Pakistan Electronic Media Legal and Regulatory System. Muhammad Abrar. University of Glasgow, Glasgow, UK

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1 Journalism and Mass Communication, ISSN January 2014, Vol. 4, No. 1, D DAVID PUBLISHING Pakistan Electronic Media Legal and Regulatory System Muhammad Abrar University of Glasgow, Glasgow, UK In this paper, the legal and regulatory system of Pakistan media TV will be examined. In the digital era, electronic TV media has become one of Pakistan s fastest growing service industries, but there is still a need for considerable improvement with regard to the laws and regulations governing the activity. It defines the Pakistan electronic regulatory process and the relevant media laws. After that, it discusses enforcement mechanism operating in Pakistan. Lastly, it suggests some recommendations. Keywords: media, regulation, enforcement, broadcasting, Pakistan, television Introduction This paper defines the Pakistan media legal and regulatory system. The Pakistan Electronic Media Regulatory authority (PEMRA) directly regulates private electronic TV media, namely cable TV and others broadcastings in Pakistan. This regulatory authority controls Pakistani media by enforcing national laws. The following media laws will be considered completely first time in this paper: PEMRA (Amendment) Act 2007; Cable TV Regulations 2002; PEMRA (Council of Complaints) Rules 2010; and Broadcasting Regulations National Electronic Media Laws The authority, as a regulating body, has legislative, executive, and judicial powers. It makes rules that apply to a media TV industry, enforces those rules, and hears initial cases that involve alleged violation of those rules. The authority or Council of Complaints may impose fines or other punishments against infringements. The decisions of the authority are subject to judicial review. There are a number of national laws in Pakistan, which regulate electronic media. Pakistan electronic media legislation is scattered in different laws, regulations, and rules. The major national laws that contain electronic media are PEMRA Ordinance 2007 and Rule 2002 with other regulations. These two are the main legislative measures regulating electronic media operators (PEMRA, 2014). However, in addition, there are special regulations Cable TV Regulations 2002, Broadcasting Regulations 2002, and PEMRA (Councils of Complaints) Rules 2010, which are also relevant and examine collectively (Azmat, 2012). The statutes 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 programme etc. These statutes are generally very similar to each other. So, it is not discussed individually but into two The author would like to thank Professor Rosa Greaves and Tom Guthrie for helpful comments on an earlier draft. Muhammad Abrar, Ph.D., School of Law, University of Glasgow.

2 PAKISTAN ELECTRONIC MEDIA LEGAL AND REGULATORY SYSTEM 37 sections. There are two aspects of national media laws: regulation and enforcement. Regulatory Process In this subsection the following aspects of the regulatory process will be considered: the grant of a licence; ineligibility for the grant of a licence; and the terms and conditions imposed on the licensee (Azmat, 2012). Grant of a Licence The authority has exclusive right to issue a licence. The licence must be issued within 100 days of the application being made. It has the power to determine the number of licences to be issued in each category and charge 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 a 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. There are criteria for refusing to issue the licence, namely that the applicant is not a Pakistani citizen or resident in Pakistan, or the applicant is a foreign company established under a foreign law, or the applicant company s majority of shares are owned or controlled by foreigners and managed by a foreigner or the application is made by any person funded or sponsored by a foreign government and organisation. The authority can revoke or suspend the licence of a broadcast media or distribution service if the licensee fails to pay the licence fee, the annual renewal fee or any other charges including fines or contravenes any provision of this ordinance or rules or regulations. The authority can refuse a licence on the ground that it is against the public interest. But there is no definition of public interest anywhere in these media statutes. A broadcaster or cable TV operator who is issued a licence under this Act has several obligations imposed on him. The authority makes sure that every licence follows the terms and conditions imposed to ensure preservation of the sovereignty, security, and integrity of Pakistan and the national, cultural, social, and religious values and the principles of public policy. The authority also ensures that all programmes and advertisements do not contain or encourage violence, terrorism, racial, ethnic or religious discrimination, sectarianism, extremism, militancy, hatred, pornography, obscenity, vulgarity or other material offensive to commonly accepted standards of decency. There is also another condition, which is as follows: A person who is issued a licence under this ordinance shall not broadcast or distribute any programme or advertisement in violation of copyright or other property right. In addition to the general terms and conditions contained in the schedule, the authority may impose on the licensee such other terms and conditions as appear necessary. Enforcement Process In this subsection the following aspects of the enforcement process will be considered: Council of Complaints, prohibition, offence and penalty, and appeal.

3 38 PAKISTAN ELECTRONIC MEDIA LEGAL AND REGULATORY SYSTEM Councils of Complaints There are seven Councils of the Complaint Councils. One is in the federal capital Islamabad headed by a Chairperson and five members and the remaining six are regional councils in provincial capitals. A Council of Complaint is a recommendatory body that assists the authority in carrying out the objectives and purposes of the PEMRA Ordinance. Each Council of Complaints works independently but under the supervision of the authority. The PEMRA is the regulating and enforcing body. An individual can lodge a complaint directly to a Council of Complaint. These complaints can be raised against broadcast media companies and distribution service operators. A Council of Complaint cannot take final action on these complaints. A Council just recommends to the authority a number of actions including a censure, a fine and/or revocation of a licence. As a recommendatory body, a Council of Complaint gives its recommendation to the authority, and authority gives its decision in the light of Council s recommendations. It is PEMRA which takes the final decision. Any person, who is unhappy with the decision of the authority, may appeal to the High Court within 30 days by way of judicial review. There may be a further appeal to the Supreme Court. The Council has the power to summon a licensee against whom a complaint has been made and call for an explanation regarding any matter. After that, the Council may recommend to the authority for 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. The Council consists of six members headed by a chairperson who holds the position for two years. The Council monitors all aspects of broadcasting including programme content, quality and standards of the transmissions from the broadcast stations. The Council keeps the authority informed on feedback and public response to the programme content, the quality and impact of the programmes and advertisements that are broadcasted. The Councils submits bi-annually reports to the authority with regard to the nature and number of complaints received, recommendations made by the Council and the action taken by the authority. Prohibition The authority or an officer may prohibit the broadcasting, re-broadcasting or distributing any programme 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 a 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 has been granted significant enforcement powers in order to ensure compliance with the law. For example, the authority may impose a fine which may extend to 10 million rupee if a media company or a distribution service violates or abets the violation of any of the provisions of the Ordinance. The authority has several powers at its disposal. It may order up to three years imprisonment or a fine or

4 PAKISTAN ELECTRONIC MEDIA LEGAL AND REGULATORY SYSTEM 39 both, if anyone repeats the violation and damages, removes, tampers, or commits theft of any equipment of a broadcasting media or distribution service station. The authority may also impose a four-year imprisonment or a fine or both, in addition to the confiscation of the equipment, if anyone without a licence violates any of the provisions of the Ordinance. 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. The authority required some amendment in laws with regard to discharge 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 authorised PEMRA official. Similarly, the bill also allows PEMRA officials to get a search warrant from the Court (which court, it has not been defined) and raid with the help of police any premises, which is suspected of housing an illegal broadcasting station (Jan, 2005). The authority may also authorise 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 a fine or both. If the illegal act is carried out by a person, who has no licence, then four years imprisonment or a fine or both. Furthermore, the equipment will also be confiscated. The authority can 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. The authority can impose a fine up to certain amount after giving notice and considering the explanation of the cable TV operator. The Complaint 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. These offences are compoundable and cognisable. Appeals An aggrieved person may appeal to the authority itself within 30 days against the cable TV action of the authority s officer and the authority will decide the matter within 45 days. After that, a further appeal to the High Court is possible within 30 days against the decision or order of the authority. Judicial Review The judiciary can adjudicate disputed or controversial decisions adopted by either an administration officer or by the authority. It is a further step towards the enforcement mechanism. The following section describes the courts empowered to adjudicate these matter. High and Supreme Courts The remedy against the order of PEMRA authority is to seek a First Regular Appeal (FAO) before High Court. In the case of broadcasting, the High Court exercises appellate jurisdiction.

5 40 PAKISTAN ELECTRONIC MEDIA LEGAL AND REGULATORY SYSTEM The Supreme Court is the apex of Pakistan s court system and it exercises original, appellate, and advisory jurisdiction (The Constitution of the Islamic Republic of Pakistan, pp ). It is the Court of final appeal and for that reason, the final arbitrator of law and of the Constitution. As a result, its decisions are binding on all other courts in Pakistan Broadcasting cases are referred to the appellate jurisdiction (Supreme Court) in the form of a filing of a Civil Petition for Leave to Appeal (CPLA) against the decision of High Court. Special Courts The Pakistani Constitution authorises the federal legislature to establish administrative courts and tribunals to deal with federal subjects. As a result, several special courts and tribunals have been created. They are managed under the administrative control of the Federal Government. Most of these courts function under the Ministry of Law & Justice Commission of Pakistan and some of them also operate under other ministries or departments such as the Special Banking Court, Special Custom Court, Taxation and Anti-corruption, Income Tax (Appellate) Tribunal, Insurance Appellate Tribunal, and several others. A special court s order may be appealed to the High Court or as provided in the said Ordinance or Act and the Tribunals to the Supreme Court such as the decree of Banking Court may be appealed to the Division Bench of High Court, whereas the Judgments of Provincial Service Tribunal and Federal Service Tribunal are appealed to Supreme Court. In the end, there should be a specialist tribunal rather than a just recommendatory body, with competence to resolve media issues. This is required to speed up the lengthy procedure in Pakistan Judicial system. Recommendations There are serious deficiencies in Pakistan s media enforcement mechanism. First, key media posts are appointed by President of Pakistan which can affect a fair system. According to the PEMRA Act, the authority consists of a Chairman and 12 members, all of whom are appointed by the President of Pakistan. By this manner of selection, the President of Pakistan has a direct influence on the authority s membership and, indirectly on the decision taken. Thus, the President can protect the agenda of the political party to which he belongs. The Chairman and members of the broadcasting organisation should be appointed independently of the government in a fair and transparent manner. At present, it is difficult for the Chairman and members of the authority to provide a fair and non partisan enforcement system. The authority gives its final decision on the Council s recommendation against a complaint. Thus, the authority takes the final decision and therefore works as an administrative body. The Chairman and 12 members are already appointed by President. Due to this fact, the authority or Council of Complaint as a decision making body may will be influenced by political motivate. Second, there is some restriction in the legal procedure. According to the PEMRA Act, no court shall take cognizance of any offence under sub-section or of section 33 thereof except on a complaint in writing by the authority or any officer authorised by it. This means that no individual person or organisation can go to a court directly. First, the party has to complain to the Council of Complaint or to PEMRA after that, with the approval of the authority, they can go court. It means that if any party suffers a loss due to the infringement or media piracy, that party cannot go to court directly. First, the party has to complain to PEMRA. After that, with the approval of the authority, they can go court. The impact of this provision is that no one can have direct access to a court. Due to this fact, the

6 PAKISTAN ELECTRONIC MEDIA LEGAL AND REGULATORY SYSTEM 41 enforcement mechanism is very slow and lengthy. As already discussed, Pakistan media enforcement mechanism is very slow, lengthy (Osman, 2011), and influenced. The present slow pace of the media enforcement process is not going in the right direction but a more rapid progress is required to fill the above discussed gaps. For rapid progress in India, a specialised sector tribunal (Telecom Dispute Settlement and Appellate Tribunal (TDSAT) was set up to adjudicate disagreements between service providers. disputes. So, it is proposed that there should be special media court instead of Council of Complaint for media References Azmat, R (2012). Consolidation in the name of regulation: The Pakistan Electronic Media Regulatory Authority (PEMRA) and the concentration of media ownership in Pakistan. Global Media Journal, 20(12) Jan, M. (2005). Amendments in the broadcast law: Shifting the goal post? Media Law Bulletin, I (2) Kamal, A. R. (2002). Regulatory framework in Pakistan. The Pakistan Development Review, 4(41) Osman, S. (2011). Approaches to legal and judicial reform in Pakistan: Post colonial inertia and the paucity of imagination in times of turmoil and change. Development Policy Research Centre Pakistan, PEMRA (2014). Functions. Pakistan Electronic Media Regulatory Authority (PEMRA). Retrieved from

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