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DAWN - Opinion; June 14, 2007

June 14, 2007


What remains of Pemra law?

By I.A. Rehman

THE decision to withdraw the Pemra (Amendment) Ordinance of June 4 last can only be welcomed. The satisfactory turn of events is surely the result of the media community’s unity and steadfastness and the support it received from civil society at home and abroad.

It should now be possible to take a critical look at the law as it stood before the ill-timed and ill-fated amendment because its scrutiny during the recent agitation brought to light quite a few of its aspects that are violative of the right to freedom of expression.

The Pemra Ordinance in its original form was a bad law to start with, because it created a mechanism to control the electronic media in contravention of the objectives given in the Ordinance itself. These objectives were: to “improve the standards of information, education and entertainment”, to “enlarge the choice available to the people in the media for news, current affairs….music, sports, drama and other subjects of public and national interest”; to “facilitate the devolution of responsibility and power to the grass-roots by improving the access of the people to mass media at the local and community level”, and to “ensure accountability, transparency and good governance by optimising the free flow of information.”

The people have a right to ask the Pemra as to what it has done to realise its mission and whether, instead of optimising the free flow of information, it has been trying to restrict the flow of information.

That the Electronic Media Regulatory Authority created under the ordinance was wholly under the federal government’s control is borne out by the following:

The federal government’s directives on a matter of policy were binding on the Authority. What constituted a matter of policy was to be decided by the federal government (Sec 5). The Authority comprised a chairman and nine members, all appointed by the president. Out of the nine members, five had to be “eminent” citizens (Sec 6). The licensee was bound to broadcast programmes (in public interest) specified by the government or the Authority and comply with the rules and codes made by the Authority with the government approval (Sec 20).

The Authority was given the power to prohibit a broadcast/ distribution of programmes and the premises of a broadcaster/operator could be inspected “after giving reasonable notice.” The Authority could revoke or suspend a licence if (a) the licensee had not paid fee and charges; (b) a committee appointed by the government, headed by a retired HC or SC judge (and a nominee each of the Authority and licensee) expressed opinion that the licensee had violated the Ordinance/rules; (c) licensee had failed to comply with licence conditions; (d) If the broadcast company’s ownership changed. However, a show cause notice (reasonable) was necessary except for reason of necessity in public interest. (Sec 30).

The penalties were: (1) For any violation of the ordinance, fine up to Rs. one million; (2) second violation, a three-year imprisonment or fine or both; (3) violation by a person who is not a licensee, a four-year imprisonment or fine or both.

The ordinance overrode other laws. (Sec 37), a feature not allowed in case of the Freedom of Information Ordinance, despite media community’s clamour.

Changes made by Act II of 2007: In 2004 the government decided to put more teeth in the ordinance. The relevant bill got stuck in Parliament but eventually it became the Pemra Act of 2007 (II of 2007) and was gazetted on April 14, 2007. A simple reading of this Act leads one to the conclusion that Parliament failed to show due respect for the right to freedom of expression and gave Pemra sweeping powers that could easily be abused.

Several amendments brought substantial changes in the law, and quite a few of them of a sinister nature. The number of members of the Authority (besides the chairman) was raised from nine to 12. As earlier, the number of ‘eminent citizens’ remained five and two members were to be appointed by the federal government on need basis on the recommendation of the chairman. The remaining five members were to be government officials/nominees. The composition of the Authority was thus radically changed. The five non-officials, who earlier on faced an equal number of officials, now faced seven officials. The pretence that the Authority could be an autonomous body was given up.

The section on delegation of power by the Authority (Sec 13) had a proviso in 2002 text: “Provided further that the rules made under this ordinance shall specify use of delegated powers and shall be framed and enforced after promulgation of this Ordinance and before the notification of the establishment of the Authority.” Under the Act of 2007 this proviso was dropped. This meant rules regarding delegation could be made at any time, even after the Authority had been established.

The gates of arbitrariness were thrown wide open. Further, previously the delegation of power did not include “the power to grant, suspend, reverse or cancel a broadcast licence.” Now the word ‘suspend’ was deleted and cable TV was excluded from protection. Obviously, it was made possible for a delegatee of power to suspend a TV channel licence and cancel a cable operator’s licence.

Amendments to Section 19 gave the Authority unfettered power to fix the number of licences to be issued in each category. This means that parties seeking licence after the limit for licences in a category has been reached cannot be entertained. This is not only contrary to the holy principle of market competition but also appears to be violative of fundamental rights.

The conditions of licence were expanded (Sec 20). Earlier, a broadcaster was required to ‘respect’ national, cultural and religious values and the principles of public policy, now the order was to ‘ensure preservation of’ the values already mentioned. The condition is quite ridiculous and it is impossible to comply with it.

Earlier, the federal government could establish only one Council of Complaints, now it was bound to establish councils of complaints at Islamabad, at provincial capitals and at any other place. All councils were given power to summon a licensee in the course of hearing a complaint against him. This could mean relief to broadcasters from travelling to Islamabad in each case, and it could also imply a Karachi-based broadcaster’s obligation to travel to FATA or Gilgit if a council were set up there.

The replacement of Sec 27 increased the grounds on which a broadcast could be prohibited. In addition to the standard jargon on integrity, security and decency, a programme could also be prohibited for “engaging in any practice or act which amounts to abuse of media power by way of harming the legitimate interests of another licencee or wilfully causing damage to any other person.” This was much too broad a power.

A new provision (Sec 29) empowered the Authority as well as its chairman to seize a broadcaster’s equipment and seal the premises for contravening “this Ordinance or the rules made thereunder or any other law.” Equipment could be returned to the holder of a valid licence after payment of penalty determined by the Authority. A licensee could be fined up to Rs one million. The new provisions encouraged abuse of power. Suppose a broadcaster attracted the defamation law, the Authority could supplant the courts of law and punish the accused.

Substantial changes were also made in Sec 30 (Power to suspend/revoke a licence). Earlier, a licence could be suspended/revoked for failure to pay fee/charges for failing to comply with conditions of licence, if a broadcast company’s ownership changed, or if a committee headed by a retired judge gave an opinion against a licensee.

The Act of 2007 replaced reference to the committee of inquiry with the Council of complaints and gave the Authority blanket power to vary the terms of a licence “where such variation is in public interest.” Although a new Section (30 A) gave the right to appeal to the High Court, the granting of sweeping power and possibility of their abuse cannot be denied.

The fine for the first offence was raised from one to ten million rupees. Violation by a non-licensee could be punished with confiscation of equipment in addition to imprisonment or/and fine. A new sub-section was added to provide for punishment of anyone who damaged or stole a licensee’s equipment.

The Act of 2007 had made the Pemra ordinance as draconian as can be but obviously the establishment’s lust for arbitrary and absolute power was not satiated. Only 50 days after the Act II of 2007 was gazetted, it promulgated an ordinance to further amend the 2002 ordinance.

What the new ordinance did was:

Sec 29 was amended to give power to the Authority as well as its chairman to seize a broadcaster’s equipment and seal his premises without a show cause notice for illegal operation or violating orders passed under Sec 30. The amount of fine under this section was raised from one to ten million rupees.

Vide a new sub-section added to Sec 30 a licence could be suspended by “a duly constituted committee comprising members of the Authority.” What this meant was that a committee of any two official members or any two officials and one ‘eminent’ citizen could suspend a licence. Further, the proviso to Sec 30 was amended to drop the provision for revoking a licence on the opinion of the Council of Complaints, and the condition of a show cause notice before suspension of a licence was dropped.

Perhaps one of the most pernicious changes in the Pemra law made by the latest ordinance was the insertion of a Sec 39-A which gave the Authority powers to make regulations in addition to rules. While the rules had to be made by the Authority subject to government approval, no such approval was needed for regulations that might be made at any time. Any violation of regulations was as serious an offence as a violation of the ordinance and the rules.

Even after the ordinance of June 4 has been withdrawn, it will be necessary to review the Pemra law, to purge it of provisions that are likely to be abused.

It may be noted that in most of the recent cases when broadcasts by some of the TV channels were blocked/suspended for hours and days, it was not considered necessary to invoke the Pemra law. The reason is, first, that formal orders of Pemra can be challenged and, secondly, the powers available to the regulating authority are so awesome that a mere threat of their use can be sufficient to achieve the desired result.

Why Nato is losing the war

By Leo Docherty

LAST year in Afghanistan, while serving with the British army, I sat on the rooftop of our patrol base in the middle of Sangin, a small town in Helmand province. Surveying the skyline of flat-roofed mud homes and barren hills, I took stock of the situation.

We had seized and occupied Sangin a few days previously, wresting control of the town from the Taliban. During our advance an 11-year-old boy was killed in the crossfire, shot in the head accidentally by our allies, the Afghan national army. Despite this we established our base in a local government building, the district centre, and patrolled the bazaar every day. We bought mangos and chatted to the locals – who seemed ambivalent about our presence.

Just below the surface, however, tension simmered. The boy's death made us a threat to the local population. Despite promising development we had nothing to show for all our big talk. Crucially we had no real answers to questions about the future of the all-important poppy, the basis of Sangin's economy. To the locals, we were clumsy, interfering foreigners, whose arrival presaged conflict and the destruction of their livelihood. Days later Sangin exploded into violence, seeing some of the fiercest fighting by British troops since the Korean war, and which continues as I write.

Sadly, many more civilians across Afghanistan have met the same end as the 11-year-old. Recently in Sangin an estimated 21 civilians were killed by bombs dropped from Nato planes after US and British soldiers were ambushed. In the eastern city of Jalalabad in March, US soldiers shot dead 19 civilians in the aftermath of a bomb attack. And on Tuesday seven policemen were killed by "friendly fire" in an air strike in the eastern province of Nangarhar.

The Jalalabad shootings may yet be deemed a war crime, but civilian deaths are normally tragic accidents. Often outnumbered and outgunned by militia men, the immediate response of Nato troops is to call on overwhelming firepower delivered by artillery, helicopter gunships and jets. The troops aren't wicked, they're just keen on staying alive. But these weapons are blunt-edged and indiscriminate. The price of overwhelming firepower is the death of nearby civilians.

But accidental or not, civilian deaths catastrophically undermine the entire Nato effort, as relatives of the dead, bent on vengeance, flock to the Taliban cause. As Pashtuns, the inhabitants of Helmand hold Badal, the pursuit of revenge, as a central concept of their social code, which is devotedly adhered to. "A Pashtun waited a hundred years for revenge," a local saying goes, "and was pleased with such quick work." Indeed, the Taliban are ruthlessly exploiting this mindset by deliberately engaging Nato troops from villages. But it was never supposed to be like this. On my arrival in Afghanistan, I was optimistic about being involved in a reconstructive, nation-building endeavour. Our strategy, the Comprehensive Approach, was supposed to provide security, development and governance. The UK army was to guard a secure "inkspot" around Lashkar Gah (Helmand's capital), inside which the Foreign Office and international development department DfID could establish an alternative to opium production and initiate development to improve the lives of ordinary Afghan people, some of the world's poorest. Afghan hearts and minds would be won over, leaving opium traffickers and the last remnants of the Taliban marginalised.

But the Comprehensive Approach was never given a chance. Our occupation of Sangin and other towns across the north of Helmand was a wild digression away from the "inkspot", motivated by haste and beset by ignorance. We acted as the army alone, purely as a military force, without the crucial hearts and minds-winning capabilities DfID and the Foreign Office should have provided. Far from improving Afghan lives, we have committed a terrible military blunder.

Afghans are sick of foreign armies killing their people. Their president, Hamid Karzai, has publicly criticised Nato's methods and warned that "bad consequences" will follow if civilian deaths continue unchecked. The Afghan parliament has called for a halt to Nato military offensives, and for negotiations with Afghan members of the Taliban. In Kabul last month, I met displaced civilians from Helmand province, some of the 80,000 to 115,000 people the UN estimates have lost their homes in the fighting in southern Afghanistan. "Why do British planes kill our people?" they said. I struggled to answer.

The British command in Helmand should heed the president's warning. The Taliban now control 50 per cent of Helmand province. Development is happening nowhere, and opium production has reached record levels. Unless we immediately de-escalate the level of violence and prevent further civilian deaths, all of Helmand will be lost.

In Sangin today the district centre is a battle-scarred fortified position where more than a dozen British troops have been killed fighting from trenches. Soldiers no longer sit on the roof to enjoy the view. The town lies in ruins, with little trace left of the once thriving bazaar. A peaceful, developed Helmand cannot be won by the sword, and the longer we try, the greater the tragedy. —Dawn/Guardian Service

The writer served with the British Army in Iraq and Afghanistan. He is the author of “Desert of Death: A Soldier's Journey from Iraq to Afghanistan.”

America’s hegemonic designs

By Ghayoor Ahmed

THE United States has always gone out of its way to emphasise that it loves world peace and that it has been assiduously striving towards this end. However, this claim does not stand up to scrutiny. In its misguided pursuit of supremacy, the US has conducted more than 160 wars and other military adventures.

America’s desire for political and military hegemony, its obsessive drive for control of oil and expansion of military bases around the world and meddling in other countries’ internal affairs indicate that acquisitiveness rather than national security interests is the key feature of its foreign policy. In other words, the sole aim of US foreign policy is attainment of economic aggrandisement.

The US desire for political and military hegemony is incompatible with international law and the UN charter that guarantee the sovereignty of all states regardless of their size, political, military and economic strength. It is true that the US has reached the zenith of power and is capable of bending other nations to its will.

However, it must also realise that the strength of powerful nations never remains constant owing to global competition and the shifting of global political, military and economic balances. Only a leader with political acumen and a sense of history can understand this. Such a leader will always desist from harbouring imperialist ambitions.

There is no reason to doubt that the US invasion of Afghanistan, in the wake of 9/11, was motivated by self-interest and not to end terrorism there as was its stated objective. There is convincing evidence that the oil reserves in the Caspian sea area were an important motivational factor to gain control of Afghanistan.

It may be mentioned that a few days before September 11 the US Energy Information Administration documented Afghanistan’s strategic geographical position as a potential transit route for oil and natural gas exports from Central Asia to the Arabian sea. It is also important to note that as a result of its occupation of Afghanistan, the US now has new military bases in Central Asia.

Soon after its occupation of Afghanistan, the US also invaded Iraq. It contended that Iraq had weapons of mass destruction notwithstanding the fact that UN inspectors had found no evidence to this effect. The US case was so unconvincing that the UN Security Council, normally supportive of US policy, did not give its approval to invade Iraq. Public opinion, all over the world, was also overwhelmingly opposed to the US attack on Iraq and held big protest rallies in different countries against it. The Bush administration’s claim that Iraq was a threat to world peace apparently did not carry conviction.

It is clear that US policy on Iraq, camouflaged in the rhetoric of lofty ideals, was not motivated by concern for weapons of mass destruction or liberating the people of that country from a tyrannical ruler. Iraq’s oil reserves are second only to those of Saudi Arabia. By occupying Iraq, the US could establish a secure alternative to Saudi oil which, it is believed, is depleting. Moreover, Iraq is also strategically located and by establishing a strong presence in that country the United States also aimed to expand its sphere of influence in the region.

The people of Iraq who had initially greeted the US forces as liberators have put up a strong resistance against their continued presence in their country. But the US is not willing to withdraw its forces from Iraq without attaining its geopolitical and economic interests there.

If it does so after suffering heavy losses, it feels irreparable damage will be inflicted on its standing in the world. Irrefutable evidence is also available to the effect that, contrary to the US public being in favour of the territorial integrity of Iraq, Washington is actually fanning the flames of religious and ethnic differences only to prolong its stay in that country to promote its objectives.

The US, as well as other nations bent upon dominating other countries, must learn a lesson from contemporary international realpolitik and refrain from using military might against other states. The use of force by a military giant against a weaker nation cannot prevent its people from struggling for their complete independence from foreign domination irrespective of the price they may have to pay to attain it.

Bush’s plan for political reform in the Middle East was a strategic move aimed at installing more friendly regimes there with a view to achieving his country’s long-term imperialistic designs in the region through peaceful means instead of invoking the doctrine of preemption that has proved disastrous in Iraq. It may be mentioned that the Arab countries, particularly Saudi Arabia, have rejected the imposition of reform from outside the Arab world.

Some political observers believe that the fundamental premise of US policy on Iran is also the same. It has, therefore, deliberately adopted an aggressive posture towards its nuclear programme although there is little to suggest that Iran plans to make nuclear weapons. There could also be no room for doubting Iran’s motives after its unequivocal commitment that its nuclear programme is exclusively for peaceful purposes and is in conformity with the safety regulations of the IAEA.

The former commander of the US Central Command, General John Abizaid, recently said that even with the continuing wars in Afghanistan and Iraq, the biggest threat in the global war on terrorism is posed by extremists in Pakistan and Saudi Arabia. However, he tends to ignore that America’s increasingly partisan involvement with Israel and its occupation of Afghanistan and Iraq have given rise to militancy in a number of Muslim countries.

Unless the Americans accept this unpalatable truth and set about addressing the underlying issues that cause resentment towards them, they cannot win the war against terrorism, despite possessing unrivalled resources and military might.

It is now established beyond a shadow of doubt that the US States intends to use its unrivalled military power to manage the global order consistent with its national interests and also to assert its status as a unipolar power without any competitor. However, its lust for world domination and its resources pose a serious threat to the international community.

There is global opposition to Washington’s desire to impose its hegemony over the rest of the world. In the coming days, the US may face resistance to its imperialistic designs, particularly from other world powers, that are equally keen on asserting themselves to promote their own national interests.

The writer is a former ambassador.

Reinventing Kyoto

AS President Bush sat across the table last week from European leaders steamed about his approach to global warming, he could at least bask in the knowledge that even though the compromise he engineered isn't exactly the right thing to do, it's less wrong than usual.

Bush, the former Texas oilman who is as beloved by environmentalists as Nero was by Christians, has been under pressure from a Democratic Congress and fellow world leaders in the Group of 8 to change course on climate change. And he did, sort of. The final communique from the G8 summit in Germany commits the US to "seriously consider" cutting its greenhouse gas emissions in half by 2050 and to work with the UN to come up with a successor to the Kyoto Protocol, the international treaty on climate change that the Senate refused to ratify in 1998. That's not the deal for mandatory cuts the Europeans were seeking, but it's further than Bush has been willing to go before.

Bush is correct about one thing: Kyoto is a mess. The president has rightly forced other world leaders to address one of the major flaws of the pact, which is that it doesn't apply to emerging economic giants such as China and India. Yet he also seems to think that these developing countries should be held to the same standards as the US, and is unwilling to do anything unless China does the same. That's unrealistic and unfair.

A better approach would be to fix what's really wrong with Kyoto.

The Kyoto Protocol's main mechanism for saving the world is a cap-and-trade system. Individual countries or confederations set caps on emissions of greenhouse gases based on where they were in 1990 — in the European Union, it's 8% below 1990 levels — and pass out credits to power plants and industrial polluters, dictating how many tons they can emit. Polluters that fall below their allocations can sell their "carbon credits" to those that can't reduce emissions as easily.

A carbon-trading market for these credits has emerged in Europe, but the scheme so far has done nothing to reduce emissions because, thanks to the power of the energy lobby, the initial credit allocations were set too high. But that barely touches the surface of Kyoto's problems.

The choice of 1990 as a base year simply rewards countries whose economies have shrunk since then and punishes growth. Russia, Eastern Europe, Germany and Britain are strong backers of Kyoto, and if one looks at the costs and benefits of the pact, it's no wonder. Today, these countries emit either less than they did in 1990 or just a little bit more. In Britain, that's because the privatisation of the coal industry led to a decline in coal-fired power plants in favour of natural gas; elsewhere, it's because the collapse of the Soviet Union was followed by the closing of filthy Soviet-era industrial plants, while economies in Russia and much of Eastern Europe stagnated.

The US economy, meanwhile, has grown significantly since 1990, with a corresponding rise in power demand that, according to the Energy Information Administration, has caused carbon dioxide emissions to jump 20.4%. What a global carbon-trading scheme boils down to, then, is a massive wealth transfer from the US to Russia. US polluters would pay billions of dollars to buy carbon credits from other countries — mostly Russia, because it would have the most to sell. Why should we inject huge sums into a country with a rotten human rights record, rampant corruption and opposing geopolitical views? And what did Russia do to earn the cash, other than shrink?

Further, because there is no world body that polices greenhouse gas emissions, countries and polluters are on the honor system — we have to trust them to be honest about how much they're polluting. Governments in Russia or Ukraine aren't capable of monitoring emissions from every pollution source even if they wanted to, and under Kyoto, there's no reason for them to want to. After all, if Ukraine claims to be cleaner than it really is, rich countries such as the US and Japan will shower it with money for carbon credits. And corrupt governments will tend to distribute credits unfairly, using them to reward political supporters and reducing the market's effectiveness.

––Los Angeles Times

© DAWN Group of Newspapers, 2007