 92

he named two programmes, 'Face the Nation' and 'Belize Today'. What category of 'political speech' those
programmes represented we do not know. But the authority would know since, presumably, it gave
permission for the above-mentioned programmes to be televised. It would also know whether those
programmes warranted a reply; and had it viewed 'Our Turn' would know into what category within regulation
10 it would fall. However, it does appear prima facie that the authority has been discriminatory.

There are in England certain ministerial broadcasts to which there is no reply, and it may be useful to say
what they are. Again I quote from paragraph 1134:

'There are two categories of ministerial broadcasts. The first category relates to Ministers wishing to explain legislation
or administrative policies approved by Parliament or to seek the co-operation of the public in matters where there is a
 Page 11

general consensus of opinion. Here there is no right of reply by the Opposition. The second category relates to more
important and normally infrequent occasions when the Prime Minister or one of his Cabinet colleagues designated by
him wishes to broadcast to the nation in order to provide information or explanation of events of prime national or
international importance or to seek the co-operation of the public in connection with such events. Here the Opposition
has a right to reply. When the Opposition exercises this right there will also be a discussion of the issues between a
member of the Cabinet and a senior member of the Opposition.'

There is a difference between the practice in England and that in Belize. In England, all political broadcasts
are decided by agreement between the political parties. The BBC and IBA only allot the broadcasting time.
Here in Belize, the authority needs to examine the 'political speech' to the extent indicated by regulation 10
and to ensure that equal time be granted to telecasts of politicians of opposing views.

In the present case, the authority acted arbitrarily without considering the particular programme for which
permission for it to be televised was sought and, in that regard, the authority contravened both sections 12
and 16 of the Constitution of Belize. In the result I find that regulation 10 does not contravene the
Constitution and I would therefore set aside declaration 2. I would vary declaration 3 to read:
'A declaration that, on the facts of the present case, the refusal of the authority to grant consent to televise the
programme "Our Turn" being an arbitrary decision was unconstitutional in that it contravened as against the
[respondents] the provisions of section 12 and 16 of the Constitution of Belize.'

Henry JA. By notice of motion dated 29 May 1985 the respondents sought the following declarations and
orders:
(1986) 38 WIR 79 at 93

'1. A declaration that regulation 10 of the Broadcasting and Television Regulations 1984 is ultra vires in that it is
purported to be made under section 9 of the Broadcasting and Television Act 1983 and the said section does not
authorise the making of such a regulation.

'2. A declaration that the said regulation prohibiting the broadcasting of any party political speech or activity without the
previous consent in writing of the Belize Broadcasting Authority is not binding on the [respondents] and is
unconstitutional, void and of no effect for the reason that it infringes or is calculated to infringe as against the
[respondents] the provisions in relation to fundamental rights guaranteed by sections 12 and/or 16 of the Belize
Constitution.

'3. A declaration that the refusal of the said authority to grant consent to broadcast a series of monthly programmes or
any of them is unconstitutional and a violation as against the [respondents] of the provisions of sections 12 and/or 16 of
the Belize Constitution.

'4. A declaration that the circular issued by the chairman of the said authority to its members reminding them "of the
Belize Broadcasting Authority decision to ensure that party political broadcasts are only approved in the context of up-
coming elections" infringes or is calculated to infringe as against the [respondents] the provisions in relation to the
fundamental rights of freedom of expression guaranteed by section 12 of the Belize Constitution.

'5. A declaration that the [respondents] are entitled to broadcast programmes on radio and television expressing their
views on any matter of public interest or public policy without the previous consent in writing or otherwise of the said
authority or of any other person or authority.

'6. An order restraining the said authority from attempting to enforce in any way the refusal referred to in paragraph 3
above or the policy referred to in paragraph 6 above, further directing the said authority to withdraw the offending
letters and circular, and prohibiting the said authority from discriminating in any way against any persons who permit
the broadcasting of views as stated in paragraph 5 above without the previous consent of the said authority.
 Page 12

'7. An order directing owners and/or operators of radio and television stations to observe the provisions of sections 12
and 16 of the Belize Constitution and of the Broadcasting and Television Act and Regulations in so far as they require
impartiality and the right of reply and comment, allowing for equal time.'

In a written judgment dated 30 July 1985 the Chief Justice granted declarations 2 and 3. He refused
declarations 1, 4 and 5 and considered it unnecessary to make orders 6 and 7. This is an appeal against that
judgment.

The first ground of appeal is that the Chief Justice erred in law when he ruled against the preliminary
objection of the authority. At the commencement of the appeal a preliminary objection to the hearing of the
appeal and a counter-objection to the hearing of the preliminary objection were
(1986) 38 WIR 79 at 94

argued but abandoned, both parties intimating that they wished to obtain the views of this court on the
substantial constitutional issues raised in the matter rather than have it disposed of on technical objections. It
is surprising therefore that this first ground of appeal was pursued since, if it is successful, it will render
unnecessary a consideration of the constitutional issues raised on the appeal. It was, however, submitted
that since no licences to broadcast have been issued under the Broadcasting and Television Act 1983 ('the
Act') to Mr Arthur Hoare (the second respondent) or to anyone else, the Chief Justice ought to have upheld
the preliminary objection and refused to hear the matter. A person who seeks to bring an action for
constitutional redress in relation to broadcasting activities (it was submitted) can only do so without a licence
if he alleges that the requirement to have a licence is unconstitutional. It was further submitted that the court
will not lend its aid to a man who founds his cause of action on an illegal act. In support of these submissions
counsel cited Attorney-General v Antigua Times (1975) 21 WIR 560 and Off Course Betting (1955) Ltd v
Chen (1972) 18 WIR 340.

The Act was assented to by the Governor-General on 24 August 1983 and gazetted on 27 August 1983.
Section 5 of the Act provides as follows:
'(1) No persons shall establish or operate any radio or television station or use any apparatus or installation for the
purposes of broadcasting except under and in accordance with a licence issued to him by the Minister and upon
payment of such fee as the Minister prescribes.

'(2) An application for licence must be made in writing to the chairman of the board in such form and containing such
particulars as the Minister approves.

'(3) The board shall within four weeks from the date of its receiving an application submit that application to the Minister
with a recommendation for the grant or refusal of the application, stating in either case the reasons for its
recommendation.

'(4) The Minister may, upon receiving the recommendation of the board, issue a licence to the applicant on such terms
and conditions as he thinks fit or he may refuse the application.

'(5) Every licence issued under this Act is effective for such period from the date of issue as the Minister may determine
in each case and is renewable for a like period unless the Minister otherwise directs.'

On the date of commencement of the Act radio and television stations were already in operation, but the Act
contains no provisions in relation to them. Furthermore Regulations prescribing the relevant fees were not
made until June 1984. In the meanwhile the stations have continued to operate without licences and we have
been told that, although applications for licences have been made, no response to these applications has
been forthcoming; nor has any attempt been made to enforce the provisions of section 5.
(1986) 38 WIR 79 at 95
 Page 13

The question considered in the first case cited in relation to the issue of locus standi was whether the words
'any person' in section 15(1) of the Constitution of Antigua related only to natural persons. No such question
arises here. It is true that in that case the party applying for constitutional redress in relation to activities for
which a licence was required alleged that the requirement to have a licence was unconstitutional and was
also by statute deemed to have a licence because the carrying on of those activities had preceded the
statute requiring a licence for the purpose. There is, however, nothing in the judgment to indicate that if, as in
the instant case, the statute was silent as to the persons carrying on the activities prior to the
commencement of the statute, these persons could only seek constitutional redress if they alleged that the
requirement for a licence was unconstitutional.

The second case cited is authority for the proposition that a contract forbidden by statute can give rise to no
cause of action to a party who seeks to enforce it. I do not, however, find it of assistance in relation to the
preliminary objection. As the Chief Justice observed:
'Because the [respondents] do not have a licence to operate a television station it does not follow that there can be no
finding of an infringement of their fundamental right as claimed. That the [respondents] are without a licence may very
well be part of the infringement claimed and it would be wrong to determine or assume at this stage that the
[respondents] have no case before hearing the substance of their complaint.'

In my view this ground of appeal fails.

The second ground of appeal is in the following terms:

'(a) [The trial judge erred in law] when he held that regulation 10 of the Broadcasting and Television Regulations 1984
prohibiting the broadcasting of any party political speech or activity without the previous consent in writing of the Belize
Broadcasting Authority was not binding on the respondents and was unconstitutional, for the reason that it infringed as
against the respondents the provisions in relation to the fundamental rights guaranteed by sections 12 and 16 of the
Constitution of Belize.

'(b) [The trial judge erred in law] when he held that regulation 10 of the Broadcasting and Television Regulations 1984
constituted a hindrance within the meaning of section 12 of the Constitution and that the effect of the regulation was to
provide for the exercise of discretion in a discriminatory fashion, contrary to section 16 of the Constitution.'

Regulation 10 of the Broadcasting and Television Regulations 1984 is as follows:

'The licensee shall not broadcast or televise any party political speech or activity and shall not give any publicity thereto
without the previous

(1986) 38 WIR 79 at 96
consent in writing of the authority and where such consent is granted the authority may prescribe the terms and
conditions for such broadcast with a view to ensuring the preservation of due impartiality and the right of reply and
comment, allowing for equal time.'

Sections 12 and 16 of the Constitution of Belize, in so far as they appear relevant, are as follows:
'12. (1) Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression,
including freedom to hold opinions without interference, freedom to receive ideas and information without interference,
freedom to communicate ideas and information without interference (whether the communication be to the public
generally or to any person or class of persons) and freedom from interference with his correspondence.

'(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention
of this section to the extent that the law in question makes reasonable provision - (a) that is required in the interests of
defence, public safety, public order, public morality or public health; (b) that is required for the purpose of protecting the
 Page 14

reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings,
preventing the disclosure of information received in confidence, maintaining the authority and independence of the
courts, or regulating the administration of the technical operation of telephony, telegraphy, posts, wireless broadcasting,
television or other means of communication, public exhibitions or public entertainments, or (c) that imposes restrictions
on officers in the public service that are required for the proper performance of their functions.

'16. (1) Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall make any provision that is
discriminatory either of itself or in its effect.

'(2) Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a
discriminatory manner by any person or authority.

'(3) In this section, the expression "discriminatory" means affording different treatment to different persons attributable
wholly or mainly to their respective descriptions by sex, race, place of origin, political opinions, colour or creed whereby
persons of one such description are subjected to disabilities or restrictions to which persons of another such description
are not made subject or are accorded privileges or advantages which are not accorded to persons of another such
description.

'(4) Subsection (1) of this section shall not apply to any law so far as that law makes provision - (a) for the appropriation
of public revenues or other public funds; (b) with respect to persons who are not citizens of Belize; (c) for the
application, in the case of persons of any such description as is mentioned in subsection (3) of this section (or of
persons

(1986) 38 WIR 79 at 97
connected with such persons), of the law with respect to adoption, marriage, divorce, burial, devolution of property on
death or other like matters which is the personal law of persons of that description; or (d) whereby persons of any such
description as is mentioned in subsection (3) of this section may be subjected to any disability or restriction or may be
accorded any privilege or advantage that, having regard to its nature and to special circumstances pertaining to those
persons or to persons of any other such description, is reasonably justifiable ...

'(7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention
of this section to the extent that the law in question makes provision whereby persons of any such description as is
mentioned in subsection (3) of this section may be subjected to any restriction on the rights and freedoms guaranteed
by sections 9, 10, 11, 12 and 13 of this Constitution, being such a restriction as is authorised by section 9(2), paragraph
(a), (b) or (h) of section 10(3), section 11(5), section 12(2) or section 13(2), as the case may be.'

In support of this ground it was argued firstly that, the constitutionality of the Act not being in question, it was
inconsistent for the Chief Justice to find that section 9 of the Act authorised the making of regulation 10 but
that regulation 10 was unconstitutional. The Chief Justice found that section 9(1)(d) of the Act empowered
'the making of a regulation on the control of the content of programmes'. He also found that regulation 10
provided a power in the authority to censor programmes, specifically political broadcasts, and that the power
to censor was one form of control. Consequently, he concluded that section 9 of the Act authorised the
making of regulation 10. Later in his judgment he expressed the view that:
'the right to freedom of expression embodies not only the right to use an appropriate medium, i.e. television, but also
the right to be free of censorship.'

Finally, he found that the power given to the authority by regulation 10 was arbitrary and, consequently,
discriminatory and in breach of sections 12 and 16 of the Constitution. It would seem therefore that the Chief
Justice must have been of the view that section 9 of the Act, in so far as it authorised the making of a
regulation which permitted arbitrary and discriminatory censorship, was unconstitutional. However, the issue
of the constitutionality of the Act was not raised in the proceedings and the Chief Justice made no express
finding on it. Consequently, in my view his finding that regulation 10 was unconstitutional was not
inconsistent with his refusal to grant declaration 1.
 Page 15

The second argument in support of ground 2 is that the power conferred by regulation 10 is not, as the Chief
Justice found, arbitrary or discriminatory because the Act and the Regulations provide guidelines indicating
the circumstances in which and the purpose for which the power could be
(1986) 38 WIR 79 at 98

exercised. In Francis v Chief of Police (1973) 20 WIR 550 one of the questions for consideration was
whether section 5 of the Public Meetings and Processions Act 1969 of St Christopher, Nevis and Anguilla
was so defective as to be unconstitutional because it did not expressly lay down guidelines for the exercise
by the Chief of Police of his power to grant permission for the use of noisy instruments. In delivering the
opinion of the Privy Council Lord Pearson said (at page 559):
'Whether or not it might have been better to have some express provision as to the way in which his discretion should
be exercised, he is not without guidance. It is plain from the preamble to the Act and from its provisions as a whole that
its object is to facilitate the preservation of public order. That being the object of the Act, he must exercise his powers
bona fide for the achievement of that object. Roncarelli v Duplessis (1959) 16 DLR (2d) 689, per Rand J (with whom
Judson J concurred) at page 705, per Martland J (with whom Kerwin CJ and Locke J concurred) at page 742 and per
Abbott J at page 729. Section 5 is not defective, or at any rate not seriously defective, in this respect.'

The Chief Justice in the instant case considered this dictum but concluded:
'In the instant case I do not find in the Act or the Regulations themselves such guidance as to the way in which the
power or discretion is to be exercised. The regulation is a straightforward grant of power to allow or disallow political
broadcasts as suggested above. After consent is granted to have a broadcast, there is the consideration of due
impartiality. My view of the regulation is confirmed on reference to the earlier regulation 4(a) and (b). By virtue of
regulation 4(b) in broadcasting a political programme or programmes as respects matters of political controversy the
licensee is guided by the requirement of due impartiality. Having so provided in regulation 4(b) the purpose of having a
regulation saying even before you broadcast get consent did not become clear.'

With great respect it seems to me that regulation 10 contains safeguards which are additional to those
contained in regulation 4(b) but are designed for the same purpose of ensuring impartiality in the allocation of
time for political broadcasts and ensuring a right of reply. This is clearly so in relation to the latter part of the
regulation dealing with conditions which may be attached to the grant of consent by the authority. But if the
authority is to ensure impartiality by attaching conditions to the grant of consent, to be effective it must
equally have power to refuse consent for the same purpose. For this reason it seems to me that regulation
10 must be read as a whole and, although the power to refuse consent may at first appear to be an arbitrary,
unfettered power independent of the later power to grant consent, in my view the power to refuse is one
which must also be exercised 'with a view
(1986) 38 WIR 79 at 99

to ensuring the preservation of due impartiality and the right of reply and comment'. Accordingly, in my view
the regulation contains guidance as to the way in which the authority's discretion should be exercised, and
this confirms the guidance contained in the long title to the Act:
'An Act to provide for the proper administration, management and regulation of broadcasting and television in Belize for
the establishment in Belize of a Broadcasting Authority and for matters connected therewith or incidental thereto'

and in the provisions of the Act itself. Preservation of due impartiality and the right of reply and comment
would be a valid consideration in connection with the administration of television. In my view therefore,
regulation 10 contains reasonable provisions required for the purpose of regulating the administration of
television and, by virtue of sections 12(2)(b) and 16(7) of the Constitution, is not in contravention of section
12 or section 16.

The third ground of appeal is as follows:

 Page 16

'(1)(a) [The trial judge erred in law] when he held that the refusal by the Belize Broadcasting Authority to grant consent
to broadcast a series of monthly programmes or any of them was unconstitutional and a violation as against the
respondents of the provisions of sections 12 and 16 of the Belize Constitution.

'(b) [The trial judge erred in law] when he held that the refusal by the Belize Broadcasting Authority to allow a person to
broadcast or televise something, in other words, to communicate ideas and information was a hindrance to that
person's freedom to communicate and was discriminatory contrary to sections 12 and 16 of the Constitution ...'

The authority's response to the applications made by Mr V H Courtenay and Mr Hoare is contained in letters
dated 21 May 1985 stating in each case that approval was not being given 'in accordance with the existing
policy on party political broadcasts'. That policy is expressed in a letter from the chairman to members of the
authority as a 'decision to ensure that party political broadcasts are only approved in the context of up-
coming elections'. In my view, that decision (which amounts to an arbitrary ban on all party political
broadcasts except at election time) is not one which could properly be made under regulation 10. So far from
ensuring the right of reply and comment it would effectively stifle comment. On the face of it the authority's
refusal to permit the broadcast is a hindrance of the respondents' enjoyment of freedom of expression and, if
it is not authorised by law, would be in breach of section 12 of the Constitution.

It was argued on behalf of the authority that the right to broadcast was not a constitutional right because, the
airwaves being limited, the right to
(1986) 38 WIR 79 at 100

use them must necessarily be a limited right and not, like a constitutional right, an absolute right. In support
of this argument C B S v Democratic National Committee, 412 US 94 (1972) was cited. Whatever may be the
position in the USA it seems to me that the short answer to this argument is that section 12(2)(b) by
specifically referring to wireless broadcasting and television makes it clear that the rights contemplated by
section 12 include the right of freedom of expression by these means.

It was also argued that since Mr Hoare was committing an illegal act in broadcasting without a licence he
ought not to be able to obtain the aid of the court in furtherance of that illegality. That might well be so in
ordinary circumstances. The authority did not, however, refuse the applications on the ground that Mr Hoare
was not a licensee. Indeed, it is clear from the circular letter to members from the chairman of the authority
that the authority, while recognising that the operators were unlicensed, was in May 1985 requiring them to
comply with Regulations which applied to 'licensees' and which had been made eleven months earlier. That
letter is as follows:
'Please see the two attached applications from CTV Channel 9 and also from the People's United Party requesting
permission to air a thirty-three minute programme on television stations.

'As you will see from the letters it appears that we are talking about party political broadcast. In this connection I would
like to remind you of the Belize Broadcasting Authority's decision to ensure that party political broadcasts are only
approved in the context of up-coming elections. The point should also be noted that the authority at its previous
meeting pointed out the fact that licences have not yet been issued to operators but that they are still subject to the
Belize Broadcasting Act and the Belize Broadcasting Regulations 1984. The relevant section reads as follows: 'The
licensee shall not broadcast or televise any party political speech or activity and shall not give any publicity thereto
without the previous consent in writing of the authority and where such consent is granted the authority may prescribe
the terms and conditions for such broadcast with a view to ensuring the preservation of due impartiality and the right of
reply or comment allowing for equal time.

'I shall be grateful if as a matter of urgency you will indicate on the application with your support approval of the request
from CTV 9 and the People's United Party. Grateful you will see this matter with urgency.'
 Page 17

Under section 4 of the Act it is the function of the authority to advise the Minister regarding the terms and
conditions subject to which licences are to be issued. Applications for licences were made within the
prescribed time. In the circumstances, it seems to me that the authority has condoned the illegality and
cannot rely on it as an answer to the claim for constitutional redress.
(1986) 38 WIR 79 at 101

The basis on which the authority refused permission to broadcast was, as I have indicated, a decision which
could not properly be made under regulation 10. It was an arbitrary decision which could have had no regard
to the content of the material to be broadcast because it had not seen the material. The refusal was not
expressed or shown to be authorised by any law such as is mentioned in section 12(2) of the Constitution. It
was therefore in breach of section 12 of the Constitution.

I respectfully agree with the Chief Justice that refusal of consent to the respondents to broadcast a
programme on the ground that the programme was to be a party political broadcast was treatment to them
on the basis of their political opinions and was discriminatory in view of the fact that other political broadcasts
had been permitted.

In my view the authority's refusal to grant permission to Mr Courtenay and Mr Hoare to broadcast was in
breach of sections 12 and 16 of the Constitution. They were entitled to declaration 3.

For the reasons which I have given I would allow the appeal in part and vary the decision of the Chief Justice
by refusing declaration 2. Otherwise I would dismiss the appeal.

Sir Albert Staine JA. I have had the benefit of reading the judgments of Sir James Smith P, and that of
Henry JA. With respect, I agree with the reasoning of each.

Appeal allowed in part.