October 8th, 2020
By Hamid Riaz
On October 1, 2020, the Pakistan Electronic Media Regulation Authority (PEMRA) issued a notification to all television channels in the country to stop broadcasting speeches, interviews, and other forms of public addresses by people who have absconded from the courts or those who have been declared proclaimed offenders by the court.
The ban came soon after a fiery speech by PML-N leader Nawaz Sharif and is largely seen as an attempt to limit his viewership because he had been declared a ‘proclaimed offender’ by the courts earlier this year in the Toshakhana Case. The PEMRA ban came about as a result of a complaint by Supreme Court Advocate Azhar Siddique who is known as a ‘serial petitioner’.
Since the ban there has been vigorous debate in the media regarding its legality, experts have also questioned PEMRA’s jurisdiction over the matter.
AGAINST THE SPIRIT OF THE CONSTITUTION
While talking to journalist Munizae Jahangir on her show ‘Spotlight’ on Aaj TV, senior lawyer Latif Afridi declared PEMRA’s ban on Nawaz Sharif’s speeches against the spirit of Article 19 of the Constitution.
“Calling someone an absconder or a proclaimed offender is not a good enough reason to ban someone’s speech from being broadcast,” he had said. “Until and unless someone has been convicted, their right to free expression cannot be taken away from them. And even convicts get their rights back after some time.Only the courts can disqualify someone from making speeches over broadcast media. No one else, not even PEMRA has that authority,” he said speaking about PEMRA’s jurisdiction.
On the same show constitution expert Barrister Salman Akram Raja, who has also represented Nawaz Sharif in the past, stated that proper legislation has not been done to explain the restrictions on Article 19.
“There is no law which empowers PEMRA to ban someone’s speech,” he said concurring with Advocate Latif Afridi. “In a constitutional set-up, you cannot just draw authority out of thin air. There must be a legal framework backing up every move you make. For this reason, I believe that the ban on Nawaz Sharif’s speeches is completely illegal.”
In addition to being opposed on legal grounds, the PEMRA order has also been rubbished based on PEMRA’s record of selective censorship.
Advocate Col (R) Inam filed a complaint with PEMRA to ban Pervaiz Musharaf’s and Tahir-ul-Qadri’s speeches but PEMRA did not entertain the complaint, ironically, citing Article 19 of the Constitution.
“According to the National Action Plan no person who has been charged with terrorism can appear on television,” he asserts. “Both Musharraf and Qadri were absconders in terror charges so I requested PEMRA to take down their speeches. Instead, the body asserted their right to free expression under the constitution. It shows that the body has dual standards.”
Even though many towering legal experts have rejected the ban and have called it against democratic principles, a closer look at the actual document reveals that the ban does have some foundation in the law.
The document first quotes a judgment of the Supreme Court of Pakistan which authorizes PEMRA to ban content to comply with the judgments of the courts. In a sense legitimizing and asserting PEMRA’s jurisdiction over the matter.
The document then goes on to refer to a judgment of the Sindh High Court whereby the court has clearly stated that if absconders and proclaimed offenders were to be given all the rights which are enjoyed by ordinary citizens then “the purpose and object of the declaration of one as an ‘absconder/proclaimed offender’ never served its objective nor would do so.”
Bearing in mind that the PEMRA ban does not target Nawaz Sharif particularly; instead, it bans media outlets from airing speeches from “all proclaimed offenders/absconders”.
Both these judgments combined provide for a solid legal basis for banning absconders/proclaimed offenders from appearing on media outlets.
“Even though I do not support the ban per se calling it illegal would be technically wrong. I find the Sindh High Court judgment to be highly problematic but it is the law until it is challenged in the court of law,” says Senior Constitutional Lawyer Mansoor Awan.
Moreover, per the law, if PEMRA chooses not to act on Azhar Siddiqui’s request to place this ban, Azhar could have taken the body to the court which would have held it in contempt. “PEMRA has to abide by court judgments, so they had to entertain Azhar’s complaint,” explains Mansoor.