The federal government and the executive’s strategic arms are bent upon bringing all forms of media under an extremely centralised, autocratic authority to strangulate whatever is left of media freedom and freedom of expression in Pakistan. Information Minister Fawad Chaudhry has persisted in denial, trying to defend the necessity of such a convoluted legislation. He has mocked the critics of the PMDA Ordinance and sought with a sleight of hand to keep the draft away from the public domain. There is much intrigue surrounding a brewing hybrid war on all types of media – digital and OTT streaming services in particular. All media bodies are unanimous in rejecting the entire framework of the proposed PMDA ordinance. Therefore, it requires thorough critical evaluation.

The president had promulgated the Pakistan Media Development Authority (PMDA), Ordinance, 2021, on May 7 to “regulate films, electronic, print and digital media in Pakistan” and “bring them under one converged regulator and statutory authority.” Embarrassed and faced with huge criticism, the government had to retreat from owning such a blatant, catch-all anti-media ordinance. However, persisting with its draconian designs against an already stifled media, the director general of the Internal Publicity Wing of the Ministry of Information and Broadcasting (MOIB) officially circulated a concept paper on May 20 for the establishment of the PMDA among various media bodies, supposedly to elicit their views. On July 30, a deputy director of the Internal Publicity Wing of the MOIB sought an immediate “Yes or No” response on the proposed framework of the PMDA from four media bodies (the APNS, the CPNE, the PBA and the PFUJ) vide letter F. No 2(2)21 PDMA. All media bodies again, strongly and unanimously, rejected the entire authoritarian framework.

Not content with the visible and invisible tools already available to it to control media, especially online media, the powers that be intend to repeal all media-related laws and create an authority with all-encompassing power over all. While obliterating the media as an instrument of civil society and a guardian of public interest, the principal objective seems to be to subordinate media to the imperatives of the state as its subordinate constituent. If it passes, the ordinance will be the death of freedom of expression and a media struggling to survive in Pakistan.

The increasing diversity of the media and its infinite and unstoppable reach to ever greater audiences, rather, requires more flexibility, greater openness and a nuanced approach. On the contrary, the “Concept Paper” erroneously and inversely draws justification from the “best international practices” of electronic communication frameworks of the European Union and other developed countries. The intent and scope of the best practices in developed countries is to facilitate communication, harmonise standards, strengthen freedom of expression, the people’s right to know, transparency and accountability. Media best practices are meant to preserve the varied interests of content consumers, not to throttle all means of communication.

Under the proposed PMDA framework, the executive shall nominate 12 members to the authority, with a Grade-21/22 information bureaucrat as its chairperson, including five ex-officio bureaucrats i.e., the secretaries for Information and Interior, and the chairpersons of the Pakistan Telecommunication Authority, the Federal Bureau of Revenue and the Competition Commission of Pakistan. These ex-officio heavyweight members from the interior, FBR, PTA, and CCP provide extra teeth to the authority to harass, manipulate and suppress any media outlet (Clauses 6-7). If such a powerful and hegemonic watchdog were to represent the interests of end-users and ensure media freedom, its members must be nominated through a non-partisan consensus of a joint committee of the parliament, as is done in the Election Commission of Pakistan.

As if this were not enough, the federal government would be empowered to “issue directives to the authority on policy matters”, which “shall be binding on the authority” (Clause 5). This makes the authority subservient to the whims of the government, which may misuse it for partisan and politically expeditious designs. In the interests of transparency, accountability and freedom of expression, such an authority must be autonomous of the Executive.

The concentration of power regarding all matters related to the media would make the PMDA authoritarian in nature (Clause 4: Functions of Authority). The powers include the right to grant, cancel or extend licences/NoC/declarations to all kinds of media outlets and platforms, including print, electronic, digital, film and online media. The authority would regulate the establishment and operation of electronic, print and digital media, including online platforms, films, and OTT distribution services. It would determine the circulation of print media and the ratings of electronic and digital media, and investigate and adjudicate complaints and award a whole range of punishments. It would have the power to audit advertisement revenues and accounts to levy fees and surcharges; monitor content in the light of a code of ethics, guidelines and SoPs that it will write; execute the directives of the government on its policies; allocate quotas in the central advertising list; arbitrate matters between media employers and employees; investigate, summon and prosecute any person; confiscate equipment and make arrests; and perform any other function (What is left?).

This concentration of power will leave no escape route for the media from the onslaught of an authoritarian Executive. By merging various existing authorities, the proposed PMDA will establish various directorates, including electronic media, print, digital media and film directorates, with all powers to monitor and regulate content in their respective spheres. The authority will use these Hydra’s heads not only against individual media outlets, but also more effectively against multi-media platforms and online citizen journalism.

As an afterthought, with the addition of sub-clause (3-a) to Clause 27, an advisory commission is to be created, consisting of eight members and a chairperson, to be nominated by the government (though this is not explicitly mentioned in the ordinance draft). The commission will shortlist members of media complaint councils and media tribunals, who will be nominated by the president and the federal government. This is against the constitutional scheme of trichotomy and the separation of powers. Making judicial arms, complaint commissions and tribunals part of the PMDA will compromise judicial autonomy and the due process of law. Except for the Supreme Court of Pakistan, the jurisdiction of courts to review such decisions is barred.

Pliant media complaint councils are to be established by the federal government in the provinces (Clause 27). These councils will have the power to take action on complaints and also address media workers’ complaints about non-payment of wages against employers, after the repeal of the Newspaper Employees (Conditions of Service) Act of 1973. The role of mediating disputes is also attributed to media tribunals, in passing, to give false hope to media workers and create a rift amongst media bodies. Instead, the Newspapers Employees Act of 1973 should be strengthened and extended to digital media, covering all categories of workers. The members of media complaint commissions should be from among leading civil and human rights activists, nominated by a joint committee of parliament, to protect the rights of citizens and address their grievances against the media.

Kangaroo media tribunals will be formed by the government to decide appeals against the actions of the Authority, its directorates and the media complaint councils. Instead of being nominated by the government, the tribunal members should be appointed by the chief justices of the High Courts, to ensure fair trial and autonomy of the tribunals.

The offences under Clause 41 have been made cognizable. Under Clause 40 (1-2) any licencee or declaration holder, who violates “any provision of this ordinance”, which is too broad, can be punished with imprisonment for up to three years and/or a fine of up to Rs 25 million. Repeat violation by a licencee and violation by a non-licencee will be punishable with up to five years and a fine of Rs 50 million. Clause 28 empowers the authority to prohibit, “without issuing a show-cause notice and affording an opportunity of hearing… print, electronic or digital media service and films operation.” How punitive this bureaucratic authority is can be gauged from Clause 31(8), which authorises it to level fines of up to Rs 25 million, if a licencee or registered entity fails to respond to its notice.

In these times of citizen journalism, Clause 20(2) bars any person from engaging in media services without obtaining a licence/registration/declaration and NOC. It means that freedom of expression through personal social media accounts or online platforms, such as YouTube, Facebook, Netflix, etc, will require a licence, which, besides other conditions, will require “security clearance” (Clause 22), which is done by security agencies.

Provincial autonomy and 18th Amendment will be violated by the proposed ordinance. Clause 41 makes it binding for “officers of federal, provincial, and local governments to assist the authority.” The FIA, the PTA, the CCP and other authorities will act on the direction of the authority. The character of the media is local, despite its global reach through the internet, and it should not be regulated by a centralised authority.

This legislation extends prohibitions on free speech. It harkens back to the notorious Press and Publication Ordinance of the Ayub era and other black laws, bringing them back to life with a vengeance. The ordinance not only keeps all prohibitions on free speech from past codes of ethics, but also extends the ban to “bringing into ridicule the head of state, or members of armed forces, or judicial or legislative organs of the state.” This means licenced and free-from-licensc media persons or citizens will be prohibited from criticising or questioning the members of the three branches of state (Clause 21). Then what is left of free speech?

Media bodies, civil society organisations and democratic forces must forcefully reject such a robbing of civil, political and human rights guaranteed by the constitution and UN Declarations on Universal Human Rights and civil and political covenants.

The writer is a senior journalist, columnist for Jang and secretary general of the South Asian Free Media Association (SAFMA)