Examination of the Media Ethics and Regulations in Pakistan

EXAMINATION OF THE MEDIA ETHICS EXAMINATION OF THE MEDIA ETHICS AND REGULATIONS IN PAKISTAN1 By Jawad Hassan, Additional Advocate-General, Punjab, Supreme Court of Pakistan2. "The ethics and legal framework of the media requires fairness and objectivity; it requires that journalists conduct due diligence before reporting any news so that rumours and insinuations are filtered out" Justice Jawwad S. Khawaja3., Judge, Supreme Court of Pakistan There has been a very weak enforcement of electronic and print media laws, regulations, codes, policies and ethics by the Government of Pakistan and regulatory authorities, including Pakistan Electronic Media Regulatory Authority (PEMRA) and Press Council of Pakistan. Therefore, the Supreme Court of Pakistan recently adjudicated upon various important cases on media regulations in the context of fundamental rights guaranteed by Articles 19 and 19A of the Constitution such as Hamid Mir's case (Constitution Petition No.105/12), Independent Media Corporation's case (Constitution Petition No.53/12) and Sh. Ahsan ud Din's case (Constitution Petition No. 117/12). This paper will first highlight the fundamental right to speech and free press and the right to the information guaranteed by the Constitution to every citizen in Pakistan, and how they are protected and practiced. Then it will highlight the special laws on electronic media including its Rules, Content Regulations and Code of ethics. Thereafter, this paper will examine the role of Pakistan Electronic Media Regulatory Authority (PEMRA) which has been established under PEMRA Ordinance, 2002 to facilitate and regulate private electronic media, which has the mandate to improve the standards of information, education and entertainment and to enlarge the choice available to the people of Pakistan including news, current affairs, religious knowledge, art, culture as well as science and technology. Pakistan is one such country that has undergone a huge transition from state controlled monopoly broadcasting system to multi-channel, largely commercially driven, media environment. This was not the case a few years back. Back then media abandoned its dual function of being a watchdog of government and informing the public and so citizens remained uninformed and democracy was crippled.4. Just like electronic media, print media was also controlled. Various ways were used to exert influence on the content of newspapers including removal of government advertisements and control of news print and sanctions were imposed on every newspaper that went against the government. Article 19 of the Constitution of Pakistan, 1973 (the "Constitution") provides that every citizen shall have the right to freedom of speech and expression, and there shall be freedom of press subject to any reasonable restrictions imposed by law. Hence, the PEMRA and other relevant authorities impose certain restrictions through Act/Ordinances, Rules, Regulations and Code of Conduct highlighting media ethics. "Freedom of expression" was a concept that was talked about but nothing was done to achieve it in true sense. But today things have changed completely. Last decade saw the liberalization of media in Pakistan. The President of Pakistan promulgated the following laws for the electronic media, Pakistan Electronic Media Regulatory Authority Ordinance, 2002 along with its Pakistan Electronic Media Regulatory Authority Rules, 2009 (amended 2002) and various Regulations including Pakistan Electronic Media Regulatory Authority (Council of Complaints, Organization and Functions) Rules, 2010. To encourage the publishing of more newspapers, books and tabloids, the President passed Press, Newspapers, News Agencies and Books Registration Ordinance, 2002 and in order to protect the rights of a journalists, the Press Council of Pakistan Ordinance, 2002, Associated Press of Pakistan Corporation Ordinance, 2002 and Defamation Ordinance, 2002 were passed. In order to give us access to public knowledge, the President promulgated the Freedom of Information Ordinance, 2002, Freedom of Information Rules, 2004 and the Electronic Transactions Ordinance, 2002 but after the 18th amendment in the Constitution, fundamental right to information i.e. Article 19A was introduced which states that every citizen shall have the right to have access to information in all matters of public importance. In the case of Dr. Shahid Masood v. Federation of Pakistan, 2010 SCMR 1849 the Chief Justice of Pakistan held that weight attached to electronic media stems out of the fundamental rights of freedom of speech, expression and of press as guaranteed by Art. 19 of the Constitution, equally important, if not more, the right of every citizen to have access to information in all matters of public importance as guaranteed by provisions of Art.19A of the Constitution. Recently, in the case of Wattan Party v. Federation of Pakistan, PLD 2012 SC 292 the Supreme Court held that Article 184(3) read in conjunction with Art.19A of the Constitution has empowered the citizens of Pakistan by making access to information a justiciable right of the people rather than being largesse bestowed by the State at its whim. Hence, Article 19A of the Constitution has enabled every citizen to become independent of power centers which heretofore, were in control of information on matters of public importance. The Supreme Court in the case of President Baluchistan High Court v. Federation of Pakistan, 2012 SCMR 1950 held that for enforcing Fundamental Rights guaranteed under the Constitution, it was the duty of all citizens, including political workers, members of the civil society and media personnel to make their positive contribution, so that the life, liberty, property and dignity of the citizens were protected and secured as per mandate of the Constitution. However, the media ethics were recently made law in the newly passed Pakistan Electronic Media Regulatory Authority (Content) Regulations, 2012 vide Notification No. S.R.O.1265(I)2012, dated 25th September, 2012 in which the PEMRA, being the competent authority and enjoying a statutory mandate for framing content regulations and a code of conduct for the media and effective enforcement thereof, passed Regulation 5 on Ethical and Social Values which states that licensee shall show deference to the ethical and social values of the country and ensure that (a) any content that maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country is not broadcast or distributed; (b) content does not make careless references to any class or group of persons as being inherently inferior or in any way discriminate against any section of the community on account of religion, gender, age, disability or occupational status; (c) content is not obscene or indecent; Explanation: For the purposes of these regulations content shall be deemed to be obscene if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it; (d) offensive or derogatory jokes, words, gestures, dialogues and subtitles are not broadcast or distributed; (e) behaviour such as smoking and drug abuse is not presented as glamorous or desirable; (f) alcoholic beverages, tobacco products or any other narcotics shall not be shown; (g) content does not contain anything that denigrates men or women through the depiction in any manner of the figure, in such a way as to have the effect of being indecent or derogatory; (h) content does not contain any abusive comment; (i) content does not contain anything that, when taken in context, tends to or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of race or caste, national, ethnic or linguistic origin, colour or religion or sect, sex, sexual orientation, age or mental or physical disability and (j) no content is aired that is offensive, indecent, vulgar or defamatory. These media Ethical and Social Values are similar to the PEMRA Code of Conduct for Media Broadcasters or Cable TV Operators made under Rules 2 and 15 of the PEMRA Rules, 2009 (Schedule A) read with Section 20 of the PEMRA Ordinance, 2002 which provides for the Terms and Conditions of a licence and when the licence is issued under Section 19, it puts a condition that every licence shall be subject to the terms and conditions and the Authority shall devise a Code of Conduct for compliance by the licensee. The role of PEMRA has been examined by the Supreme Court of Pakistan in the case of Dr. Shahid Masood v. Federation of Pakistan, 2010 SCMR 1849 in which the Court examined that Pakistan Electronic Media Regulatory Authority (PEMRA) was created under the PEMRA Ordinance of 2002, which was promulgated inter alia, to enlarge the choice available to the people of Pakistan in the media vis-a-vis news, current affairs and other informative, educational and entertainment programmes; to facilitate the devolution of responsibilities and powers to the grass-roots by improving the access of the people to mass media at the local level and to ensure ACCOUNTABILITY, TRANSPARENCY and GOOD GOVERNANCE by optimizing the free flow of information. However, PEMRA comprising of 12 Members, to be appointed by the President, with the Chairman as its head was set up to REGULATE the establishment and operation of all broadcast media and distribution services in Pakistan. According to section 19 of PEMRA Ordinance, 2002 no person could engage in any broadcast media or distribution service except after obtaining a licence issued under the said Ordinance and the PEMRA was given the exclusive right to issue licences for the establishment and operation of all broadcast media and distribution services. As per provisions of section 27 of the said Ordinance it is only the PEMRA and that also through an order in writing, giving reasons thereof, which could prohibit any broadcast or distribution of any programme or news-item etc., if it was of the opinion that such a programme was likely, inter alia, to create hatred amongst the people or was pre-judicial to the maintenance of law and order or was likely to disturb public peace and tranquillity. Section 28 of the said Ordinance commanded a broadcast media or a distribution service operator not to cease or suspend broadcasting except on account of force-majeure or with the prior approval of the Authority. Section 30 empowered the PEMRA to suspend or even to revoke any licence granted by it if the licensee contravened any of the provisions of the said Ordinance of 2002; any rules or regulations or the conditions of the licence. The violation or the abetment of any violation of the provisions of the said Ordinance of 2002 was made punishable under section 33 of the Ordinance which punishment could extend to imprisonment for upto three years or a fine which may extend to 10 million rupees or both. Sections 34 and 34-A of the said Ordinance, declare the said offences to be cognizable. Recently the Supreme Court of Pakistan in the case of Hamid Mir v. Federation of Pakistan (PLD 2013 SC 244) passed a detailed order after hearing all the parties on the examination of media ethics and law. Mr. Justice Jawwad S Khawaja passed the following order: "8. Be that as it may, as stated earlier in this order, the Court is of the view that some of the issues raised in these petitions require gathering, collation and perusal of extensive material as well as technical expertise in the area of media regulation. To examine these issues, the Court deems it appropriate to appoint a Commission, ... 9. The parties were asked to suggest possible names for the Commission and propose Terms of Reference (ToRs) for it. Different names were suggested by the parties. However, after considering these, the names of Justice (R) Nasir Aslam Zahid and Mr. Javed Jabbar were unanimously agreed upon to constitute the Commission. We, therefore, appoint Justice (R) Nasir Aslam Zahid and Mr. Javed Jabbar as a two-Member Commission which shall be headed by Justice (R) Nasir Aslam Zahid. The worthy members of the Commission have consented to act as a Commission. The ToRs of the Commission are as under:- A. To consider the role of the Ministry of Information and Broadcasting and other Government agencies in ensuring freedom of print and electronic media and whether or not there is information and material brought before the Commission to justify the continued functioning of the Ministry, consistent with Article 19 of the Constitution. B. To analyze whether and to what extent PEMRA has been able to fulfil its developmental mandate and regulatory functions independently under the PEMRA Ordinance. C. To determine if it advances or is consistent with the fundamental right under Article 19 ibid to allow the Government or its instrumentalities to be major players in the media through State Television and Radio broadcasters. D. To ascertain if PTV, PBC and APP, the recipients of public funding of billions of rupees, have independent in-house management and transparent policies in place which advance the objectives of fairness and evenhandedness expected of publicly funded entities and to determine if there are adequate checks against lop-sided or biased dissemination of information by these publicly funded entities. E. To consider the feasibility of letting the media adopt a self-regulatory code of conduct instead of content regulation, in the light of international standards and best practices. F. To enquire into allegations of media-related corruption and suggest steps to ensure impartial and independent media for the upcoming elections. G. To inquire whether, when giving money to different media houses directly for or on the pretext of advertisement, were the government or its functionaries pursuing a transparent, duly approved, bona fide government advertisement allocation policy or were the decisions to buy advertisement space with public money made arbitrarily or without objective criteria or to favour particular channels, journalists or media houses. H. To propose a single, transparent, objective, non-discriminatory policy for allocation of government advertisements among electronic and print media. I. Whether the Federal and Provincial Governments, autonomous and semi autonomous bodies, Government corporations or agencies adhere to PPRA rules or other transparent processes while granting advertisement contracts to advertising agencies or media houses. If not, then to suggest processes which are fair and transparent and which ensure the greatest value and fairest dissemination of information."