SHC sets aside Pemra’s restrictions on coverage of court proceedings

The Sindh High Court on Friday set aside the Pakistan Electronic Media Regulatory Authority’s restrictions in which television news channels were directed to refrain from airing tickers and headlines with regard to court proceedings.

Issuing its judgment on petitions of the Pakistan Federal Union of Journalists (Dastoor) and court reporters challenging Pemra’s impugned directives with regard to court proceedings coverage, a high court division bench comprising Chief Justice Mohammad Shafi Siddiqui and Justice Jawad Akbar Sarwana observed that the impugned directives had disturbed the Code of Conduct 2015 balance between protecting the freedom of expression, the right to information, the right to a fair trial and due process, and the freedom of trade, business and profession, etc.

It also observed that impugned directives, even if assumed to be equivalent to rules/regulations framed under the law, also fail the test of reasonable restrictions imposed by law in the light of the ARY Communication case.

The high court stated that as set out by the Supreme Court in the ARY Communication case to regulate the two critical fundamental rights under Articles 19 and 19A, the media content broadcast and received in the public space is regulated under the Pemra Ordinance, 2002, through a two tiered regulatory system.

The court observed that first is the fundamental right through the independent public regulatory bodies called the Councils of Complaints, which are comprised of citizens of eminence selected from the general public, and second right pertains to Pemra, a government-controlled regulatory body.

It remarked that the primary responsibility of these two bodies is to ensure that the media content is constitution-compliant under Articles 19 and 19A and meets the reasonable restrictions under the Pemra Ordinance, rules, regulations and the code of conduct. The court observed that the importance of establishing independent Councils of Complaints amongst citizens of eminence from the public is to ensure that public representatives also review the media content for the public through a public regulatory body by applying commonly accepted or community-based standards of decency.

The SHC said that as the media content has to be put out in the public space, it is, therefore, first and foremost that an independent public body representing a broad cross-section of society reviews the media content and this helps protect, nurture and enhance the freedom of expression and right to information of the people, as well as shields the media content against government interference and control.

It further observed that in the present case, the impugned directives have been issued by the director general (Operations-Broadcast Media), Pemra, with the approval of the chairman, Pemra, and counsel for Pemra has been unable to demonstrate that the power of Pemra under clause (a) of Section 27 is not dependent on obtaining and considering the opinion of a Council of Complaint.

The court observed that the impugned directives could not leap-frog the Council of Complaints, avoiding circulation within the council. It said that contents were subject to sanitization by the Council of Complaints before their release and, thus, violated the scheme of the Pemra Ordinance, 2024, when the chairman rushed to amend/modify the statutory Code of Conduct through a simpliciter directive.

The court observed that the impugned directives, in such circumstances, are in contravention of and/or inconsistent with the provisions of Pemra Ordinance, 2002 and the impugned directives are annulled and/or set aside.

The court further observed that Pemra’s impugned directives constituted an attempt by the chairman, Pemra, to amend/modify the statutory rules without subjecting them to public scrutiny and the process required under Section 39 of the Pemra Ordinance, 2002.

The court observed that rules clearly modify/amend the code, which cannot be side-stepped by directives that lack the force of law therefore the impugned directives violate the provisions of the Pemra Ordinance, 2002, notably Section 39, and on this score, too, are of no effect.

It further observed that Pemra’s impugned directives attempted to allegedly piggyback on a judgment of the Supreme Court to modify a statutory Code of Conduct without following the statutory process.

The court observed that just because a directive in 2024 cross-references a judgment of the apex court of 2018 did not make it kosher for Pemra to avoid the procedural requirements of introducing an amendment to the Code of Conduct, i.e. through Council of Complaint and/or to elicit public opinion on the draft version before its introduction into Pemra Rules, 2009, etc.

The high court said that the judgment of the Supreme Court may be binding based upon or enunciating a principle of law, but this did not give ground to Pemra to issue a directive without following the process required to make it a law. The court observed that giving such allowance to the regulator/ executive would violate the separation of power, a fundamental principle of our constitutional construct.

It further stated that the impugned directive of Pemra is inconsistent with the Pemra Ordinance, 2002, under which the directive is made and issued, and beyond the authority conferred on the chairman, Pemra, sans the Council of Complaints. The court observed that the impugned directive cannot be sustained and is set aside.

The petitioners’ counsel, Abdul Moiz Jaffery and M. Tariq Mansoor, submitted that the impugned Pemra’s directives were tantamount to imposing a blanket ban on the coverage of court proceedings. They submitted that the impugned letters amounted to amendments to the 2015 Pemra code of conduct that could not be made without fair trial and due process of the law.

They submitted that the impugned directives violated the right of information regarding matters of public importance that were protected under Article 19-A of the constitution.

The counsel submitted that Pemra had tried to impose a ban on court proceedings coverage through such directives, a step which was against the spirit of the constitution and judgments of the Supreme Court.

Pemra had earlier defended the impugned letters and submitted that the trend of airing of observations made during the court proceedings was a potential menace and if it was permitted to flourish, it could lead to chaos and confusion in society, as court observations were flashed on television screens without any regard of context and that misled the masses, who were left bewildered and in a state of confusion because of their lack of knowledge of sub-judice proceedings.

Pemra submitted that the impugned directives were issued in the lights of the code of conduct and directions of the Supreme Court and requested the high court to dismiss the petition.

Pemra had directed TV channels that no content, including commentary, opinions or suggestions about the potential fate of such sub judice matter which tends to prejudice the determination by a court, tribunal, etc., shall be aired. Further TV channels are directed to refrain from airing tickers/headlines with regard to court proceedings and shall only report the written orders of the court.