KARACHI: The Sindh High Court (SHC) held on Friday that the power to suspend broadcast media licences (BMLs) contained in Section 30 of the Pakistan Electronic Media Regulatory Authority (Pemra) Ordinance 2002 could not be delegated to the authority’s chairman or any official without framing rules.

The court, therefore, struck down all actions taken by the authority’s chairman for suspension of the licences in April 2020.

Announcing its judgement reserved earlier on a petition filed by the Pakistan Broadcasters Association (PBA), the court also declared null and void those minutes of 156th Pemra meeting that using Section 13 of the Ordinance had delegated powers of the Section 30 to the regulator’s chairman for suspension of the licences.

Holds that suspension power can’t be exercised without framing rules

The judgement, authored by Justice Mohammad Ali Mazhar, who headed a two-judge bench, also rejected the objection raised to the maintainability of the petition questioning territorial jurisdiction of SHC. The bench held that petition had been moved in a representative form to safeguard the interest of members of the PBC.

“In essence, the petition has been filed to challenge the vires of amendment made in the proviso of Section 13 of the PEMRA Ordinance which is applicable across the board,” the court said. “We do not mull over that challenging the vires of law even in Sindh there is any embargo or bar with regard to the territorial jurisdiction of this court hence we reject this objection and found the petition maintainable in this court”.

The PBA had pleaded the court to declare that the amendment to a proviso of Section 13 of the Pemra Ordinance, vide Section 7 of the PEMRA (Amendment) Act, 2007, was unconstitutional and illegal.

The petitioner had also sought the declaration by means of doctrine of reading down that the discretionary powers under Section 13 of the Pemra Ordinance could not be put into effect without enactment of rules to structure such discretion. It had also challenged Pemra’s decision corresponding to Item No.5 of the agenda of its 156th meeting convened on April 24, 2020 conferring powers to the Authority’s chairman to suspend the broadcast licences pursuant to impugned decision.

Faisal Siddiqui, the counsel for the petitioner, had argued that Pemra could not delegate its powers under the Ordinance without first framing rules. He had contended that the requirement to frame rules was mandatory and the issue was not limited to this particular delegation of power by Pemra to its chairman. The issue was also related to interpretation of Section 13 of the Pemra Ordinance as to how any of the powers under the law could be delegated without framing of rules, he added.

The counsel argued that without prejudice to challenge to the vires, Section 13 of the Pemra Ordinance should be read down that no powers under Section 13 of the Ordinance could be delegated without framing of rules. He contended the quasi-judicial power to suspend the licenses could not be delegated without express delegation of such power in the phraseology of Section 13 of the Pemra Ordinance.

Mr Siddiqui had said that Pemra in its 156th meeting had delegated powers to the extent of suspension of the licences to its chairman under Section 30 of the Pemra Ordinance pursuant to Section 13 of the Ordinance. Immediately on delegation of such powers, the Pemra chairman exercised these powers thrice within a short span of time, he added. He contended that the unfettered discretionary delegated power was not permissible as such power had to be structured either by policy guidelines or rules.

Kashif Hanif, the counsel for Pemra, had argued that Sections 29 (6) and 30 of the Pemra Ordinance were two independent sections.

He said the compliance with Section 8 (5) of the Pemra Ordinance was not mandatory as non-compliance with it did not entail any penal consequences. He contended that Section 13 of the Pemra Ordinance had been amended whereby the authority was empowered to delegate its power in respect of suspension of the licences.

Mr Hanif maintained that the power of suspension of a licence being an interim measure to stop further violation of directives of the Authority or to restrain deliberate and contemptuous derogation and contravention of law would not amount to exercise of quasi-judicial power. The matter would be finally heard and decided by the Authority when it came to revocation and cancellation of the licence for which a right of appeal had been provided under Section 30 of the Pemra Ordinance, the lawyer added.

Published in Dawn, August 14th, 2021