What remains of Pemra law?
THE decision to withdraw the Pemra (Amendment) Ordinance of June 4 last can only be welcomed. The satisfactory turn of events is surely the result of the media community’s unity and steadfastness and the support it received from civil society at home and abroad.
It should now be possible to take a critical look at the law as it stood before the ill-timed and ill-fated amendment because its scrutiny during the recent agitation brought to light quite a few of its aspects that are violative of the right to freedom of expression.
The Pemra Ordinance in its original form was a bad law to start with, because it created a mechanism to control the electronic media in contravention of the objectives given in the Ordinance itself. These objectives were: to “improve the standards of information, education and entertainment”, to “enlarge the choice available to the people in the media for news, current affairs….music, sports, drama and other subjects of public and national interest”; to “facilitate the devolution of responsibility and power to the grass-roots by improving the access of the people to mass media at the local and community level”, and to “ensure accountability, transparency and good governance by optimising the free flow of information.”
The people have a right to ask the Pemra as to what it has done to realise its mission and whether, instead of optimising the free flow of information, it has been trying to restrict the flow of information.
That the Electronic Media Regulatory Authority created under the ordinance was wholly under the federal government’s control is borne out by the following:
The federal government’s directives on a matter of policy were binding on the Authority. What constituted a matter of policy was to be decided by the federal government (Sec 5). The Authority comprised a chairman and nine members, all appointed by the president. Out of the nine members, five had to be “eminent” citizens (Sec 6). The licensee was bound to broadcast programmes (in public interest) specified by the government or the Authority and comply with the rules and codes made by the Authority with the government approval (Sec 20).
The Authority was given the power to prohibit a broadcast/ distribution of programmes and the premises of a broadcaster/operator could be inspected “after giving reasonable notice.” The Authority could revoke or suspend a licence if (a) the licensee had not paid fee and charges; (b) a committee appointed by the government, headed by a retired HC or SC judge (and a nominee each of the Authority and licensee) expressed opinion that the licensee had violated the Ordinance/rules; (c) licensee had failed to comply with licence conditions; (d) If the broadcast company’s ownership changed. However, a show cause notice (reasonable) was necessary except for reason of necessity in public interest. (Sec 30).
The penalties were: (1) For any violation of the ordinance, fine up to Rs. one million; (2) second violation, a three-year imprisonment or fine or both; (3) violation by a person who is not a licensee, a four-year imprisonment or fine or both.
The ordinance overrode other laws. (Sec 37), a feature not allowed in case of the Freedom of Information Ordinance, despite media community’s clamour.
Changes made by Act II of 2007: In 2004 the government decided to put more teeth in the ordinance. The relevant bill got stuck in Parliament but eventually it became the Pemra Act of 2007 (II of 2007) and was gazetted on April 14, 2007. A simple reading of this Act leads one to the conclusion that Parliament failed to show due respect for the right to freedom of expression and gave Pemra sweeping powers that could easily be abused.
Several amendments brought substantial changes in the law, and quite a few of them of a sinister nature. The number of members of the Authority (besides the chairman) was raised from nine to 12. As earlier, the number of ‘eminent citizens’ remained five and two members were to be appointed by the federal government on need basis on the recommendation of the chairman. The remaining five members were to be government officials/nominees. The composition of the Authority was thus radically changed. The five non-officials, who earlier on faced an equal number of officials, now faced seven officials. The pretence that the Authority could be an autonomous body was given up.
The section on delegation of power by the Authority (Sec 13) had a proviso in 2002 text: “Provided further that the rules made under this ordinance shall specify use of delegated powers and shall be framed and enforced after promulgation of this Ordinance and before the notification of the establishment of the Authority.” Under the Act of 2007 this proviso was dropped. This meant rules regarding delegation could be made at any time, even after the Authority had been established.
The gates of arbitrariness were thrown wide open. Further, previously the delegation of power did not include “the power to grant, suspend, reverse or cancel a broadcast licence.” Now the word ‘suspend’ was deleted and cable TV was excluded from protection. Obviously, it was made possible for a delegatee of power to suspend a TV channel licence and cancel a cable operator’s licence.
Amendments to Section 19 gave the Authority unfettered power to fix the number of licences to be issued in each category. This means that parties seeking licence after the limit for licences in a category has been reached cannot be entertained. This is not only contrary to the holy principle of market competition but also appears to be violative of fundamental rights.
The conditions of licence were expanded (Sec 20). Earlier, a broadcaster was required to ‘respect’ national, cultural and religious values and the principles of public policy, now the order was to ‘ensure preservation of’ the values already mentioned. The condition is quite ridiculous and it is impossible to comply with it.
Earlier, the federal government could establish only one Council of Complaints, now it was bound to establish councils of complaints at Islamabad, at provincial capitals and at any other place. All councils were given power to summon a licensee in the course of hearing a complaint against him. This could mean relief to broadcasters from travelling to Islamabad in each case, and it could also imply a Karachi-based broadcaster’s obligation to travel to FATA or Gilgit if a council were set up there.
The replacement of Sec 27 increased the grounds on which a broadcast could be prohibited. In addition to the standard jargon on integrity, security and decency, a programme could also be prohibited for “engaging in any practice or act which amounts to abuse of media power by way of harming the legitimate interests of another licencee or wilfully causing damage to any other person.” This was much too broad a power.
A new provision (Sec 29) empowered the Authority as well as its chairman to seize a broadcaster’s equipment and seal the premises for contravening “this Ordinance or the rules made thereunder or any other law.” Equipment could be returned to the holder of a valid licence after payment of penalty determined by the Authority. A licensee could be fined up to Rs one million. The new provisions encouraged abuse of power. Suppose a broadcaster attracted the defamation law, the Authority could supplant the courts of law and punish the accused.
Substantial changes were also made in Sec 30 (Power to suspend/revoke a licence). Earlier, a licence could be suspended/revoked for failure to pay fee/charges for failing to comply with conditions of licence, if a broadcast company’s ownership changed, or if a committee headed by a retired judge gave an opinion against a licensee.
The Act of 2007 replaced reference to the committee of inquiry with the Council of complaints and gave the Authority blanket power to vary the terms of a licence “where such variation is in public interest.” Although a new Section (30 A) gave the right to appeal to the High Court, the granting of sweeping power and possibility of their abuse cannot be denied.
The fine for the first offence was raised from one to ten million rupees. Violation by a non-licensee could be punished with confiscation of equipment in addition to imprisonment or/and fine. A new sub-section was added to provide for punishment of anyone who damaged or stole a licensee’s equipment.
The Act of 2007 had made the Pemra ordinance as draconian as can be but obviously the establishment’s lust for arbitrary and absolute power was not satiated. Only 50 days after the Act II of 2007 was gazetted, it promulgated an ordinance to further amend the 2002 ordinance.
What the new ordinance did was:
Sec 29 was amended to give power to the Authority as well as its chairman to seize a broadcaster’s equipment and seal his premises without a show cause notice for illegal operation or violating orders passed under Sec 30. The amount of fine under this section was raised from one to ten million rupees.
Vide a new sub-section added to Sec 30 a licence could be suspended by “a duly constituted committee comprising members of the Authority.” What this meant was that a committee of any two official members or any two officials and one ‘eminent’ citizen could suspend a licence. Further, the proviso to Sec 30 was amended to drop the provision for revoking a licence on the opinion of the Council of Complaints, and the condition of a show cause notice before suspension of a licence was dropped.
Perhaps one of the most pernicious changes in the Pemra law made by the latest ordinance was the insertion of a Sec 39-A which gave the Authority powers to make regulations in addition to rules. While the rules had to be made by the Authority subject to government approval, no such approval was needed for regulations that might be made at any time. Any violation of regulations was as serious an offence as a violation of the ordinance and the rules.
Even after the ordinance of June 4 has been withdrawn, it will be necessary to review the Pemra law, to purge it of provisions that are likely to be abused.
It may be noted that in most of the recent cases when broadcasts by some of the TV channels were blocked/suspended for hours and days, it was not considered necessary to invoke the Pemra law. The reason is, first, that formal orders of Pemra can be challenged and, secondly, the powers available to the regulating authority are so awesome that a mere threat of their use can be sufficient to achieve the desired result.
Source: Dawn
Date:6/14/2007
” 
” 
” 
” 
