Privy Council Appeal No 49 of 2005

(1) Central Broadcasting Services Ltd
(2) Sanatan Dharma Maha Sabha of Trinidad and Tobago Appellants
v.
The Attorney General of Trinidad and Tobago Respondents

FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 4th July 2006

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Present at the hearing:-

Lord Hoffmann
Lord Hope of Craighead
Lord Hutton
Lord Brown of Eaton-under-Heywood
Lord Mance
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[Delivered by Lord Mance]

1. In December 1999 and September 2000 the second and the first appellants
respectively applied for a radio broadcasting licence. The second
appellants, the Sanatan Dharma Maha Sabha of Trinidad and Tobago Inc.
("SDMS"), are a substantial religious and cultural organisation. Amongst
other things, they run schools, focusing, the Board understands, on the
large Hindu population in Trinidad and Tobago. Their licence application
on 1st December 1999 was for a Hindu radio station aimed at an estimated
35% of the total listening market. Existing stations were said not to
cater for the Hindu religion. In August 2000 SDMS incorporated the first
appellants, Central Broadcasting Services Limited ("CBSL"), which
submitted the second application on 1st September 2000. This application
was directed at a market of the same estimated size as that in SDMS's
application, but described as the East Indian Youth Market, for which
again existing stations were said not to cater. It was said that the
proposed new station would be "for the enhancement and better
understanding of Youth Related Issues, and the programme format will
reflect this through its religious, cultural, musical, educational and
discussion contents".

2. The applications were made under the Wireless Telegraphy Ordinance
(Chapter 36 No. 2) of 1936, which in terms required any person installing
or using any such wireless apparatus to obtain (in the absence of any
applicable regulations made under the Ordinance) a "special licence"
issued by the Governor General, and provided that the Governor General
might "appoint a Wireless Officer and such other officers and servants as
may be necessary for the purposes of the Ordinance". With the coming of
independence and republican status, this provision fell at the material
times to be read as requiring a licence issued by the President of
Trinidad and Tobago acting on the advice of the Cabinet or a Minister
acting under the general authority of the Cabinet. Applications were in
the first instance evaluated by the Director of the Telecommunications
Division of the relevant Ministry, the identity, or at least name, of
which changed on several occasions (from the Ministry of Communications
and Information Technology in early 2001, to the Ministry of Science,
Technology and Tertiary Education between December 2001 and 2002 to,
thereafter, the Ministry of Public Administration and Information).
Applications which the Director of the Telecommunications Division
approved would be forwarded with his corresponding recommendation for the
Minister's attention.

3. The Director at the time of the Telecommunications Division, Mr Ragbir,
was prompt to evaluate CBSL's application. After requesting and receiving
certain information in September 2000, he wrote to the Permanent Secretary
of the Ministry on 10th October 2000 to report that the application "has
met all the necessary criteria for a broadcasting station" and that the
"division has no objection to the grant of this licence". But no decision
was made regarding any licence and the appellants wrote to the Ministry
seeking information. By letter dated 5th March 2001 the Permanent
Secretary said he would investigate and communicate again "shortly".
Internally, this led to a further memorandum from the Director to the
Permanent Secretary dated 15th March 2001, in which he referred to "your
memorandum dated 10th October 2000" and advised that SDMS's application
"was sent to you under the Company's name Central Broadcasting Services
Limited with my recommendation". The Director may have meant to refer to
his own memorandum dated 10th October 2000 or there may be another missing
memorandum. Either way it is clear that (despite an apparently contrary
statement in his affidavit sworn 16th August 2002) he was treating CBSL's
application as effectively embracing and subsuming SDMS's application and
was recommending it accordingly. Before the courts below there was an
issue whether there were thereafter two applications or only one by CBSL,
as the Court of Appeal held. Realistically, Sir Fenton Ramsahoye SC
representing the appellants was in oral submissions content to put this
issue aside, and focused attention on CBSL's application which was
unquestionably evaluated and recommended.

4. Again however nothing was heard by the applicants, until in August 2002
it came to their attention that a radio broadcasting licence had been
granted to a company called Citadel Limited ("Citadel"), whose directors
were a Mr Louis Lee Sing and Mr Anthony Lee Aping. A new administration
had held office since the general election in December 2001, which had
resulted in a tie with each party having 18 seats in the House of
Representatives. The Minister of Science, Technology and Tertiary
Education from December 2001 was Mr Hedwidge Bereaux. In a media
conference on 1st August 2002 Mr Bereaux stated that Citadel had applied
for its licence on 13th March 2001. A search of the Companies Registry
showed the appellants that Citadel was only incorporated on 28th August
2001.

5. The appellants in these circumstances began proceedings on 16th August
2002 against the Attorney General, being the appropriate representative of
the State for that purpose under section 76(2) of the Constitution of
Trinidad and Tobago. They alleged that "The present administration
arbitrarily and quickly awarded a radio licence to Citadel Limited in
disregard of other applicants whose applications had been pending and were
first in time". They claimed declarations that they had been denied
equality of treatment contrary to section 4(b) and (d) of the Constitution
and that their right to freedom of conscience, religious belief and
observance and to freedom of thought and expression had been denied
contrary to section 4(h) and (i) of the Constitution. They sought an order
directing the grant of licences or such further orders and directions as
might be necessary and appropriate.

6. The Constitution of Trinidad and Tobago provides:
"Rights enshrined
4. It is hereby recognised and declared that in Trinidad and Tobago there
have existed and shall continue to exist, without discrimination by reason
of race, origin, colour, religion or sex, the following fundamental human
rights and freedoms, namely-
(a) ...
(b) the right of the individual to equality before the law and the
protection of the law;
(c) ...
(d) the right of the individual to equality of treatment from any public
authority in the exercise of any functions;
(e) ...
(f) ...
(g) ...
(h) freedom of conscience and religious belief and observance;
(i) freedom of thought and  expression;
(j) ...
(k) ..."

7. The proceedings were supported by two affidavits sworn on 16th August
2002, one from Mr Satnarayan Maharaj, the secretary general of SDMS, the
other from Mr Ragbir, the former Director of the Telecommunications
Department who had retired on 13th April 2002, having been on
pre-retirement leave from 30th November 2001. Mr Maharaj's affidavit
attested to the course of events set out above so far as it involved
action by or communications with the appellants. By an application only
made in January 2004 the Attorney General applied successfully to the
trial judge, Best J, to strike out certain passages in it as containing
hearsay. These were passages based on a newspaper report dated 9th August
2002 regarding, first, the granting by the Cabinet of the Citadel licence
to Mr Sing, described as an open supporter of the new administration, and,
second, statements in that connection by the Minister, Mr Bereaux, when
announcing and giving his explanation of the grant at the media conference
following the Cabinet meeting at which the grant was made. Sir Fenton
challenges the basis for the striking out what were reports of ministerial
statements intended to inform the public. He points out that Smith J had
on 3rd July 2003 ordered that, unless the respondents filed affidavits by
29th August  2003, the matter should proceed on the basis of the
appellant's affidavits; that, in response to this order, affidavits had
been sworn on 28th August 2003 by the Minister, Mr Bereaux, and by Miss
Mala Guinness (Deputy Director of the Telecommunications Division who had
effectively stepped into Mr Ragbir's shoes after he went on pre-retirement
leave on 30th November 2001); and that these two deponents had responded
generally to the appellants' two affidavits (although not specifically to
the passages to which the respondents later objected). The Board sees some
force in these submissions by Sir Fenton but does not consider that the
outcome of this appeal turns on whether the judge was correct to strike
out the passages in question. It is unnecessary to take further time
considering Sir Fenton's challenge to their striking out.

8. Mr Ragbir in his affidavit recounted the position within the
Telecommunications Division, as set out above, and produced certain lists
of outstanding and recommended applications, including a list submitted by
him on 30th October 2001 to the Minister under the previous
administration, Dr Moonilal. This included CBSL as one of seven
outstanding applications which Mr Ragbir had as at that date submitted
with recommendations for the Minister's attention.

9. Mr Bereaux said that he never saw any of the lists produced by Mr
Ragbir. The only list he saw was a list of outstanding applications
requested by him in February 2002 and received by him from Miss Mala
Guinness with a covering letter dated 4th April 2002. However, the
covering letter disclosed that there was "a considerable lack of
organisation and an absence of proper systems and mechanisms in the
Division", which remained unresolved notwithstanding her "bringing it to
the attention of a number of Permanent Secretaries on several occasions",
that the Division was unable to locate some files and that it was
therefore not possible to say whether the enclosed list was complete. The
list was headed "Interim Draft - Unedited" and contained only five
applications. One of them was that by Citadel, against which there was a
note that: "The Telecommunications Division received this application in
the Ministry in late March 2002 and will be attending to it as soon as
possible". Neither of the appellants' applications was included.

10. Miss Mala Guinness's affidavit was consistent with the appellants'
evidence regarding their applications. She explained that even prior to Mr
Ragbir's pre-retirement departure the Division was under-staffed. At some
time after his pre-retirement, she recalled conversations with Mr Maharaj
regarding his application for a licence, and commented that "It may be
that his was one of the files that could not be located at that time". She
said that after Mr Ragbir's pre-retirement she had advised that
"recommendations for wireless licences should be made in the context of a
Broadcast Policy" to make "efficient use of this limited and lucrative
resource", and that the Division had ceased to make recommendations
pending the establishment of such a policy.  As Warner JA observed in the
Court of Appeal, this does not explain the expedited processing and grant
of Citadel's licence, regarding which Miss Guinness went on to produce
certain formal documentation. This included a copy of Part 1 of an
application form dated 13th March 2001 (the date to which Mr Bereaux later
referred in the media conference on 1st August 2002). But the note to the
Interim Draft - Unedited list enclosed with Miss Guinness's letter dated
4th April 2002 indicates that this application was only seen by the
Telecommunications Division in March 2002.

11. The next dated document produced by Miss Guinness is a letter dated
16th January 2002 attaching a copy of the Citadel application (or rather
it appears, of Part 1 of the seven Parts required by the standard
application form). This is date-stamped as seen in the Division on 28th
April 2002, although in the light of the note on the Interim Draft -
Unedited list it must presumably have been received by March 2002. This
copy of the application was itself apparently mislaid and so re-submitted
on 12th June 2002 under cover of a letter on Citadel's letter-head,
showing an existing frequency 92.5FM. The reference to an existing
frequency elicited a vigorous request from the Permanent Secretary dated
18th July 2002 seeking an explanation. He pointed out that the frequency
92.5FM had been allocated to Tobago Broadcasting Systems Limited, of which
Mr Sing was the manager under contract and he made clear that "Processing
your application would be most inappropriate in the absence of a
satisfactory and written explanation". In anticipation that Citadel could
provide a satisfactory explanation, he invited Citadel to submit Parts 2
to 7 required by the application form.

12. There is no indication of any written explanation of Citadel's use of
the frequency 92.5FM. The only further letter produced by Miss Guinness is
a letter dated 24th July 2002 from Citadel, submitting Parts 2 to 7 as
required. This letter is noted as seen by the Permanent Secretary on 30th
July and sent on to Miss Guinness on 7th August 2002. Within a very short
time, Citadel was given a licence to operate on, Miss Guinness records, a
frequency of 95.5FM. In a second affidavit sworn 16th January 2004, which
was excluded by the trial judge but admitted by the Court of Appeal, Mr
Bereaux gave as the explanation that "developments involving the use by
certain principals of Citadel [i.e. query, Mr Sing] of the frequency FM
92.5 by agreement with Tobago Broadcasting Systems Limited led to a
situation which I considered and concluded needed to be resolved quickly.
I therefore requested expedition of Citadel's application". Citadel was
thus given a new licence on an additional and up to that point unused
frequency. Mendonca JA commented, appositely, on this explanation in the
Court of Appeal that "With all due respect, that really says nothing. .. I
am not satisfied that what is said in that paragraph provides any
justification for the different treatment granted to Citadel Ltd" (cf
paragraph 44 of Mendonca JA's judgment, with which Hamel-Smith JA agreed
in paragraph 37).

13. On Monday 19th January 2004, the first day of the hearing before Best
J, the respondents filed and sought to adduce a further affidavit sworn on
16th January 2004 by Gillian Macintyre, Acting Permanent Secretary in the
Ministry. The Judge refused to admit this affidavit (because of its
lateness and the unfairness to the appellants), and the Court of Appeal
upheld his refusal. But at the respondents' insistence, the affidavit
appeared in the bundle of documents put before the Board, and (for good
reason, as will appear, and without objection) Sir Fenton referred the
Board to documents produced to it. These show that in November 2003 (over
three years after Mr Ragbir as the Division's Director had approved the
CBSL application and forwarded it for the Minister's attention) the
Telecommunications Division was now suggesting that insufficient
information had been provided.

14. On 5th November 2003 an official sought further information by noon on
Friday 7th November 2003 on four points (the first three on their face
minor technical points, the fourth relating to manpower and financial data
under Sections 5 and 7 of the original application). On 11th November 2003
the Minister himself wrote effectively limiting the outstanding
information to two aspects of the fourth point. He said that "While the
information provided so far has enabled us to positively evaluate certain
aspects of your submission, there remains some information which is
outstanding and which is necessary for the successful consideration of
your application". He required this as a matter of urgency. On 17th
November 2003 CBSL replied with brief information "without prejudice to
the pending constitutional motion". At a Cause List hearing on 19th
November 2003 the parties indicated their readiness to proceed to a
hearing which was fixed for 19th to 21st January 2004. At some point the
Telecommunications Division made a telephone call requesting information
under Sections 1 (General), 5 (Manpower), 6 (Incorporation) and 7
(Financial). CBSL responded by letter dated 18th December 2003 with
several pages of information but simply drawing attention as regards
financing arrangements to the previous letter dated 17th November 2003.
The Division did not complain that this was insufficient or in what
respect until Miss MacIntyre's affidavit, filed a month later on the first
day of the hearing before Best J.  There she said that "no further
financial details were provided as was requested nor have these essential
details been provided to date". She went on to say that an (unspecified)
broadcast policy had been approved in Cabinet on 2nd January 2004, and
that there were some 32 outstanding applications and that "a process is
underway to evaluate these applications in the context of the Broadcast
Policy and the frequencies available".

15. The Judge's refusal to admit Miss Macintyre's affidavit meant that it
was not open to the Attorney General or the State which he represents to
make any suggestion thereafter that the appellants' application for a
licence was (contrary to its recommendation by the Director in 2000 and
2001) either incomplete or defective. The hearing proceeded and judgment
was given on the basis that the State had, for over three years, had
before it but had failed to give due consideration to an application which
was in order and had been recommended by the Director of the
Telecommunications Division as long ago as October 2000. The matter also
proceeded in the Court of Appeal on this basis. Hamel Smith JA was thus
able to say "There is nothing to suggest that there is a risk that the
application will not be successful" (paragraph 36).

16. Following the hearing before him, Best J gave judgment on 4th February
2004, holding that there had been unequal treatment contrary to section
4(b) and (d) of the Constitution. Having so concluded, he found it
unnecessary to consider the claim of breaches of section 4(h) and (i). But
he considered it perverse, in the circumstances as they appeared at that
date, to seek an order obliging the Cabinet to grant a licence or usurping
the Cabinet's decision-making power. He adjourned the issue of redress to
a Master.  On 11th February 2004 SDMS wrote to the Prime Minister
enclosing a copy of the judgment and asking that a licence be granted by
20th February 2004, failing which it would "be forced to continue its
journey for justice, equality and fair play in the courts of this land".
The Minister of Public Administration and Information, Dr Saith, replied
on 25th February 2004 saying that "The matter is receiving attention and
further correspondence will be addressed to you". None was, and the
appellants lodged grounds of appeal dated 26 February 2004.

17. The appeal was heard in October 2004. During its course the Court of
Appeal sought information about licences granted and was provided with a
list by the new Telecommunications Authority (established under the
Telecommunications Act 2001 which came into force on 30th June 2004). The
list showed only two licences for applications pre-dating 2001. In respect
of all thirteen applications the date of recommendation was 19th December
2003 and the date of grant of a licence 24th June 2004. No information
appeared in the letter or list about any application by the appellants.

18. The Court of Appeal in its judgment delivered on 27th January 2005
held, disagreeing with the Judge, that only CBSL could be entitled to any
relief. The confining of relief to CBSL is, as the Board has mentioned, no
longer in issue before the Board. Before the Court of Appeal a central
issue was whether proof of mala fides was a pre-requisite to establishing
a case of infringement of the right to equal treatment. Hamel-Smith JA and
Warner JA held that it was not. While disagreeing with the Judge's
conclusion that the Ministry's inaction in the case of the appellants
(compared to its action in the case of Citadel) amounted to a constructive
refusal of a licence, they upheld his conclusion that the Ministry's
conduct amounted to a breach of CBSL's constitutional right to equal
treatment.

19. Mendonca JA in contrast considered that mala fides was necessary, but
held on the facts that there was sufficient evidence of intentional and
irresponsible conduct which was, in the absence of any justification,
sufficient to rebut the presumption of regularity and give rise to an
inference of mala fides. Warner JA did not consider that mala fides had
been shown. But Hamel-Smith JA, while considering in common with Warner JA
that proof of mala fides was not required, also said that for the reasons
which Mendonca JA gave, he did not depart from Mendonca JA's decision and
findings. So there was a majority in favour of the appellants on the issue
of inequality of treatment, both on the basis that mala fides was not a
pre-requisite and, it seems (though this is not perhaps entirely clear),
on the basis that it was. No cross-appeal was filed by the Attorney
General against these conclusions.

20. The Board was invited by Mr Ramlogan, who followed Sir Fenton, to
consider further whether mala fides is a pre-requisite to a finding of
unequal treatment under the Constitution, having regard to the authorities
in Trinidad and Tobago and the Board's own reservations expressed obiter
in Bhagwandeen v. Attorney General of Trinidad and Tobago (Privy Council
Appeal No. 45 of 2003) [2004] UKPC 21. But, in the absence of any
cross-appeal before the Board and in circumstances in which Mr Peter Knox
for the respondents had had no previous notice of any intention to address
such an issue, it would have been inappropriate to accede to Mr Ramlogan's
invitation, and the Board declined to do so. The Board has however one
observation to make on the treatment in the courts below of the issue of
inequality. In both courts it was assumed that the unequal treatment which
was established justified a declaration of breach both of section 4(b) and
of section 4(d) of the Constitution. The Board does not consider this to
be correct. Section 4(d) is the provision covering circumstances such as
the present. Section 4(b) is in the Board's view directed to equal
protection as a matter of law and in the courts: see Bhagwandeen v.
Attorney General of Trinidad and Tobago at paragraph 14.  There is here no
suggestion that either the law itself or its administration by the courts
was discriminatory. But the established breach of section 4(d), against
which the Attorney General has lodged no appeal, is by itself a sufficient
finding of discrimination for the appellants' purposes.

21. The Court of Appeal agreed with Best J that the established
discrimination made it unnecessary to consider the further claims of
breach of section 4(h) and (i) of the Constitution. Mendonca JA accepted
(in paragraph 48) that it might have been necessary to consider those
further claims if it appeared that they might offer grounds for further
relief not appropriate under section 4(b) and (d).  Warner JA considered
(in paragraph 20) that the right to freedom of religion must attach to a
natural person, and that there was no evidence of any refusal of a
licence, or that CBSL's application had ever been placed before the
Cabinet. She concluded therefore that there had been no denial of freedom
of expression. The Court of Appeal concluded that the Cabinet could and
should now, in Hamel-Smith JA's words (in paragraph 36), be trusted to act
responsibly and fairly in determining whether or not a licence should be
granted to the appellants. Distinguishing the circumstances which existed
before the Board in Observer Publications Ltd. v. Matthew [2001] UKPC 11:
58 WIR 188, the Court of Appeal dismissed the appellants' appeal seeking
an order for the grant of a licence. However, it concluded that the
Judge's intentions should be clarified and that an order should be made
directing that the matter be placed before the Cabinet for its
consideration within 28 days, while the Judge's order that the issue of
"redress" be adjourned to a Master should be amended to require the matter
to be referred to the master for the assessment of damages (cf per
Mendonca JA at paragraphs 49-51, with which Hamel-Smith JA agreed at
paragraphs 34 and 38 and Warner JA agreed at paragraph 36).

22. On 10th February 2005 the respondents filed a 12 page skeleton. All
but the last 12 lines were devoted to an application that the Court of
Appeal should review its order that the respondents should bear 50% of the
appellants' costs of the appeal and cross-appeal. The last 12 lines
referred to the order that CBSL's application be placed before Cabinet for
consideration within 28 days, they pointed out that the Wireless
Telegraphy Ordinance (Ch 36, No 2) of 1936 had been replaced by the
Telecommunications Act 2001 (which, as the Board has mentioned, came into
force on 30th June 2004) and they concluded baldly that "In the
circumstances it appears that the regime for the grant of licences under
the Wireless Telegraphy Ordinance no longer obtains". The implicit effect
of this submission was, as Mr Knox acknowledged before the Board, that
CBSL should, despite four and half years of relatively successful
litigation against the State, now start all over again with a new
application to the new Telecommunications Authority.

23. The issue whether this was so, or whether the transitional provisions
of the Telecommunications Act 2001 preserved the existing machinery for
dealing with applications outstanding at the date when it came into force,
was litigated before the Court of Appeal at a further hearing. The Court
of Appeal on 21st April 2005 delivered a second judgment, dealing with the
point. Mendonca JA giving the judgment of the Court recorded in paragraph
7:

"We have been told by Counsel for the Respondent that in compliance with
the order of the Court that Cabinet has considered the application, but it
is in a quandary as to what to do next and now seeks clarification in view
of the order made."

24. The Court of Appeal held that the transitional provisions of the 2001
Act preserved the power of the President acting on the advice of the
Cabinet to grant licences in respect of pending applications, so that the
Cabinet might continue to deal with CBSL's application. In order to avoid
doubt, it added (at paragraph 15) that, since it understood from counsel
that the Cabinet had already considered the application ("in compliance
with the order of the court" as Mendonca JA said in paragraph 7), it would
direct that, if the application had been approved, the Cabinet should so
advise the President within the next 28 days, and, if it had been refused,
the Cabinet should so advise CBSL giving written reasons for the refusal,
again within the next 28 days.

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

"Re: Application dated December 1, 1999 [sic] of Central Broadcasting
Services Limited

We refer to the above captioned matter.

Please be advised that Cabinet has considered your application of December
1, 1999 for a broadcasting licence. Your application was made pursuant to
section 3(2) of the Wireless and Telegraph Ordinance. Your application was
required to be made in accordance with the conditions stated in the
Instructions for filing the Application Form for Broadcast Licences.

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

On March 1, 2004 the Finance and General Purposes Committee considered
your application and the application was sent back to the Cabinet on March
4 2004. Cabinet again referred your application to the Finance and General
Purposes Committee on March 11, 2004 for further consideration and
recommendation.

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

Correspondence was issued to all parties with incomplete applications
during the period October 6 to October 8, 2003 with a deadline for all
outstanding information by October 17, 2003. Letters were again dispatched
to those applicants whose applications were incomplete in the week of
November 10, 2003 with November 19, 2003 as the deadline for submission. A
final request for information was sent to all applicants with outstanding
information with a deadline of December 17, 2003. At that stage, a review
of all applicants with complete applications was undertaken. Your
application was incomplete as at the date of the preparation of the Report
that is dated December 19, 2003.  Based on the contents of the Report, the
Finance and General Purposes Committee recommended on June 21, 2004 to
Cabinet that your application should be refused.

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

Cabinet therefore decided not to grant your application because, despite
separate requests for additional information from you, you failed to
submit detailed financial information in support of your application. The
said information was required to be stated in the Application Form on
which all applications were evaluated. The failure to submit this
information rendered the application ineligible for approval.

Please be guided accordingly."

26. A number of points follow:
(1) Firstly, a Report on the Review of Applications for FM Radio
Broadcasting Licences was prepared on 19th December 2003. It seems quite
likely that this was prepared within the Telecommunications Division but
no such Report has been disclosed, even to the Board. Evidently however it
stated that CBSL "did not submit detailed financial information as
required by law and the Application Form despite separate requests for
additional information". In this respect, the Board notes that (a) the
letter dated 17th May 2005 refers to a letter as having been sent in the
week of 10th November 2003 to any applicant whose application was
incomplete - a reference which corresponds with the sending of the
Minister's letter dated 11th November 2003 to CBSL; but (b) it goes on to
suggest that a final request had been sent to all applicants with
outstanding information with a deadline of 17th December 2003 - that is
not consistent with Miss MacIntyre's affidavit sworn 16th January 2004, in
which no such request is mentioned or exhibited and no such deadline is
suggested, and (c) it makes no mention of the appellants' letters dated
17th November and 18th December 2003, or of the telephone conversation
referred to in the latter letter, all attested to by Miss MacIntyre in her
affidavit sworn 16th January 2004. On the contrary it plainly implies
that, when Cabinet considered the matter in the first half of 2004, no
regard was paid to the latter letter, despite its production by Miss
MacIntyre (and although she makes no suggestion that a deadline of 17th
December 2003 was given to CBSL).

(2) The letter dated 17th May 2005 discloses that Cabinet considered
CBSL's application in the light of recommendations of its Finance and
General Purposes Committee on three occasions shortly after judgment was
given by Best J. These were on 19th February 2004, on 11th March 2004 and
finally on 24th June 2004 when the Cabinet is said to have refused to
grant a licence because of CBSL's failure to submit detailed financial
information. Thus the very allegation which the respondent was refused
leave to advance by Best J (a refusal later upheld in the Court of Appeal)
became and remains the only basis ever suggested for refusing CBSL a
licence.

(3) Until the letter dated 17th May 2005 no step was taken to notify the
Cabinet's refusal of 24th June 2004 to CBSL, to SDMS or to anyone else who
might be concerned or interested. The letter tenders no explanation why or
how it came about that none was. Mr Knox representing the Attorney
General, a member of the Cabinet, was equally in no position before the
Board to tender any explanation. The letter was in the bundle put before
the Board. It is self-evident that any court dealing with the appeal would
expect an explanation on this, and other points, arising upon the letter.
The Cabinet's consideration of CBSL's application is presented in the
letter as the ordinary, objective consideration that any application
should receive, quite independently of any legal proceedings. If that were
so, there could be no basis for not communicating it accordingly. The
cross-appeal to the Court of Appeal could not justify failure to notify
CBSL of the failure of its application. One can only speculate whether any
notification would have taken place had the cross-appeal succeeded.

(4) The letter discloses a situation in which the Court of Appeal was
allowed to proceed under a serious misapprehension in and throughout the
course of two substantial hearings. The Court of Appeal was twice allowed
to give judgment on false premises, viz that the Cabinet had never
considered the licence application, still less reached any decision on it
prior to the Court of Appeal's first judgment. Again no explanation had
been tendered as to why or how this could have come about, although it is
obvious that one would be expected.

(5) Contrary to the impression that the respondent through his counsel
gave or allowed the Court of Appeal to have during the second hearing, the
letter dated 17th May 2005 does not disclose any substantive
re-consideration of the matter by the Cabinet after and "in compliance
with" the Court of Appeal's first judgment. On the contrary, it is
inconsistent with there having been any such re-consideration or
compliance.

27. Mr Knox conceded that the position was "unusual and unsatisfactory".
That is an understatement. Mr Knox went on to argue valiantly that, in the
light of the facts disclosed in the letter dated 17th May 2005, the
appropriate course would now be for CBSL to take fresh proceedings for
judicial review of the Cabinet's refusal, or (secondly) for the Board
simply to make yet a further order for the Cabinet to re-consider the
application, or (as a third possibility) for CSBL to avoid any Cabinet
involvement by making a new application to the Telecommunications
Authority. In the Board's view, neither the first nor the third of those
possible courses could be an appropriate response to the course of events
which has become apparent since the Court of Appeal was allowed to deal
with the matter under a misapprehension as it did. They do not take
appropriate account of the long history of this matter, the inequality of
treatment established independently of the new matters now known, or the
Cabinet's uncommunicated consideration and decision to refuse a licence in
June 2004 on a ground that the Attorney General had been refused
permission to raise by the Judge. All these matters relate closely to the
course of and issues in the present proceedings. Any suggestion that CBSL
should have to commence yet further proceedings or begin with a fresh
application to the Telecommunications Authority is in the Board's view
unrealistic. The same matters also bear strongly, in the Board's view, on
the question whether the second course would, as matters now appear,
afford appropriate relief in these proceedings.

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

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

29. A law may clearly "abridge" or "infringe" the right to freedom of
expression without entirely "abrogating" it. Likewise, the right which
section 4(i) guarantees will exist without discrimination in respect of
freedom of expression can be infringed even though (i) no absolute right
exists to a licence and (ii) the conduct impugned does not abrogate all
freedom of expression, but leaves it in many respects unaffected. In
Benjamin v. Minister of Information and Broadcasting [2001] UKPC 8; [2001]
1 WLR 1040, the Board was concerned with the Constitution of Anguilla,
section 11 of which provided that "Except with his own consent, no person
shall be hindered in the enjoyment of his freedom of expression..". The
government had decided to suspend a radio programme, without notice to the
producer, because of criticisms and statements of intention to sue made by
the vice president of the local lottery company after the producer said
that a lottery was inappropriate and in his view illegal. The Board in its
opinion considered that "freedom of speech ... may be hindered where there
is no contractual and no absolute generalised right to speak in the way in
which the individual wishes to express his views" (paragraph 31). It
regarded "the motive of the government in closing the programme ... [as] a
relevant factor in deciding whether there was a contravention of section
11" (paragraph 49). It observed that Benjamin was "not a case where the
government, as owners of the radio station, felt that the programme had
ceased to have sufficient audience participation or appeal", nor a case
where there had been intended from the beginning a limited series or
period (paragraph 49). Rather, it appeared that "As long as people were
not criticising the government on sensitive issues, .. the government was
content for the programme to continue" (paragraph 49) and so there was, as
the judge had there held, "an arbitrary or capricious withdrawal of a
platform which had been made available by the government" (paragraph 51).

30. In relation to a government controlled radio station, the government
as owners with direct responsibility for policy and finance would
normally, and rightly, be recognised as having wide control over
operations and programming. The present case is in contrast concerned with
a government controlled licensing process, in relation to which the
government's legislative and constitutional role is to ensure the
efficient, objective and non-discriminatory handling of licence
applications, securing the speedy granting of licences where appropriate
and thereby also securing the constitutional right of freedom of
expression. Where there has been a failure in this respect, an applicant's
freedom of expression can in the Board's opinion be said to have been
infringed.

31. This is confirmed by the Board's decision in Observer Publications
Ltd. v. Matthew 58 WIR 188, where a constitutional challenge based on that
ground was mounted after more than five years of prevarication in dealing
with an application for a licence to operate a commercial FM radio
station. The relevant constitutional provision (section 12 of the
Constitution of Antigua and Barbuda) was in effectively identical terms to
that in issue in Benjamin v Minister of Information and Broadcasting
[2001] 1 WLR 1040. The relevant application fell under the local
telecommunications legislation to be made to and considered by a
Telecommunications Officer, Mr Matthew, who had been duly appointed by the
Public Service Commission, but due to a misapprehension believed that it
was his role to forward applications for consideration by the Minister of
Public Works, who in turn secured the decision of the Cabinet.

32. The Board emphasised that, although no-one has an absolute right to
establish a broadcasting station, the effect of the constitutional
provisions before it was that a licence could be refused only on
constitutionally justifiable grounds (paragraph 4). The case was not
argued on the basis of discrimination (although the homogeneous nature of
existing long-term licences, almost exclusively granted to the government
or members or relatives of its ministers, might in the Board's view have
been given rise to "a serious issue of discrimination", had it been
discovered earlier: paragraph 11). The Board was also unable to conclude
on the evidence that there had been "a policy motivated by a desire to
suppress or limit criticism of the Government of the day", although it saw
some cause for concern on this score: paragraph 47. But the Board
unhesitatingly concluded that the right of freedom of communication had
been denied without justification: paragraph 53. It made a corresponding
declaration and went on to make "an order that forthwith a radio
broadcasting licence will be issued to [the appellant] as applied for or
on such other frequency as the High Court, on prompt application by the
Attorney-General, may approve" (paragraph 54).

33. Returning to the present case, there was here in the Board's opinion a
similar infringement of CBSL's right to freedom of expression under
section 4(i) of the Constitution of Trinidad and Tobago. CBSL's
application for a licence was recommended to the Minister by the Director
of the Telecommunications Division as long ago as October 2000. There was
conspicuous failure to deal with the application for over three years.
There was unexplained and unjustified discrimination in favour of another
applicant, Citadel. No questions were raised about CBSL's application or
financial position during those three years, until after the time for
filing evidence in, and shortly before the hearing of, proceedings brought
to challenge the government's inaction. Even then, the Board notes, it was
not explained why the Director's previous recommendation was now regarded
as inappropriate; or why financial information should have assumed so
significant a role in the context of the operation of a radio station, let
alone its operation by a company incorporated by a substantial
organisation able, as the papers indicate and as the Board was also told
without contradiction, to draw on significant voluntary as well as
financial resources. In any event, the trial judge refused the Attorney
General permission to rely on any objection based on CBSL's suggested
failure to provide adequate financial information. The matter fell to be
considered thereafter on the basis that the application was in that
respect in order. Yet the information now available shows that the only
ground put forward for refusal of the application is the ground which the
Attorney General representing the State was refused permission to raise.
In addition, as the Board has already noted, there was a complete failure
to communicate that refusal, or the fact that Cabinet had even considered
the matter, to the applicant, and the Court of Appeal was allowed to hear
and determine the matter under a serious misapprehension on two occasions.

34. These factors in the Board's opinion justify the application to the
State's handling of CBSL's licence application since the end of 2000 of
the same description "arbitrary or capricious" as was applicable to the
conduct in issue in Benjamin v Minister of Information and Broadcasting
[2001] 1 WLR 1040, at paragraph 51. Further, assuming (which the Board
should not be taken to accept, though it expresses no concluded view) that
it is necessary, in order for there to have been an infringement of the
right to freedom of expression, to show that, given proper handling, a
licence would by now have been granted, the Board considers such a
conclusion to be amply justified on the present facts. The Director in
October 2000 had actually specified a frequency of 107.1 MhZ (a frequency
in the event allocated on 24th June 2004 to Inner City Broadcasting whose
application only dated from 22nd July 2002). There is no doubt some limit
to available frequencies, as Miss Mala Guinness says, but there has never
been any suggestion, past or present, of scarcity of channels as a reason
for resisting CBSL's application (which should, if fairly treated, also
have had prior consideration to that of Inner City Broadcasting). As to
the suggestion that there might be other applications, especially
applications even older than CBSL's, which might justify prior treatment
or might be prejudiced by the grant of a licence to CBSL, that is neither
established nor on its face at all likely, bearing in mind that all but
two of the applications recommended on 19th December 2003 and granted by
Cabinet on 24th June 2004 dated from the years 2001 to 2003. It is true
that a further 19 applications are said to have been reviewed on 19th
December 2003 (including, as is now known, CBSL's). The likelihood is that
all or most of them were refused and there is no indication that any of
them is complaining or could complain if the Director's recommendation of
CBSL's application, given as long ago as October 2000, were now
implemented.

35. The Constitution of Trinidad and Tobago provides in section 14 that:

"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 motion.
(2) The High Court shall have original jurisdiction
(a) to hear and determine any application made by any person in pursuance
of subsection (i); 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."

Section 14 is for present purposes in identical form to section 18 of the
Constitution of Antigua and Barbuda under which relief was afforded in
Observer Publications Ltd. v. Matthew 58 WIR 188.

36. The Board would pay tribute to the care and skill with which this case
has been handled in the courts below. It is through no fault of the Court
of Appeal and highly regrettable that the Court of Appeal was allowed to
proceed on false premises. It is in the light of exceptional circumstances
not revealed to the Court of Appeal that the Board concludes that the
appeal should be allowed. As in Observer Publications Ltd. v. Matthew, so
here the Board considers that the only appropriate order is a mandatory
order, in this case ordering the Attorney General to do all that is
necessary to procure and ensure the issue forthwith to the appellant,
Central Broadcasting Systems Limited (CBSL), of a FM radio broadcasting
licence, as applied for on 1st September 2000, on an appropriate frequency
to be agreed with CBSL or, in default of agreement, to be determined by
the High Court on application by either party. The Attorney General must
pay the appellants' costs in the courts below and before the Board.