ISLAMABAD: The Supreme Court on Thursday rejected an appeal filed by the Pakistan Electronic Media Regulatory Authority against a Sindh High Court’s decision that had declared as illegal the delegation of powers to the Pemra chairman of suspending the broadcast media licences without framing any rules.
The SC bench — headed by Justice Ijazul Ahsan and also comprising Justice Munib Akhtar and Justice Sayyed Mazahar Ali Akbar Naqvi — took up the appeal moved by Barrister Ahmed Pervaiz on behalf of Pemra.
Senior counsel Faisal Siddiqi, who represented the Pakistan Broadcasters Association (PBA), told Dawn after the hearing he argued that suspension of the licence even for a short while could destroy the business of a news channel and would lead to its closure.
He contended that the delegation of such powers solely to the chairman destroys the remedy enjoyed by the TV channels to an independent regulatory body. He said delegation of such powers created the dictatorship of Pemra chairman and destroyed the fundamental rights under Article 19 (right to freedom of speech) and 19A (right of information) of the Constitution.
At its 156th meeting held on May 24, 2020, Pemra conferred its authority to suspend the broadcast licences of any channel on any violation of the Pemra Ordinance 2002 to its chairman by making him sole authority to decide the issue of suspension. In pursuant to this delegation, the Pemra chairman arbitrarily suspended the broadcast licences of several channels.
The PBA challenged the delegation of such powers to Pemra chairman before the SHC.
On Aug 13, 2021, a division bench of the high court, headed by then Justice Muhammad Ali Mazhar, declared this delegation of suspension such powers to the Pemra chairman as illegal and even directed that unless rules structuring the delegated discretion were framed, no such delegation to the Pemra chief could be given.
Pemra challenged the high court’s decision before the Supreme Court and the appeal came up for hearing on Thursday.
The counsel for regulator argued that delegation of powers to the Pemra chairman as the sole decision-maker regarding suspension was completely legal and there was no need to structure these powers.
However, the court observed that if allowed this would lead to an autocracy of Pemra chairman and the collective wisdom of the authority would be destroyed.
Justice Munib Akhtar observed that if such unfettered delegation was allowed then tomorrow Pemra can delegate the powers to dismiss any of its employees to anyone, even outsiders.
“There has to be a structuring of the discretion to suspend, otherwise it might severely damage the fundamental right of freedom of speech under Article 19 of the Constitution,” Justice Akhtar observed, adding that such drastic powers affecting the broadcast licencees could not be delegated to anyone without framing rules.
Justice Ahsan observed that it was not understandable why Pemra had not been able to frame rules for delegation of powers over the past 20 years. Even though over a year has passed since the high court’s judgement, Pemra has still not framed any rules to structure these discretionary powers, Justice Ahsan observed.
The SHC in its order held that Section 30 of the Pemra Ordinance could not be delegated to the chairman or any other official by dint of Section 13 of the same ordinance for suspension of broadcast media licences without framing rules.
Hence the decision taken during the 2020 meeting was declared to be void, the high court order said, adding that consequently all actions taken by the chairman pursuant to the delegated powers for suspension of the broadcast licences were struck down.
Published in Dawn, November 11th, 2022