Geo moves Pemra to hear its case on merit
ISLAMABAD: Geo television has moved Pemra, holding that before proceeding on the complaint of the Ministry of Defence the authority should take the opinion of the Council of Complaints (CoC) under the Pemra law and that Geo should be heard on the merits of the points raised in the complaint under Section 30(3) of the Pemra Ordinance.
The application filed by the Independent Media Corporation (IMC) also made a reference to the Supreme Court’s January 15, 2013 judgment passed by the apex court in the Hamid Mir vs Federation case mentioning that the authority becomes incompetent to pass content regulations in the absence of a chairman and as presently there is no chairman, the authority is not complete and thus cannot proceed in this matter.
The Geo application also pleaded that three members of the authority, namely Israr Abbasi, Mian Shams and Fareeha Iftikhar, have shown their mind and have repeatedly announced to revoke the Geo channel’s licences so they could not sit in the authority as judges on a complaint against Geo. The Geo application also pleads that on May 6, 2014, the lawyer of Geo, Muhammad Akram Sheikh, only submitted some legal objections and is yet to present his submissions on the merits of the complaint filed by the Ministry of Defence, and Geo should be given this right under Section 30(3) of the Pemra law.
The relevant parts of the application moved by Geo on April 27, 2014 read: “1. Your kind attention is drawn to the order of the Hon’ble Supreme Court of Pakistan dated 15th January 2013 passed by Mr. Justice(reported at PLD 2013 SC 244), wherein the Pakistan Electronic Media Regulatory Authority (“Pemra” hereafter) was held to be incompetent to pass content regulations in the absence of its Chairman. Relevant portions of the judgement are reproduced below: “5. We have earlier recorded that at least since 13-5-2011, Pemra has no Chairman. In our order dated 20-12-2012, we have also noted the serious procedural challenge raised by the petitioners, who contend that when the Content Regulations were in the process of being made or when the same were adopted and notified, Pemra did not have a Chairman and was thus not lawfully in existence. Mr. Kazmi [counsel for Respondent No. 2] contended that Dr. Abdul Jabbar was notified and was acting as Chairman of Pemra. This contention is not correct …”
“6. Based on the above, we are quite clear that the Content Regulations which were notified on 25-9-2012 cannot be construed as regulations issued by Pemra …”
“7. Mr. Kazmi then contended that even if Dr. Abdul Jabbar was not a validly appointed Chairman, the de facto doctrine, incorporated in section 3(4) of Pemra Ordinance, would save all his acts; and the Content Regulations too should therefore be deemed to have been saved. This contention is without merit. The statute cannot be read in a way which makes its most important and potent parts such as the provisions about the very composition of Pemra redundant. Such an interpretation of the de facto doctrine verges on utter disregard for the rule of law which is the foundation of our constitutional order. …”
2. Therefore Pemra, as per the above clear ruling of Honourable Supreme Court of Pakistan, in the absence of a Chairman, is not validly constituted to execute and perform functions of the Authority as contemplated by Sections 4 and 6 of the Pemra Ordinance 2002.
3. That notwithstanding the above cited view of the Hon’ble Supreme Court and without prejudice to the legal objections taken by Independent Media Corporation (Pvt.) Ltd. (the answering respondent) in reply to the Show Cause Notice dated 23.04.2014, it is further submitted as under: A. Proviso to Section 30(1)(b) of Pemra Ordinance requires that: ‘Provided that in case of revocation of a licence of a broadcast media, an opinion to this effect shall also be obtained from the Council of Complaints.’
As Authority has not yet obtained an opinion from the Council of Complaints, it is not allowed by the statute to proceed to revoke the respondent’s licence.
B. In addition to above, Section 30(3) of Pemra Ordinance provides: ’Except for reason of necessity in public interest, a licence shall not be … revoked unless the licencee has been given reasonable notice to show cause and a personal hearing.”
It may be noted that Pemra has not yet heard the answering respondent on merits of the complaint. During the hearing dated 06.05.2014, Muhammad Akram Sheikh, senior advocate Supreme Court, raised several preliminary legal objections, including the contention that in the absence of the chairman, Pemra was not lawfully authorised or empowered to hear the instant complaint. Having considered those preliminary objections, Pemra sought the opinion of the Ministry of Law on the legal objections raised. Akram Sheikh did not submit response on merit of the complaint.
C. Now that the authority has received the legal opinion from the Ministry of Law, it must comply with Section 30(3) to afford the answering respondent the opportunity to submit its reply to the complaint on merit. It is thus that the Authority is requested to give the answering respondent reasonable time for right of hearing, without which any decision taken by the Authority will be legally flawed and an abuse of power.
D. Lastly, in the interest of justice and fair play, we wish to place on record the undisputed fact that the following three members of the Authority, namely Israr Abbasi, Mian Shams and Fariha Iftikhar, have disqualified themselves from sitting as a judge and to adjudicate on the issue in question because they have repeatedly, through press conferences and also through various live interviews on different rival TV channels, vowed that they would revoke Geo News licence. All these three members are not only biased but hostile, they have each prejudged the matter even before the meeting of the Authority and hence they are not entitled to participate in the discussion, cast their votes and thus decide this matter.
Any decision taken against the answering respondents that is based on the votes casted by these three biased and hostile members shall not be sustainable under law. As a result of their hostile interviews and expression of their hatred and anger against answering respondent, the said members have rendered themselves incapacitated from taking any part in relation to the complaint as they have prejudged the fate of the complaint.
It is the duty of the Authority to exclude these members from the proceedings to ensure that the right of the answering respondents to a fair trial as guaranteed under Article 10A of the Constitution.
E. Therefore, the ex-officio and other members of Pemra are kindly requested to restrain Pemra from initiating any actions without referring the complaint to the Council of Complaints where the answering respondent is yet to make submissions on merits.