PEMRA LAW

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PEMRA LAW PROPOSED AMENDMENTS By Matiullah
Jan Media Law Policy Advisor Internews
Pakistan
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Objections to proposed amendments

• Lack of consultation by PEMRA
• Bill a panic reaction of understaffed PEMRA
• Legislative process sans stakeholders view
• Broadcasters equated with cable operators
• Bill to encourage policing, not regulation
• No stakeholder on PEMRA board
• Cross media ownership not without strings
• Abolition of 3-member hearing committee
• Institutionalization of self-censorship
• PEMRA freed from constitutional checks
• Toughened content control
• No provincial say in community radio regulation

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Proposed PEMRA Amendments

• Police can arrest broadcasters/licensees
• SECTION 34A
• The offence under sub section (2) to sub section
  (4) of section 33 of this ordinance
• shall be compoundable and Cognizable sub section
  (2) says where such
• broadcast media or distribution service operator
  or a person REPEATS the violation
• or abetment of any provision of the ordinance
• COMMENTS Under the law Cognizable means police
  can act on its own
• regardless of how PEMRA explains. Unlike
  policing, regulation means a fair hearing
• opportunity given to a delinquent stakeholder to
  be followed by an honest finding
• and concluded with a financial penalty with the
  right to appeal. Police is only
• involved when some license is cancelled or some
  unlicensed operators is to be
• apprehended.
• Recommendation The amendment be withdrawn to
  ensure regulation and not
• policing. Broadcast licensees be treated with
  respect and not at par with illegal
• operators. Broadcasters be allowed to develop
  self regulatory mechanisms.

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Proposed PEMRA Amendments

• Section-6 Present PEMRA board comprises
  10-members including a chairman. The bill
  proposes 13 members including the chairman.
• Proposed increase in ex-officio members from 3 to
  4 (chairman CBR added ironically bill did not
  foresee need for Cabinet division representative
  on the board)
• 2 more members with unspecified criteria are
  proposed to be appointed (ghost members)- by the
  government
• Chairman is already appointed by the government
• COMMENT Present 5-members private sector
  majority (even though appointed by the
  government) being tipped in government favor. No
  stakeholders representation on PEMRA board (even
  as non-voting associate members) from
  stakeholders elected bodies. Is there a guarantee
  of ghost members coming from private sector?
• Recommendation Amendment to sec 6 be withdrawn
  Media and civil society should be allowed to
  nominate its representatives to PEMRA board.
  Writers, poets, artists and people with
  Presidents Pride of Performance in different
  fields should be given PEMRA boards membership.

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Proposed PEMRA Amendments

• Section 23Cross Media Ownership conditional to
  no abuse of media power
• Section 27B The authority shall prohibit any
  broadcast media from (b) engaging in any
  practice or act which amounts to abuse of media
  power by way of harming the legitimate interests
  of another licensee or willfully causing damage
  to any other person.
• advertising owned TV prog?
• PEMRA to define and act against (1) Concentration
  of media ownership (2) abuse of media power
• (3) anti-competitive practice
• Question Will the radio/TV owning newspapers be
  able to air every thing that they publish these
  days?
• Recommendation With representation in authority
  and withdrawal of restrictive amendments,
  newspapers stand a better chance of not ending
  up being regulated by PEMRA.

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Proposed PEMRA Amendments

• Section-30 B Abolition of 3-member committee
  headed by a retired judge
• Committee never constituted by federal government
• Chaired by retired SC or HC judge
• One rep each from concerned licensee and PEMRA
• Committees opinion must for suspension/revocation
  
• Opinion Whether or not a licensee committed
  violation?
• Question Isnt committee the best forum for
  expeditious and fair resolution of matters which
  concerns a sector where time matters the most?
• Recommendation The amendment be withdrawn. PEMRA
  should not be afraid of facing the licensee in
• a committee if it has a strong case.

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Proposed PEMRA Amendments

• Section 21 Role of Provinces in broadcast
  licensing reduced.
• Presently, in case of provincial objection, PEMRA
  shall invite comments but amendment proposes
  that it may
• Presently provinces have role in issuance,
  suspension, revocation or cancellation of license
• Amendment restricts role to issuance only
• Presently licensee has right to public hearing
  against decision
• Amendment restricts the right to official hearing
  only
• Question Did the federal government or the
  authority take the provinces into confidence
  before a final draft of an amendment that will
  affect the legally vested right of the provinces?
• Recommendation Broadcast communication is a
  federal subject but its operations is subject to
  provincial laws. Provinces should, in principle,
  be brought on board on this amendment. After all
  PEMRA is asking for their help in enforcement.

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Proposed PEMRA Amendments

• In-house Monitoring Committees
• Section 20(f) The licensee shall . appoint
  an in-house monitoring Committee, with the
  approval of the Authority, to ensure compliance
  of the Code
• The committee has censorship mandate to ensure
  compliance of the code.
• The amendment is likely instill a sense of
  self-censorship, warrant interference in
  broadcasters professional practices and influence
  broadcasters independent editorial judgment.
• Question How will it apply to PEMRA licensed TV
  news channels? Or it is only for the cable TV
  operators? If so, does the law say so?
• Recommendation The amendment be withdrawn. The
  code of conduct should first be developed in
  consultation with licensees and then implemented
  voluntarily or through a self regulatory
  mechanism.

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Proposed PEMRA Amendments

• Constitutional safety valves removed
• Section 21(3) being deleted It says, ..the
  authority shall ensure that consultation with
  provinces is conducted with the objective to
  facilitate freedom of expression.
• Section 32 proviso being deleted It says,
  The authority may grant exemption from any
  provision of this ordinance provided that the
  grant of exemption shall be based on guidelines
  and criteria identified in the rules and that
  such exemption shall be made in confirmty with
  the principles of equality and equity as
  enshrined in the constitution.
• Rules never made and discretionary powers of
  authority enhanced to violate the law passed by
  parliament and freeing itself from constitutional
  principles
• Question Can PEMRA cite one example of what kind
  of extra- circumstances should trigger exemption
  from PEMRA law and if there are some why cant
  parliament be asked to amend it?
• Recommendation Such power be completely
  withdrawn. Or PEMRA should find some time to
  make rules for exercise of such power and in fact
  restore the requirement of exercise of this power
  in conformity with the constitutional principles
  of equality and equity. Freedom of expression
  related proviso in sec 21 be restored

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Proposed PEMRA Amendments

• Power to vary terms conditions
• Section 30(2) being added The authority may
  vary any of the terms and condition of the
  license where such variation is in the public
  interest.
• Term public interest is vague
• A gentlemans agreement?
• Question Isnt it shifting of the goal post?
  What is a public interest in Pakistani context?
  Isnt license a contract to be respected rather
  than changed unilaterally?
• Recommendation The amendment be withdrawn.
  Otherwise,
• Imagine PEMRA first varying license terms and
  conditions for half of the licensees before
  exempting the other half from these, as per the
  amended law.

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Proposed PEMRA Amendments

• Appeal before High Court
• Section 30A being added Any person aggrieved by
  any decision or order of the authority may within
  30 days of receipt of such decision or orders,
  prefer an appeal to the high court.
• Appellate forums reduced
• Preventing pre-emptive injunction from court
• High courts writ jurisdiction over
  constitutionality of any provision of PEMRA law
  being excluded
• Question Will PEMRA wait for high courts
  temporary injunction before enforcing its
  orders/decisions? Will a writ still lie before a
  high court from an aggrieved or he has to wait
  for the decision or order to challenge it?
• Recommendation Pre-emptive injunction should not
  be restricted, lower courts be allowed to issue
  pre-emptive injunctions and authority should
  provide right to be heard and that of appeal
  within the authority against its decision.

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Internews assistance/resources

• Internews web site www.internews.org.pk
• Contact
• Matiullah Jan
• Media Law and Policy Advisor
• Internews Pakistan
• 0300-5278569
• matiullah_at_internews.org
• COPIES OF THIS PRESENTATION ARE AVAILABLE
• THANK YOU