“[T]he expression ‘commonly accepted standards of decency’ must be understood to be the contemporary standards as the social mores and sensibilities change over time.”
THE discourse around what constitutes ‘decency’ and ‘vulgarity’ in Pakistani society is often led by the voices of those with privilege and power; they dictate to the rest of us what qualifies as decency in the realm of art and literature. The line quoted above from the Supreme Court judgement authored by Justice Mansoor Ali Shah and Justice Ayesha Malik in the case of ‘Pakistan Electronic Media Regulatory Authority vs ARY’, and issued on April 12, 2023, invites us to realise that the standards of what is considered decent are not static or absolute.
Yet we see regulators in Pakistan impose arbitrary standards on speech and expression, particularly in print, electronic and digital media. In February this year, Pemra issued a notice prohibiting TV news channels from the “broadcast and rebroadcast or live coverage” of terrorist attacks. The notice cites unethical journalism as the primary reason for this ban on coverage, as news channels have been known to air unverified reports. While a valid concern, the approach taken to address the issue is wholly inappropriate, given that it is disproportionate and will result in the censorship of important information that should be available to the public.
Further, Pemra states that reporting on terrorist incidents creates a “forum of political advertising which serves terrorist’s ideological purposes”. There is a need to ensure that the coverage of terrorist groups is done in a manner that condemns their mission; however, such considerations should not result in blanket bans. The Meta Oversight Board reviewed a case concerning a similar situation where Facebook was censoring content and news mentioning the Taliban under the social media platform’s ‘Dangerous Individuals and Organisations’ policy. The board ruled that the removal was incorrect because reporting on terrorist organisations was different from glorification, and should be allowed on social media. Generally, if we are to impose blanket bans on difficult issues such as terrorism, there will be no room for counter-narratives and discourse to critique these dangerous ideologies.
If we impose blanket bans, there won’t be room for discourse.
In another illustration of an overly broad exercise of powers, Pemra banned all coverage of the F-9 Park Islamabad rape case. Similarly, the reasons behind the notice pointed out a valid concern that the survivor’s identity needed to be protected and kept private. The notice could have been tailored under the principle of proportionality to prohibit and take action against the broadcast of identifiable information regarding the survivor; however, it chose to kill speech by ensuring that all coverage of the incident (coverage is often necessary to ensure accountability in high-profile cases) was banned.
These instances speak to Pemra’s arbitrary and non-transparent decision-making, which has been subject to review by the courts. The recently passed judgement tackles the issue of who gets to decide what speech and content should be prohibited. It has been held that the Pemra Ordinance 2002 envisions a “two-tiered” regulatory framework under which any complaint or suo motu action taken by Pemra needs to be referred to the Councils of Complaints for an opinion under Section 26(2) of the ordinance.
The opinion or recommendations made by the councils under Section 26(5) are then placed before Pemra, which can either approve or disagree. In the case of the latter, Pemra must record its reasons in writing and pass an order it deems appropriate, or refer the matter back to the council concerned for reconsideration, under Rule 10 of the Councils of Complaints Rules. The judgement rightly points out that given that Pemra is tasked with the responsibility of regulating content relating to two fundamental rights, Article 19 and 19A of the Constitution, this process has been designed to ensure checks and balances, and representation from a wide cross-section of society in order to promote inclusivity and tolerance.
Additionally, the court stressed that the selection and appointment of council members need to be undertaken through a transparent, independent and meritocratic process. Section 26(3) states that each council must consist of a chairperson and five “citizens of eminence”. The court urged that the phrase be defined through clear criteria for selection, based on a mix of expertise, professional background, demographic diversity and geographic representation. Further, it recommended that an independent selection committee composed of representatives from different sectors, ie, media, academia and civil society, be established to review applications and recommend candidates. The question is: will Pemra listen?
The writer is a lawyer.
Published in Dawn, May 1st, 2023