By Pir Abdul Wahid (Advocate High Court) and Barrister Aemen Maluka
The media in Pakistan is a great source of information via both its electronic and paper divisions it has provided awareness and news to the people for more than a decade now. Previously we only had national television and it is still the main source of information in many rural parts of Pakistan where there is no communication infrastructure available. Thanks to the miracle of Cable and Satellite TV, current media is very much advanced in terms of channels pertaining to entertainment, news, sports, infotainment, religious and other types of channel. In addition to the above there is also a variety of locally published online and paper newspapers, which contain information on almost all aspects of modern life and politics in Pakistan.
The National television is PTV (Pakistan Television), which has its own variety of channels and was originally a private Pakistani project collaboration with a Chinese company but was soon taken over by the then President General Ayub Khan and was made a part of State. Pakistan’s first private channel was STN, which went on air in 1990 and was considered as an alternative source of entertainment at that time but this was only available in major cities of the country. With the passage of time people started developing interest in satellite receivers where mostly preferred networks were Indian and Western Music and drama channels. But in the late 90s and early 2000s we had our own Pakistani private TV channels coming up such as Indus Vision, on Geo and so on.
Basic Legal Framework
In order to keep a check on these channels and media at large, for reasons for decency and defence, the Government of Pakistan came up with a basic legal framework for electronic media law through many Acts, Rules and Ordinances. The Pakistani electronic media legislation is scattered in different laws, regulations and rules. The major national laws that contain electronic media are Pakistan Electronic Media Regulatory Authority Ordinance 2007, Pakistan Electronic Media Regulatory Authority Rules 2002, Broadcasting Regulations 2002, Cable TV Regulations and Council of complaint (Organisation and Function) Regulations 2002.
These laws, regulations and statutes, generally very similar to each other, concern issues of licences, ineligibility for licence and lay down the terms and conditions imposed on the licensee, establish a council for complaints, prohibition, offence and penalty and appeal. These laws provide definitions of broadcast media, broadcast station, broadcaster, cable TV, cable television operator, cable television system, copyright, council, electronic media, eligible channel, illegal broadcast operation,illegal cable TV operation, licence, and program etc.
Pakistan Electronic Media Authority (PEMRA) Ordinance in 2002
This article is mainly about the Pakistan Electronic Media Authority (PEMRA) Ordinance in 2002, which established PEMRA as regulatory authority in Pakistan for Media. The authority works under cabinet division of Government of Pakistan (GOP), which comes under direct command/control of Prime Minister.
The preamble of the Act states the following objectives:
- To improve the standard of information, education and entertainment, enlarge the choice available to the people of Pakistan in the news media, current affairs, religious knowledge, art, culture, science, technology, economic development, social sector concerns, 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 access of the people to mass media at the local and community level; an
- To ensure accountability, transparency and good governance by optimising the free flow of information.
The main functionof the PEMRA Authority is being responsible for regulating the establishment and operation of all broadcast media and distribution services in Pakistan established for the purpose of international, national, provincial, district, local or special target audiences. The Authority regulates the distribution of foreign and local TV and radio channels in Pakistan.
Role of the Electronic Media Regulatory Authority (PEMRA)
The Electronic Media Regulatory Authority (PEMRA) controls electronic media by implementing the national legislation governing electronic media, some of which were adopted to implement international treaty obligations.
Issuing of Licences
The Authority has exclusive right to issue a licence for the establishment and operation of all broadcast media and distribution services within 100 days. It has the power to determine the number of licences to be issued in each category and charges fees for the grant of a licence and annual renewal.
The Authority evaluates the application as to economic viability, technical competence, financial capability, credibility and track record and the extent of Pakistani share in ownership. The authority can impose any other condition as appears necessary.
The Authority calls for tender through advertising and determines the number of licences to establish and operate a broadcast station. After receiving the applications the Authority forwards them to the Frequency Allocation Board (FAB) for frequency allocation and issues the licence after allocation frequency.
Declaring Licences Ineligible
There are criteria for refusing the licence, namely that the applicant is not a Pakistani citizen or resident in Pakistan, a foreign company established under a foreign law, or the company’s majority of shares are owned or controlled by foreigners and managed by a foreigner, the first application was rejected due to contravention of a provision of the Act or the applicant is made by any person funded orsponsored by a foreign government, foreign non-government organisation, organisation, and cross media restriction.
The Authority can refuse a licence on the ground if it is against the public interest. But there is no definition of public interest anywhere in these media statutes.
Setting Up and Maintaining Complaint Councils
There are five offices of the Complaint Councils.One is in the federal capital Islamabad headed by a Coordinating Officer and the remaining four are regional councils in provincial capitals and fully competent to take action on the complaints. The Councils receive complaints directly from the public or the Authority. A broadcast and a cable TV network station etc. about program broadcasts or programmes distribute these complaints. The Councils can recommend to the Authority the action/opinionof censure fine and or revocation of licence. The Councils must dispose of the matter within 30 days. The Councils have the power to summon a licensee against whom a complaint has been made and call for his explanation regarding any matter. After that, Councils may recommend the suspension or revocation of a licence or censure or impose a fine on a licensee for violating the Code of Conduct for programmes and advertisements to the Authority. Each Council has six members headed by commissioner who hold these positions for two years. A minimum of one meeting in every month must take place.
The Councils monitor all aspects of broadcasts including the programmes’ content and quality of standards of the transmissions of the broadcast stations. They keep the Authority informed regarding the feedback and public response to the contents, quality and impact of the programmes and advertisements broadcast. The Councils submit monthly reports to the Authority with regard to the evaluation of the programmes, advertisements, their contents and quality. The monthly reports also include the number of complaints received and disposed of by the Councils.
The Councils are recommendatory bodies and assist the Authority in carrying out the objectives and purposes of the PEMRA Ordinance. They work independently under the supervision of the Authority.
The Authority or an officer may prohibit the broadcasting, re-broadcasting or distributing any program or advertisement on the grounds that it raises hatred among the people or it is prejudicial to the maintenance of law or disturbance of the peace and endangers national security or it is against Ideology of Pakistan or pornographic, obscene or vulgar etc. A foreign broadcasting service may also be prohibited as unacceptable.
A person who has a broadcast media licence or landing rights permission cannot sell its air time to any foreign broadcaster without prior permission from Authority. The licensee cannot merge or amalgamate with any other person without the prior approval of the Authority.
Offences and Penalties
The Authority may impose imprisonment of three years or a fine or both, if anyone damages, removes, tampers or commits theft of any equipment of a broadcasting media or distribution service station. Upon information supplied by the Authority, the courts in Pakistan can issue search warrants against unlicensed broadcast media or distribution service operators and seize all or any equipment.But the Authority required some amendment in laws with regard to absolve of its function.
“Another amendment requires federal, provincial and district governments to assist the Authority in [the] discharge its functions. This means [the] police has been empowered to take action on a report from an authorized PEMRA official. Similarly the bill also allows PEMRA officials to get a search warrant from the Court” (which court, it hasn’t been defined) and raid with the help of police any premises, which is suspected of housing an illegal broadcasting station.”
Any broadcaster media licensee or its representative who violates or assists the violation of any provision of the Ordinance is liable to imprisonment three years imprisonment or fine or both. Any distribution service licensee or its representative who violates or assists the violation of any provision of the Ordinance is liable to one-year imprisonment or fine or both. If these acts are done by a person, who has no licence than four years imprisonment or a fine or both may be imposed, and in addition to confiscation of the equipment.
The Authority authorises an officer/official to inspect the place where the illegal operation is being carried out. The officer is assisted by the local law enforcing authorities as well as his own force and may seize the equipment being used for the illegal operation but needs prior permission of the Authority. Any cable TV operator or person who violates or assists the violation of any provision of the Ordinance is liable to imprisonment for six months or fine or both. Where they repeat the same acts then three years imprisonment or fine or both.If a person, who has no licence, carries out the illegal act then the law provides for four years imprisonment or a fine or both. Furthermore, the equipment will also be confiscated.
The Authority has the power to revoke or suspend the licence of a broadcast media or distribution service on the following grounds, failed to pay the fee, the annual renewal fee or any other charges including fine, failed to comply with any condition imposed on the licensee or contravened any provision of the ordinance or rule or regulation. It can also impose a fine up certain amount after giving notice and considering the explanation of the cable TV operator.
The Councils may recommend to the Authority appropriate action of censure, fine against a broadcast or cable TV network station or licensee for violation of the Code of Conduct for programmes and advertisements.
The Ordinance clearly states that the abovementioned offences are compoundable and cognisable.
The aggrieved person may appeal to the Authority within 30 days against the action of the Authority’s officer and the Authority will decide the matter within 45 days. After that, a further appeal to the Higher Court is possible within 30 days against the decision or order of the Authority.
As the legal counsel for PEMRA in many cases, I have been able to note a trend of ‘hyper-litigation’ in the recent years where internal bureaucrats running the institution have used these regulations and other constitutional loopholes to challenge each other’s offices and seniority. Many of these rules were set up with a good intention and it has been unfortunate that many of these have been used as a vehicle for political mud slinging. The PEMRA as an institution controlling media requires stability and also a trend of obvious neutrality.
I will be commenting upon the recent saga of the Geo News Ban on PEMRA in another article, in terms of its constitutional impact and the state of blasphemy laws in our country.