By Pir Abdul Wahid Advocate
(This article is a ‘work-in-progress’ and I will keep updating it after further research.As a former legal counsel for PEMRA and its related media cases, if you have further queries regarding a legal matter I will be happy to help.I can be reached at pirwahid@joshandmak.com)
It was not until the late nineties that we saw independent private TV channels and media houses in Pakistan, allowed by the then president Musharraf , to compete with the state run PTV channel. Then, with the consent of government giving licenses to media houses to run their channels the government came up with a regulatory body called Pakistan Electronic Media Regulatory Authority to look after these channels and regulate them.
The PEMRA Authority and its basic Ordinance has often been criticized to be in contravention of the Constitution of Pakistan which guarantees freedom of the press and expression as a fundamental right under Article 19 which states that “Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence.”
It has been felt that the Executive has taken undue advantage of the provisions of “reasonable restrictions imposed by law”, under which the draconian government media watchdog, Pakistan Electronic Media Regulatory Authority (PEMRA) was established under PEMRA Ordinance 2002 for the purposes of regulating private electronic media. On 16 May 2006, the National Assembly adopted an amendment to PEMRA to empower the authorities to shut down broadcasting channels on the grounds of telecasting contents “offensive to commonly accepted standards of decency”. Under the amended Act, PEMRA is authorized to seize equipment, withdraw licenses and conduct investigations and empowers the police to arrest electronic media journalists without a warrant. Violations are punishable by prison sentences of up to three years.
In February 2007, the PEMRA Act was further amended to insert some more draconian clauses. An amended sub-section (5) of Section 29 reads: “Provided further that the Authority or the chairman may seize a broadcast or distribution service equipment or seal the premises, which is operating illegally or (in) contravention of orders passed under Section 30.” A new provision – Section 39 (A) – even authorized the PEMRA to make rules and regulations on its own from time to time by simply issuing notifications in the official gazette. The amendment also increased the fine for violators to Rs. 10 million from the existing Rs. 1 million.
In the original PEMRA Act, there was a three-member committee having one nominee each from a licensee and the PEMRA and a retired judge of a high court or the Supreme Court to recommend cancellation of a license after receiving complaints. But in February 2007, the law was amended to replace the three-member committee with Council of Complaints whose opinion must be taken before cancellation of a license. But the government has not yet constituted a proper the Council of Complaints free from criticism.
Possible list of International law Conventions Violated by the PEMRA:
The PEMRA Ordinance is said to be violation of several international covenants including
Article 19 of the Universal Declaration of the Human Rights,
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”
Article 14 of the International Convent on civil and political rights guaranteeing right to fair trial
Article 14
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.
4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
Article 19 of the International Covenant on Civil and Political Rights, 1976
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order or public health or morals
