P L D 2013 Supreme Court 244

Present: Jawwad S. Khawaja and Khilji Arif Hussain, JJ

HAMID MIR and another—Petitioners

Versus

FEDERATION OF PAKISTAN and others—Respondents

Constitution Petition No.105 of 2012 along with C.M.As. Nos.3795 and 3798 of 2012, HRC No.23957-S of 2012 and Const.P.53 of 2012; Constitution Petition No.104 of 2012 and C.M.A. No.3464 of 2012 and Constitution Petition No.117 of 2012, decided on 15th January, 2012.

(a) Constitution of Pakistan—

(b) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)—

—-Ss. 6(1) & 3(4)—Pakistan Electronic Media Regulatory Authority (Content) Regulations, 2012—Constitution of Pakistan, Arts. 19, 19A & 184(3)—Supreme Court Rules, 1980, O. XXXII—Civil Procedure Code (V of 1908), O. XXVI—Constitutional petitions under Art.184(3) of the Constitution concerning accountability of the media and determination of its code of conduct—(Acting) Chairman of Pakistan Electronic Media Regulatory Authority (PEMRA), acts of—Legality—Respondents contended that appointment of such a Commission was not necessary as PEMRA had already issued the Pakistan Electronic Media Regulatory Authority (Content) Regulations, 2012, and that PEMRA being the competent authority enjoyed a statutory mandate for framing content regulations and code of conduct for the media and effective enforcement thereof, thus only PEMRA should determine such matters—Petitioners contended that when Pakistan Electronic Media Regulatory Authority (Content) Regulations, 2012 were in the process of being made or when the same were adopted and notified, PEMRA did not have a Chairman but only an acting Chairman—Effect—Person who was purportedly working as the acting Chairman of PEMRA was never appointed to such post—Even otherwise Pakistan Electronic Media Regulatory Authority Ordinance, 2002 did not provide for the position of an Acting Chairman—De facto doctrine incorporated in S.3(4) of the Ordinance would not save the acts of the purported Acting Chairman as said doctrine was limited to those public functionaries who acted bona fide and whose legal status had not been objected to—No permanent Chairman of PEMRA having been appointed, and such a defect had already been highlighted by the Supreme Court, it was hard to see as to how purported Acting Chairman’s subsequent acts could be considered bona fide for the purpose of giving legal recognition or protection to the same—Interpreting the de facto doctrine incorporated in S.3(4) of the Ordinance to save acts of the purported acting Chairman would be disregarding the rule of law—Resorting to such loose and offhand reasoning (interpretation) would amount to an invocation of the ‘doctrine of necessity’—Pakistan Electronic Media Regulatory Authority (Content) Regulations, 2012 purported to be prepared and issued in the name of PEMRA were, therefore, of no legal consequence.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 ref.

—-S. 6(1)—Chairman of Pakistan Electronic Media Regulatory Authority (PEMRA)—Eligibility criteria—Appointment process—Scope—Position of Chairman PEMRA had to be filled by a person who fulfilled the exceptional and stringent requirements prescribed in the Ordinance and not by a casual appointee—Appointment of Chairman had to be made through an open and transparent process to ensure that the appointee met the objective criteria specified in the Ordinance.

(d) Constitution of Pakistan—

—-Arts. 19A & 184(3)—Constitutional petitions under Art.184(3) of the Constitution concerning accountability of the media and determination of its code of conduct—Right to information—Scope—Creation and utilization of secret funds in the Ministry of Information and Broadcasting—Disclosure of the nature and use of such funds—Prima facie, in view of the provisions of Art.19A of the Constitution, Ministry of Information and Broadcasting was obliged to disclose the nature and use of all funds allocated to it including the secret funds.

(e) Constitution of Pakistan—

—-Arts. 19, 19A & 184(3)—Supreme Court Rules, 1980, O. XXXII— Civil Procedure Code (V of 1908), O. XXVI—Constitutional petitions under Art.184(3) of the Constitution concerning accountability of the media and determination of its code of conduct—Formation of a Commission by the Supreme Court to look into the matter—Supreme Court appointed a two member Commission headed by a retired Judge of the Supreme Court with another member—Terms of Reference of the said Commission were to consider the role of the Ministry of Information and Broadcasting and other Government agencies in ensuring freedom of print and electronic media and whether or not there was information and material brought before the Commission to justify the continued functioning of the said Ministry, consistent with Art.19 of the Constitution; to analyze whether and to what extent PEMRA had been able to fulfil its developmental mandate and regulatory functions independently under the Ordinance; to determine if it advanced or was consistent with the fundamental right under Art.19 of the Constitution to allow the Government or its instrumentalities to be major players in the media through State Television and Radio broadcasters; to ascertain if Pakistan Television Corporation (PTV), Pakistan Broadcasting Corporation (PBC) and Associated Press of Pakistan (APP), the recipients of public funding of billions of rupees, had independent in-house management and transparent policies in place which advanced the objectives of fairness and even-handedness expected of publicly funded entities and to determine if there were adequate checks against lop-sided or biased dissemination of information by these publicly funded entities; to consider the feasibility of letting the media adopt a self-regulatory code of conduct instead of content regulation, in the light of international standards and best practices; to enquire into allegations of media-related corruption and suggest steps to ensure impartial and independent media for the upcoming elections; to inquire whether, when giving money to different media houses directly for or on the pretext of advertisement, were the government or its functionaries pursuing a transparent, duly approved, bona fide government advertisement allocation policy or were the decisions to buy advertisement space with public money made arbitrarily or without objective criteria or to favour particular T.V. channels, journalists or media houses; to propose a single, transparent, objective, non-discriminatory policy for allocation of government advertisements among electronic and print media; to inquire whether the Federal and Provincial Governments, autonomous and semi-autonomous bodies, Government corporations or agencies adhered to Public Procurement Regulatory Authority Rules or other transparent processes while granting advertisement contracts to advertising agencies or media houses, and if not, then to suggest processes which were fair and transparent and which ensured the greatest value and fairest dissemination of information—Supreme Court directed that the Commission shall have all the powers set out in O. XXXII of the Supreme Court Rules, 1980 together with such powers as might be considered necessary or appropriate by it to make its report on the Terms of Reference; that the Commission might seek such further orders or clarifications from the court as it might consider necessary, and that report of the Commission might be submitted in court on or before 31-3-2013 or on such other date as might fixed by the court if requested by the Commission.

Hamid Mir and Absar Alam (in person) (in Const.P.105 of 2012).

Dr. Tariq Hassan, Advocate Supreme Court and Syed Safdar Hussain, Adovcate-on-Record for Petitioner (in Const.P.53 of 2012).

Tausif Asif, Advocate Supreme Court (Nemo) (regarding abscene and objectionable material in media) for Petitioners (in Cons.P.104 of 2012).

Sheikh Ahsan ud Din, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (Sh. Ahsan ud Din) (in Const.P.117 of 2012).

Zulfiqar Khalid Maluka, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record, Nasir Jamal, D.G. and Rashid Ahmed (Secy.) and Muhammad Azam (Press Information Officer) for Respondent No.1.

Hasnain Ibrahim Kazmi, Advocate Supreme Court for Respondent No.2.

Nemo for Respondent No.3.

Hasnain Ibrahim Kazmi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondent No.3 (Sh. Ahsan ud Din) (in Const.P.117 of 2012).

Dil Muhammad Khan Alizai, DAG and M.S.Khattak, Advocate-on-Record for Respondent No.4 (Sh. Ahsan ud Din) (in Const.P.117 of 2012).

Jawwad Hassan, Addl. A.G. for Respondent No.5 (Sh. Ahsan ud Din) (in Const.P.117 of 2012).

Syed Zahid Hussain Bukhari, Advocate Supreme Court (Nemo) for Respondents Nos. 4 & 5.

Nemo for Respondent No.6.

Naveed Ihsan and Asif Hussain for Respondent No.7.

Nemo for Respondent No.8.

Nemo (Sh. Ahsan ud Din) for Respondents Nos. 1, 2, 6 and 8 (in Const.P.117 of 2012).

Jawwad Hassan, Addl. A.G., Tahir Raza, Addl. Secretary Information Department and Hassan Raza Khan, Dy. Director, ACE for Respondents Nos. 9 and 10.

Syed Arshad Hussain Shah, Addl. A.G. for Province of Khyber Pakhtunkhwa (in Const.P.105 and in Const.P.117 of 2012).

Dil Muhammad Khan Alizai, D.A.G. for Federation.

Yasin Azad, Advocate Supreme Court, Raja Muqsat Nawaz, Advocate Supreme Court and Ch. Akhtar Ali Advocate-on-Record for Respondent No.11 and Value TV.

Hashmat Ali Habib, Advocate Supreme Court for Applicants (in C.M.A.4033 of 2012 in Const. P.105 of 2012).

Nemo for Applicants (in C.M.A. 3820 of 2012 in Const.P.105 of 2012).

Arshad Sharif, Bureau Chief, DUNYA TV for Applicants (in C.M.A. 3428 of 2012 in Cons.P.105 of 2012).

Ghulam Nabi, President Press Association SC for Applicants ((in CMA 4063 of 2012 in Const.P.105 of 2012).

M. Hanif Awan (in person) (in C.M.A. 3464 of 2012 in Const.P.104 of 2012).

Nemo (in C.M.A. 3631 of 2012 in Const.P.105 of 2012).

Nemo for Applicants (in C.M.A. 4210 of 2012 in Const.P.105 of 2012).

Nemo for Applicants (in HRC 23957-S of 2012).

Adnan Iqbal Chaudhry, Advocate Supreme Court for M/s Vision Network.

Munir A. Malik, Senior Advocate Supreme Court (Nemo) along with Faisal Siddiqi, Advocate (Nemo) for M/s. AURORA.

Mehmood A. Sheikh, Advocate Supreme Court for AAJ TV, Kashash TV, AVT, DHOOM, APNA TV.

Asad Kharl (Reporter) for Express TV.

Nemo for VIVE TV.

Shahid Mehmood Khokhar, Advocate Supreme Court for PTV.

Nemo for PUNJAB TV.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for PEMRA (in Const.P.104 of 2012) (regarding obscene and objectionable material in media).

M. Bilal, Senior Advocate Supreme Court and Babar Bilal, Advocate Supreme Court for Airways Media.

Nemo for ARY.

Dr. Amjad Hussain Bukhari, Advocate Supreme Court for Cable Operators.

Mian Gul Hassan Aurangzeb, Advocate Supreme Court for Pakistan Broadcasters (in C.M.A. 3521 of 2012 in Const.P.104 of 2012). (regarding obscene and objectionable material in media).

Dr. Amjad Hussain Bukhari, Advocate Supreme Court and M.S. Khatta, Advocate-on-Record for Cable Operators Association (in C.M.A. 3464 of 2012 and Const.P.104 of 2012) (regarding obscene and objectionable material in media).

Tariq Ismail for Indus Television.

Date of hearing: 15th January, 2013.

ORDER

JAWWAD S. KHAWAJA, J.– This order is in continuation of our orders passed on 16-10-2012 and 20-12-2012, wherein the salient aspects of the present petitions were outlined. In our previous order dated 9-1-2013, the parties and/or their learned counsel were directed to propose agreed Terms of Reference (ToRs), in the event the Court agreed that a Commission be appointed as prayed for by some of the petitioners. Syed Nayyab Hassan Gardezi learned ASC, present in Court, in connection with some other matter consented to chair the meeting which was held on 9-1-2013. He has filed a report which is made part of the record as C.M.A. No. 135 of 2013. The report records the agreed upon ToRs as well as the points of difference between the parties. The report has been seen and counsel representing the parties as well as the parties present in person have been heard.

2. Based on the previous hearings and the nature and extent of the important constitutional issues raised in these petitions, we are of the opinion that the appointment of a Commission will best serve the objectives of a fully considered decision on these petitions and the multiple constitutional issues arising therein. It will also provide the most efficient use of Court time. The report submitted by Mr. Gardezi was examined on 10-1-2013 and submissions of the parties and/or their learned counsel were also noted which are considered below.

3. In the report it has been noted that Mr. Nasir Jamal, Director General, Internal Publicity, Ministry of. Information and Broadcasting was not in favour of the appointment of a Commission. Mr. Zulfiqar Khalid Maluka, ASC representing the aforesaid Ministry was asked to elaborate on the reasons behind the stance of the Ministry. He stated that the Ministry considers the appointment of a Commission unnecessary because the Press Council of Pakistan already deals with the same issue. This contention, however, is not entirely correct because the jurisdiction of the Press Council of Pakistan is restricted to the print media while the present petitions are largely in relation to the electronic media. Furthermore, even in relation to the Press Council of Pakistan and the print media, the existing laws and any Code of Conduct require examination in the context of fundamental rights guaranteed by Articles 19 and 19A of the Constitution. In this view of the matter, the reservation/objection to the appointment of a Commission is not tenable.

4. At this point it is important to bear in mind that one of the important issues arising in these petitions relates to the creation and utilization of secret funds. Some of the petitioners allege that a sum in excess of Rs.4 billion in the budget of the Ministry of Information and Broadcasting falls in this category because it remains un-accounted for. Mr. Maluka challenges this assertion. Yet, even he concedes that there is a substantial sum of Rs.140 million approximately which is designated as secret and in respect of which the Ministry claims privilege against disclosure of its details. Prima facie, in view of the provisions of Article 19A of the Constitution, it would appear that the Ministry of Information and Broadcasting would be obliged to disclose the nature and use of all funds allocated to it including the so-called secret funds. The Ministry asserts that it is entitled under law, to maintain secrecy in respect of such funds and the details of disbursement from these secret funds are privileged information. Mr. Maluka was directed to file in Court, in sealed cover for the Court’s examination, the nature and details of the use of such funds together with the basis on which the privilege and claim for non-disclosure is based. It will then be for the Court to make a determination in respect of the privilege claimed by the Ministry. Likewise Mr. Asad Kharal one of the petitioners has stated that 27 other Ministries of the Federal Government also have secret funds, the use of which is neither accounted for nor disclosed. The learned DAG shall provide particulars of such secret funds, if any, and shall also set out reasons for non-disclosure of utilization of such funds, if privilege is claimed in respect of the same.

5. Mr. Hasnain Ibrahim Kazmi, ASC representing the Pakistan Electronic Media Regulatory Authority (“PEMRA”) also contended that it was not necessary to appoint a Commission. According to him, PEMRA had already issued the Pakistan Electronic Media Regulatory Authority (Content) Regulations 2012 vide Notification No. S.R.O.1265(I)2012, dated 25th September, 2012. It was submitted by Mr. Kazmi that PEMRA being the competent authority enjoying a statutory mandate for framing content regulations and a code of conduct for the media and effective enforcement thereof, should alone determine these matters. Over the course of the previous hearings, the Court has repeatedly referred to the provisions of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (the “PEMRA Ordinance”). In particular the constitution of PEMRA given in section 6 of the PEMRA Ordinance has been noted. It stipulates that “the Authority [PEMRA] shall consist of a Chairman and twelve members to be appointed by the President of Pakistan”. 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 contended that Dr. Abdul Jabbar was notified and was acting as Chairman of PEMRA. This contention is not correct because, firstly, Dr. Jabbar was never appointed as acting Chairman. The notification dated 14-5-2011 merely stipulates that “Dr. Abdul Jabbar, Executive Member will look after the work of Chairman”. Secondly, it is to be noted that the PEMRA Ordinance does not provide for the position of acting Chairman. In this context we had observed in our order dated 11-12-2012 as under:-

“… the learned D.A.G. and learned counsel for the PEMRA state that the question as to the status of the Acting Chairman has already been raised in Constitution Petition No. 104 of 2012 and the Government as well as the Acting Chairman, who appeared in that case are aware that this is an important issue going to the root of the authority and independent status of PEMRA. Learned counsel for the PEMRA also drew our attention to a number of documents including the letters addressed to various authorities with the object of receiving input for framing the content Regulations. These letters/documents have been issued by Dr. Abdul Jabbar indicating that he is the Chairman PEMRA although he is only Acting Chairman and prima facie, the statutory provisions of the PEMRA Ordinance appear not to have been complied with”.

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. We may also add that the position of Chairman PEMRA has to be filled by a person who fulfils the exceptional and stringent requirements prescribed in the PEMRA Ordinance and not by a casual appointee. Moreover, the appointment has to be made through an open and transparent process to ensure that the appointee meets the objective criteria specified in the PEMRA Ordinance.

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. Resort to such loose and offhand reasoning will amount to an invocation of the ‘doctrine of necessity’ which our constitutional courts no longer adhere to. Reference may be made in this regard to our judgment in Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879). The Court, therefore, cannot condone patent disregard for the rule of law by the appointing authority, reflected in the non-appointment of a PEMRA Chairman for more than two years. Furthermore, it was pointed out to Mr. Kazmi that whatever limited benefit the de facto doctrine still confers upon public functionaries is limited to those functionaries who act bona fide and whose legal status has not been objected to. In this case, however, in our order of 17-9-2012 passed in Constitution Petition No.104 of 2012, the Court itself observed that “it has been pointed out to us that there is no permanent Chairman of PEMRA…” After this defect had been highlighted in as public and authoritative a document as a Supreme Court order, it is hard to see how Dr. Abdul Jabbar’s subsequent acts can be considered bona fide for the purpose of giving legal recognition or protection to the same. The Content Regulations purported to be prepared and issued in the name of PEMRA are, therefore, held to be of no legal consequence.

8. Be that as it may, as stated earlier in this order, the Court is of the view that some of the issues raised in these petitions require gathering, collation and perusal of extensive material as well as technical expertise in the area of media regulation. To examine these issues, the Court deems it appropriate to appoint a Commission, in exercise of powers vested in it by Order XXXII of the Supreme Court Rules, 1980 and Order XXVI of the Code of Civil Procedure, 1908.

9. The parties were asked to suggest possible names for the Commission and propose Terms of Reference (ToRs) for it. Different names were suggested by the parties. However, after considering these, the names of Justice (R) Nasir Aslam Zahid and Mr. Javed Jabbar were unanimously agreed upon to constitute the Commission. We, therefore, appoint Justice (R) Nasir Aslam Zahid and Mr. Javed Jabbar as a two-Member Commission which shall be headed by Justice (R) Nasir Aslam Zahid. The worthy members of the Commission have consented to act as a Commission. The ToRs of the Commission are as under:–

A. To consider the role of the Ministry of Information and Broadcasting and other Government agencies in ensuring freedom of print and electronic media and whether or not there is information and material brought before the Commission to justify the continued functioning of the Ministry, consistent with Article 19 of the Constitution.

B. To analyze whether and to what extent PEMRA has been able to fulfill its developmental mandate and regulatory functions independently under the PEMRA Ordinance.

C. To determine if it advances or is consistent with the fundamental right under Article 19 ibid to allow the Government or its instrumentalities to be major players in the media through State Television and Radio broadcasters.

D. To ascertain if PTV, PBC and APP, the recipients of public funding of billions of rupees, have independent in-house management and transparent policies in place which advance the objectives of fairness and evenhandedness expected of publicly funded entities and to determine if there are adequate checks against lop-sided or biased dissemination of information by these publicly funded entities.

E. To consider the feasibility of letting the media adopt a self-regulatory code of conduct instead of content regulation, in the light of international standards and best practices.

F. To enquire into allegations of media-related corruption and suggest steps to ensure impartial and independent media for the upcoming elections.

G. To inquire whether, when giving money to different media houses directly for or on the pretext of advertisement, were the government or its functionaries pursuing a transparent, duly approved, bona fide government advertisement allocation policy or were the decisions to buy advertisement space with public money made arbitrarily or without objective criteria or to favour particular channels, journalists or media houses.

H. To propose a single, transparent, objective, non-discriminatory policy for allocation of government advertisements among electronic and print media.

I. Whether the Federal and Provincial Governments, autonomous and semi autonomous bodies, Government corporations or agencies adhere to PPRA rules or other transparent processes while granting advertisement contracts to advertising agencies or media houses. If not, then to suggest processes which are fair and transparent and which ensure the greatest value and fairest dissemination of information.

10. For the purpose of its work and to facilitate it:–

(i) the Commission shall have all the powers set out in Order XXXII of the Supreme Court Rules, 1980 together with such powers as may be considered necessary or appropriate by it to make its report on the ToRs set out in para 9 above;

(ii) the Registrar of this Court shall arrange office facilities for the Commission as and when required, at the Karachi Branch Registry of the Court or at Islamabad, if requested by the Commission;

(iii) the office is directed to provide two sets of the complete record of this case to the Commission;

(iv) the expenses on staff, logistics, travel within the country, stay outside Karachi, public notices for information or for soliciting public inputs etc. shall initially be borne by the Ministry of Information and Broadcasting subject to subsequent apportionment, and reimbursement by other parties based on the report of the Commission;

(v) the Commission may seek such further orders or clarifications from the Court as it may consider necessary;

(vi) the Sindh High Court may, if so requested by the Commission, depute a Judicial Officer to act as the Secretary of the Commission.

11. The report of the Commission may be submitted in Court on or before 31-3-2013 or on such other date as may fixed by the Court if requested by the Commission.

MWA/H-4/S Order accordingly