The new regulations by the Independent Broadcasting Authority have been decried as unconstitutional by the opposition as well as attracted the ire of private radios in the country as another step in stifling broadcasters. But how unconstitutional are these regulations really and how can they be legally challenged?
The problem with the guidelines
The Independent Broadcasting Authority (IBA) came out with new regulations in November this year and has since attracted the ire of opposition parties as well as private radios. Under the guise of promoting impartiality the regulations are a new front in the government's attempt to control the content of private radio broadcasts, including making it incumbent on radio hosts to present the government's version on debates where the government chooses not to take part. What is worrying private radios is that the new regulations attempting to control their content is coming hot on the heels of laws enacted to tighten the stranglehold of the government over private broadcasters as well as the government, through the IBA, engaging in a protracted struggle against radio stations it deems too favourable to the opposition. One such episode was the temporary suspension of broadcasts of TopFm by the IBA over a broadcast where unionist Jack Bizlall criticised the Indian Prime Minister. That case is still at the Supreme Court and will be heard in June 2023. "These regulations are becoming more and more repressive and want to put private radios into a straitjacket," says lawyer Sanjay Bhuckory, "whether it is picking on a certain radio station. We are reaching an unprecedented level of censorship when it comes to private radios." With such a history, it is a problem that it is the government-appointed IBA that will decide what is impartial or not.
For the radios, giving the IBA such powers is a problem given that in November 2021 the government passed the Independent Broadcasting Authority (amendment) Act which potentially hits the financial viability of radio stations by reducing the duration of a licence from three to one year, with the IBA choosing whether or not to renew a radio licence each year, including by taking past conduct into account - these new guidelines allow the IBA to collect 'breaches' against a radio station deemed too sympathetic to the opposition - as well as giving the IBA the power to levy fines of Rs500,000 for breaches to the IBA's regulations, and allowing the IBA to demand journalists divulge their sources and documents in their possession.
Back then, Arnaud Froger, head of the Africa desk of Reporters without Borders stated: "What with increasing the threat to the confidentiality of sources, reinforcing penalties, making it harder to renew a licence and undermining the regulator's independence, this bill has provisions that are very dangerous for journalistic freedom, pluralism and independence in Mauritius." Interestingly, the law to give the IBA such dramatically enhanced powers was actually a perversion of what Geoffrey Robertson in his 2013 preliminary report on the media called for; liberalising of the radio station licencing regime as well as setting up an independent body - free from the government as well as the IBA - to investigate and recommend sanctions against radio stations that broke the rules. Instead, what the 2021 law did was give those powers to the IBA itself, and now with these new regulations, the power to punish radio stations deemed insufficiently pro-government.
The history
The latest step of the MSM-led government to muzzle the radios is just the latest in the problematic relations between the media and governments in Mauritius. In 1971, for instance, a state of emergency was declared by the Labour Party-led government headed by Sir Seewoosagur Ramgoolam that required newspapers to get their stories pre-approved by the police before publication. That did not last long. In 1984, an MSMled government came up with changes to the Newspaper and Periodicals Act requiring the printed media to cough up Rs500,000 as a deposit to operate. The then-government ignored warnings from the Mauritius Union of Journalists that the move would lead to the closure of 20 publications and the loss of 500 jobs. 44 journalists were arrested in a protest against the law. That was repealed the following year in 1985.
That same year, the MSM-led government then came up with an amendment to the Criminal Code by inventing a new crime; "Any person who published or in public utters an expression which imputes or can be understood to impute a fact which is injurious or contemptuous of or abusive of the government, a minister or his ministerial function shall, unless he can substantiate the fact, commit an offense... ". Effectively elevating the government and its ministers above criticism from the media, opposition and the public. That amendment was repealed in 1990. After 2006, the Labour Party-led government then put in place an advertising boycott of press titles deemed hostile to the government and withdrew subscriptions by government departments and public companies.
All this is to say that attempts to now control the private radios is nothing more than a repetition of previous attempts - whether through applying financial pressure or through legally attempting to dictate content - to control the print media.
What can a legal challenge look like?
This, however, is where the resemblance between the print media and private radios ends. And the difference between the two largely determines what kind of legal challenge can be mounted against the new IBA regulation. "It is possible to come up with a case that these new regulations are indirectly blocking the freedom of expression guaranteed by section 12 of the constitution," says Rajen Narsinghen, senior lecturer in law at the University of Mauritius, "the problem is that most of the time, when it comes to issuing injunctions to block state actions, the courts tend to side with the state."
So how are the print media and the private radios different under the law? "The print media, such as newspapers and magazines, are governed under general law and offenses like contempt, defamation etc.," explains constitutional lawyer Milan Meetarbhan, "whereas private radios are specifically governed by the IBA Act (passed in 2000 with the first private radios emerging in 2002 -ed.) and a licensing regime it has in place and which places certain conditions and obligations on private radios for them to operate." Secondly, whereas there is a rich history of cases in Mauritian courts determining what newspapers can and cannot print - and setting the limits of governmental interference in the print media - "there is very little case law when it comes to broadcasting," says Meetarbhan. In other words, the courts are far more clear about how newspapers and magazines should be protected from the government, but much less so when it comes to private radios which not only have emerged much more recently but also about just - and what kind of control - can be exercised by the IBA under which they operate.
What this means is that the legal options in front of private radios to contest the new regulations passed by the IBA are essentially limited to two arguments; the first is the way that the IBA discriminates between its licensees. "People tend to forget that the IBA is not just the regulator of private radios, but also of the Mauritius Broadcasting Corporation (MBC) and that its regulations apply to the MBC too," argues Meetarbhan, "can we seriously say that the IBA is uniformly applying its rules and regulations?" He points to the example in 2019 of the Electoral Supervisory Commission criticising the MBC's coverage in the run-up to the general election of that year. The IBA has yet to act on that.
Nor has there been any proper legal challenge to the MBC's perennial pro-government bias, breaking a legal obligation under the MBC Act to towards impartiality. "This is a crucial point because even if the substance of the regulations cannot be legally challenged in courts, as a public body the IBA is required to be non-discriminatory in its application of regulations. Any discrimination when it comes to applying its regulations would be open to a legal challenge," he adds. In other words, should the IBA punish the private radios for their purported proopposition bias, but not act against the MBC for its pro-government bias, that would be a regulator discriminating between its licensees, and thus grounds for legally challenging the IBA.
A second plank for such a legal challenge is by arguing that the regulations recently passed by the IBA go much further than the law intends. "Asking for all sides to be presented in a debate is one thing, but demanding that a radio host become a spokesman for the government even if it chooses not to participate in a debate is something else," cautions Narsinghen, "you are indirectly imposing an obligation on the radios to present the government's version of events. And even then, there are multiple parties in government, should each of them be represented? This is too much." The argument in this case, Meetarbhan says, "would be that the regulator is exceeding its powers by making such absurd and unreasonable - unreasonableness is one of the grounds for the courts to conduct a judicial review - regulations".
