April 12, 2023
By Ahmed Saeed
The Supreme Court in its judgment on Wednesday, has held that the Pakistan Electronic Media Regulatory Authority (PEMRA) is bound to consider the opinion of the Council of Complaint before passing any order of prohibition under section 27(a) of the PEMRA Ordinance, 2002.
The Court noted that the the PEMRA Ordinance envisages a two-tiered regulatory system.
“The media content has to be first viewed by the Council of Complaints, an independent public regulatory body and after obtaining its opinion, PEMRA, the government regulatory body, is to consider the opinion of the Council of Complaints and finally decide the matter,” the 29-page order read.
Section 27 A of the ordinance empowers the authority to prohibit the broadcasting or re-broadcasting or distributing any programme or advertisement if it is of the opinion that such particular programme or advertisement is against the ideology of Pakistan or is likely to create hatred among the people or is prejudicial to the maintenance of law and order or is likely to disturb public peace and tranquility or endangers national security or is pornographic, obscene or vulgar or is offensive to the commonly accepted standards of decency.
“Section 27(a) of the PEMRA Ordinance is not an independent and self-governing provision; it rather requires for its applicability the opinion of a Council of Complaints regarding the objectionable aspect of a programme or advertisement in terms of Section 26(2) of the PEMRA Ordinance read with the Councils of Complaints Rules,” the court ruled.
The matter was decided by a two-member bench comprising of Justice Mansoor Ali Shah and Justice Ayesha A Malik in an appeal filed by PEMRA against ARY channel. The PEMRA in 2020 under section 27 (a) of the ordinance prohibited ARY from broadcasting and rebroadcasting the drama serial “Jalan”. The PEMRA alleged that the story of the drama serial is immoral and against social and cultural values.
However, the Sindh High Court set aside the prohibition order and held that PEMRA could not have bypassed the Councils of Complaints in making the prohibition order.
The court also declared that if the PEMRA or its chairman wanted to take suo moto notice, “the matter has to be first sent to a Council of Complaints for its opinion and after considering the said opinion, PEMRA or its Chairman, as the case may be, can take the final decision.”
Federal govt must establish criteria
Commenting on the Selection and appointment of members of the Councils of Complaints, the court directed the federal government to establish a clear criteria for the selection of public representatives, which might include a mix of expertise, professional backgrounds, demographic diversity, and geographic representation.
The court held that the government must announce the opportunity to serve on the Councils through various channels, such as newspapers, websites, social media, and community organizations to attract a diverse pool of applicant
To ensure a transparent and impartial selection process, the Court also ordered to establish an independent selection committee composed of representatives from different sectors, e.g. media, academia, and civil society, to review applications and recommend candidates.
“Commonly accepted standard of decency is a standard of tolerance, not taste”
The court while interpreting the expressions “obscene”, “vulgar” and “offensive” used in the PEMRA ordinance held that only that form of an expression can be said to be “obscene” or “vulgar” which is “offensive to the commonly accepted standards of decency”.
“Thus, the “commonly accepted standards of decency” in the community is the benchmark to determine whether or not a particular form of the expression of one’s thought, idea or opinion in a play or drama is “obscene” or “vulgar”. The important thing to understand is that the commonly accepted standard of decency in a community is a “standard of tolerance, not taste,” the court order said.
The order further stated that the expression “commonly accepted standards of decency” must be understood to be the contemporary standards as social mores and sensibilities change over time.
Work of art should not be labelled as vulgar
The court said that any work of art and literature including play or drama is usually considered a strong and effective medium to break the silence on social taboos; therefore, it is not to be labeled as “obscene” or “vulgar” readily without appraising the message it intends to convey
“In this perspective, one would need to see whether that message tends to promote or glorify the conduct or behaviour which is offensive to the commonly accepted standards of decency, or it tends to condemn or deprecate such conduct or behaviour,” the order read.
The court noted that such a review is to be undertaken on an objective assessment of the play or drama as a whole, not on the basis of pick and choose of its parts from here and there.