Conditional guarantees on freedom of expression
The Constitution of Pakistan guarantees freedom of expression (Article 19) and right to information (Article 19-A) as fundamental rights for all citizens but makes them subject to certain restrictions, which curb open criticism of the military, judiciary, Islam and, curiously, ‘friendly relations’ with foreign countries. These restrictions are enforced to varying degrees allowing for adverse comments on the restricted themes but are known to be strictly, albeit arbitrarily, enforced whenever the State wants to. The mainstream media, including television, radio and print publications have often faced censorship while Pakistani cyberspace has often escaped any sustained censorship campaign although online space for free speech has discernibly been narrowing since the second half of the second decade of this millennium (i.e. since 2016) with the enactment of the Prevention of Electronic Crimes Act 2016.
The existing legal framework governing media in Pakistan was promulgated by President General Pervez Musharraf in 2002 and includes the Pakistan Electronic Media Regulatory Authority (PEMRA) Ordinance, 2002, along with the Press Council of Pakistan (PCP) Ordinance, 2002, the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, the Defamation Ordinance, 2002, and the Freedom of Information Ordinance
Evolving media regulatory framework – driven by reformative spirit
Prior to 2002, due to absence of legal framework for regulation/registration of private electronic media, the State had monopoly over the airwaves through state-run Pakistan Television (PTV) and Pakistan Broadcasting Corporation (PBC). The Pakistan Telecom Authority (PTA), which came into being in 1996 through the Pakistan Telecommunication (re-organization) Act 1996, started regulation of the broadcast distribution system, i.e., cable TV, even before the promulgation of PEMRA Ordinance. However, the function was later transferred to PEMRA in 2002. Before 2002, print media registration was governed through the West Pakistan Press and Publications Ordinance, 1963, which was repealed by the Press, Newspapers, News Agencies and Books Registration Ordinance in 2002 making it relatively easier to bring out newspapers.
After the Eighteenth Constitutional Amendment in 2010, which devolved a large number of subjects from the central government to Pakistan’s four provinces, including information and registration of newspapers, the Khyber Pakhtunkhwa government enacted the Khyber Pakhtunkhwa Press, Newspapers, News Agencies and Books Registration Act 2013. In 2016, the federal government enacted the Prevention of Electronic Crimes Act (PECA), which authorized the PTA to regulate / censor / ban online media and content even though the law is ostensibly aimed at preventing crime rather than free speech. Since its promulgation several journalists and free speech activists have been charged under this law.
Multiple regulators for the media sector
Pakistan has multiple laws to govern the print, electronic and online media. The PEMRA law regulates the private sector broadcast media – television, radio and cable. The PTA regulates the telecom services including fixed phones, cellphone and content in the online space. The country also has several laws for access to information. The federal government and three of the four provinces have enacted excellent second-generation right to information (RTI) laws after the Eighteenth Constitutional Amendment devolved this subject to the provinces. However, except in Punjab and Khyber Pakhtunkhwa provinces, the information commissions, formed under these laws, are either non-functional (in Sindh province) or struggling due to non-allocation of required funds and human resources (at federal level). The fourth province, Balochistan, is still living with the old first-generation freedom of information law, which was enacted in 2005.
The Press Council of Pakistan (PCP), through a fully functional organization administratively aimed at regulating the print media sector, has been struggling in getting its ‘due’ recognition among the stakeholders. The new government of Prime Minister Imran Khan elected after the July 2018 elections has prepared a document to introduce a new law, i.e., the Pakistan Media Regulatory Authority (PMRA). The aim of the proposed scheme is to merge PEMRA (broadcast sector regulator), PCP (print sector regulator) and PTA (online space and telecom regulator) into one mammoth regular of the entire media sector. However, the stakeholders have not received the proposal positively. The PCP has even strongly condemned the move in an official statement. Major political parties and most of the media sector, including Pakistan Broadcasters Association (PBA), All Pakistan Press Council (APNS), Pakistan Council of Newspaper editors (CPNE) and Pakistan Federal Union of Journalists (PFUJ) are opposing the move.
State permits for private media
PEMRA is mandated to issue licenses to private sector for broadcast media – TV, radio and cable. It has asserted a huge impact on the sector as it has the authority to penalize violators of the PEMRA law.
PTA is the telecom regulator and also controls allocation of frequencies, including those for TV and radio licensees. It has powers to control online content also and often bans websites and conducts elaborate censorship exercises. However, it has no role in registration of websites as there is no official website registry.
PCP deals with content-related complaints against the print media. However, it does not have any role in registration or licensing of newspapers. Due to its semi-official structure, the Council has been struggling in enforcing its statutory authority on print media in the country.
PEMRA regulates “the establishment and operation of all broadcast media and distribution services in Pakistan established for the purpose of international, national, provincial, district, local or special target audiences.” (Section 4 of the PEMRA Ordinance 2002). It has the authority to penalize violators of the PEMRA law. However, it does not have control over the allocation of frequencies for TV and radio. PTA through its Frequency Allocation Board (FAB) allocates frequencies and bands for broadcast media and telecom operators in Pakistan.
Composition of PEMRA: PEMRA is a statutory body with a 13-member board consisting of eight official members and four eminent citizens – all appointed by the federal government. The members of the Authority cannot be removed other than (i) end of their tenure of four years;(ii) misconduct; or (iii) physical or mental incapacity. They are also eligible for reappointment for another similar term. The PEMRA Ordinance says the ‘federal government’ is the appointing authority. However, the President has de jure authority to appoint members of the Authority although it is the Prime Minister who has de facto authority to take a decision.
Annual Budget of PEMRA: PEMRA has a statutory obligation (Section 17 of the PEMRA Ordinance) to publish ‘annual report’ on its operations and accounts for each financial year. Latest PEMRA Annual Report has appeared in the second week of February 2019, which provides accounts information only for 2017-18. Earlier in 2015, PEMRA produced its annual report covering period between 2010-2014. The PEMRA website is silent with reference to the information on its annual budget. Other than the Annual Reports, information on PEMRA’s annual budget is not available despite requests. The followings are the sources of funding for PEMRA (Section 14 of PEMRA Ordinance 2002)
· Seed money by the Federal Government;
· Fees for issuance and renewal of licenses for establishing and operating broadcast or CTV stations;
· Loans obtained with the special or general sanction of the federal government;
· Foreign aid obtained with sanction of and on such terms and conditions as may be approved by the federal government; and
· All other sums received by the Authority from any other source.
Section 10 of PEMRA law specifically bars members of the Authority to engage, during their terms in office, in any other service, business, vocation or employment; or enter into the employment of, or accept any advisory or consultancy relationship with any person or entity engaged in applying for a license from the Authority or operating a broadcast station established within the purview of the Authority or in providing services or products to the Authority on any of the projects, schemes, proposals or plans undertaken, executed or supervised by the Authority or any related undertaking of such aforesaid person or entity. The law also hinders members of the Authority from having any direct or indirect financial interest, or have any connection with any such person, entity or related undertaking, as mentioned above, associated in any way with the licensee of a broadcast station for so long as they are members and hold office.
The 13-member PEMRA Board is authorized to take decisions. However, the federal government can issue directives of binding nature on matters of policy (Section 5 of PEMRA Ordinance). One-third Board members constitute its quorum and the decisions are made by the majority of the members present in the meeting (Section 8). The law requires the Authority to make all orders, determinations and decision in writing but does not specifically require it to make all its decisions and determination public, except through the Annual Report. PEMRA has a statutory obligation to publish its ‘annual report’ on its operations and accounts for each financial year and present it to the President of Pakistan. The last PEMRA Annual Report appeared in 2014, which covered information from 2010-14.
According to the PEMRA Rules of 2009 (Rule#3) “the Authority shall not hold less than four meetings in a calendar year and may meet as often as it deems fit in order to dispose of its functions as provided for in the Ordinance.” The Rules require it to circulate the agenda and notice of the time, date and place of the meeting at least one week prior to the date of the meeting. Neither the statute requires the Authority to make this information including minutes of the meetings public nor such information is available on PEMRA website. In practice, the PEMRA issues a press release after the meeting without making minutes of the meeting public. The law, however, provides a detailed procedure for decision-making process particularly related to the licensing and requires application of principles of fairness and equity for all applicants. The eligibility criteria of the potential applicants are supposed to be determined in advance and licensing is to be done through “an open, transparent bidding process.” (Section 19 of the PEMRA Ordinance)
Impact of PEMRA decisions on media: PEMRA is often seen as and accused by its licensees of being overtly pushy on regulating media content rather than being a facilitator of the industry, a setter of professional standards or protector of media consumer rights. Over the course of 2016 to date, dozens of cases are in courts awaiting litigation against either bans on news programs, fining of news anchors or licensees. These punitive actions are either instigated by PEMRA itself or are the outcomes of judicial orders. PEMRA is an enormous establishment that had an annual budget of PKR 816 million in financial year 2017-18 (USD 7.7 million) and PKR 683.8 million (USD6.8 million) in 2016-17. According to latest PEMRA Report, the Authority is currently monitoring 50 TV channels, including 26 news channels 24/7.
The Press Council of Pakistan is mandated (Section 3 of the Press Council of Pakistan Ordinance 2002) to implement the [statutory] Ethical Code of Practice and (Section 8) received [and decide] complaints relating to newspapers, news agencies editors and journalists about the violation of Ethical Code of Practice.
Composition of PCP: The PCP is a statutory body with a 19-member board (Section 6), having representation of all media stakeholders. Except its chairman, all other members of the Council are nominated / appointed by the respective institutions. The Chairman can hold the office for two consecutive terms of three years each. (Section 7) The members can hold office for only one three-year term in office. Any member, including the Chairman, can be removed by the Government upon the passing of a resolution for his removal by two-third majority of the total strength of the Council on the grounds of misconduct, incapacity, and impropriety or moral turpitude.
Budget of PCP: The latest (allocated) budgetary information from PCP shows the following budget:
2018-19: PKR 48.8 million – USD 397,750
2017-18: PKR 52.6 million – USD 498,342
2016-17: PKR 40 million – USD 398,565
2015-16: PKR 33.5 million – USD 319.717
2014-15: PKR 30.5 million – USD 292,026
Section 4 of the Ordinance provides details of financial resources for the Council. These resources include:
· Grant-in-aid from the government for meeting the establishment, administrative and operating expenses of the Council;
· Grants and donations from within the country and overseas;
· Fees from registered newspapers and news agencies (although the law is silent on the fee amount).
Prior to 2010, there was one central law for newspapers registration i.e. The Press, Newspaper, News Agencies and Books Registration Ordinance, 2002. However, under that law, the authority for registration of the newspapers was devolved to the district governments i.e. sub-provincial level. After 2010, as a result of the 18th Constitutional Amendment, the provincial governments have been empowered to legislate for the registry of the newspapers. Nevertheless, except Khyber Pakhtunkhwa, no province has legislated on this issue so far.
The Press Council of Pakistan has no role in the registry of the newspapers. Neither it has have coordination mechanism to regulate the registration by the federal / provincial / district level registration process. However, sub section (6) of Section 6 of the Press, Newspaper, News Agencies and Books Registration Ordinance, 2002, it is required that “declaration submitted by the publisher under sub-section (5) shall be accompanied by an undertaking by the editor to abide by the Ethical Code of Practice contained in the Schedule to the Press Council of Pakistan Ordinance, 2002.
PCP is a unique regulator that has representation of all media stakeholders. The board of the PCP includes nominees of professional bodies of journalists (Pakistan Federal Union of Journalists, PFUJ); and newspaper owners (All Pakistan Newspapers Society, APNS) and editors (Council of Pakistan Newspaper Editors, CPNE).
According to the PCP Ordinance, the Council is the key decision-making body. Section 17 says nine members of the Council shall constitute quorum for the meeting. The law requires the Council to meet at such times and places as may be provided by regulations made under this Ordinance. However, no such regulations have been formulated so far. PCP website does not show any minutes of the meetings of the Council. In practice, the Council issues a press statement after the meeting without making minutes of the meeting public. However, the Council’s official told that the minutes can be accessed through an RTI request. Section 20 of the PCP Ordinance 2002 requires the Council to prepare and publish its Annual Report providing: (i) summary of its activities during the previous year; (ii) account of the standards of newspapers and news agencies and factors affecting them; and (iii) the statement of [PCP’s] audited accounts. The law requires the PCP to present its Annual Report the Prime Minister of Pakistan.
Impact of PCP decisions on media: PCP is mainly a complaint redressal mechanism and has nothing to do with the registration of the newspapers. The proceedings of the Council are supposed to be open but often meetings are held without any notice to the public. The impact of PCP hasn’t been forceful or wide. Due to a severe lack of resources to monitor and scrutinize hundreds of newspapers across the country for violations of Code of Ethics, its ability to fulfil its stated functions is limited and, therefore, not too impactful.
Pakistan Telecommunications Authority (PTA) is primarily a telecom regulator. However, by virtue of its control over the licensing of Internet Service Providers (ISPs) in the country, it has influence over the internet space as well. Additionally, the Prevention of Electronic Crimes Act (PECA), 2016, has authorized the PTA to remove or block online content from any website or social media platform (Section 37). Besides, the Federal Investigation Agencies (FIA) has been empowered to investigate into the complaints of ‘cybercrimes’ as well as allegedly ‘objectionable content’ on social media (PECA 2016).
Composition of PTA: The PTA is a three-member body, appointed by the federal government for a term of four years and can be reappointed for an additional similar tenure. A member of the Authority can be removed due to mental or physical disability or misconduct including corruption and dishonesty after inquiry by the Federal Public Service Commission. The members of the Authority are appointed on the basis of their technical expertise. The governing law (PTA Act Section 3) specifically bars the members to “have any direct or indirect financial interest in, or have business connection with any person, any establishment or firm which renders telecommunication services in Pakistan or abroad or supplies telecommunication equipment to any telecommunication sector in Pakistan or abroad.”
The governing law is silent with reference to the transparency of the decision-making process of the Authority but it requires the PTA to “maintain a register of licenses, showing applications for licenses received, enforcement orders relating to licenses issued and details of license revoked. According to PTA Act 1996, three-member body is authorized to take decisions; however, the Federal Government may issue policy directives of binding nature to the Authority on policy matters (Section 08). The decisions of the Authority are required to be taken with the concurrence of majority of its members. PTA has shared its annual reports – from 2009 to 2018 - on its website. The annual reports carry details of all its affairs, including action taken for protection of consumers’ interests, for that year (Section 18). PTA website contains all its determinations and decisions. However, details of meetings of the Authority such as minutes of the meetings are neither given in the annual reports nor on the website. The PTA presents its annual report to the Federal Government.
Budget of PTA: The following annual budgetary information of the PTA is extracted from the Annual Reports of the PTA. These reports are available on PTA website.
2016-17: PKR 47.7 billion – USD 476.1 million
2015-16: PKR 42.2 billion – USD 403 million
2014-15: PKR 15.4 billion – USD 147.9 million
2013-14: PKR 10.6 billion – USD 96.1 million
The sources of funding of the Authority include fee from the licensees and grants from the Government, both Federal and provincial.
Impact of PTA decisions on media: PTA has blocked over 800,000 websites and web pages that had ‘inappropriate and objectionable’ content. Since 2009, according to google transparency report, government of Pakistan has submitted 292 requests to google for removal of 3,478 items from google.com. Similarly, google has received more than 100 requests about user info from government of Pakistan during past three years. During Jan-June 2018, according to Facebook Transparency Report, Facebook has put restriction on about 2,000 content items on the request of the PTA. Similarly, the PTA / government has sent 1,609 requests to Facebook for information on users / accounts during the same period. The government / PTA has sent 243 requests for content removal concerning 3,004 accounts and 22 requests for users’ info relating to 54 accounts during Jan-June 2018.