M/s Labbaik Private Limited VS Pakistan Electronic Media Regulatory Authority etc.

JUD EA'r S tN THE TSLAMABAD H|GH COURT,JTSLAMABAD.

JIIDICIAL DEPARTMENT.

F.A.O. No.68 of 2017

M/S LABBAIK (PVT) LTD.

Vs.

PEMRA, ETC.

PETITIONER BY: Raja Rizwan Abbasi and Mr. Sohail Akhtar, Advocates.

RESPONDENTS BY: M/s AIi Shah Gillani and Ali Zeeshan Haider Gondal, Advocate for PEMRA.

DATES OF HEARING: 10.05.2018.

sHAU1(AT AZIZ S|DDIQUI: lnstant appeal u/s 30(A) of the Pakistan

J:

Electronic Media Regulatory Authority Ordinance, 2002, has been preferred against order dated 27.03.2017, passed by the Respondent Authority in which it decided as follows:-

DEGISION:

t. on or before march 91, 2017, the channet and Dr, Amir Liaqat, shall separately during the same time slot of the programme "whareby amount paid by the Appellant Corporation in excess for the years s|th June, 2007 to 30th June, 200g has been adiusted against ou6tanding R & D Fund and

Contribution on the basis of decision tahen, vide the said order that'Fees' and 'Contribution' are different in their nature and scope as the contribution by virtue of license condition ls a fiscal liability and required to be paid in the manner as prescribed in the license and it does not fall within the category of Fee and late payment of the same leads to imposition of Late Payment Additional Fee (LPAF)'

tt. The Channel shalt also ensure that text to the same effect is also scrolled / displayued on the screen during the entire programme wherein Dr' Amir Liaquat apologizes to the viewers.

III. The Lincensee sha/I submit an affidavit by march 31, 2017, 1600 Hrs with PEMRA, assuring the Authority that no hate speech or any content in violation fo Electronic Media (Programmes and Adveftisements) Code of Conduct, 2015, notified by the Federal Government on the orders of the Hon'ble Supreme Court of Pahistan, shall be aired in future'

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tv. ln case of failure of the channel and / or the host of the said programme, either in paft thereof or as a whole of the above decision, broadcasting or

r*broadcasting or distributing of the programme "Aisay Nahi chalay Ga"

and appearance on BoL TV , in any manner, whaboever, of its host, Dr.

Amir Liaquat, shall stand prohibited with effect from April 1 , 2017 till such a time compliance to the above decision is made'

v. A fine of Rs. one mitlion is imposed on the channel to be deposited within fifteen days of iss uance of this decision'

para 17 (iv vt. The Licensee ls warned that in case of failure to comply wlth and v) above, or in case of violation of the PEMRA taws and / or terms and provisions of conditions of the license in future, action under relevant PEMRA law shall be initiated.".

same as Appellant has prayed that said order may be set aside while declaring illegal, unlawful, unconstitutional null and void' 'BoL

2.Briefly stated facts of the case are that the Appellant on its channel "Aisay Nahi chalay News,, has started a current affairs and political talk show Appellant Ga" which is hosted by Dr. Amir Liaquat, however, on 26'01'2017' came to know about the press release issued by Respondent No'1 that a passed by prohibition order against the said programme and its host has been the Respondent and suspended it till further order. Respondent No'1 also

completely banned the host from hosting any programme, or to appear in any

manner, including but not limited aS a guest, analyst, reporter, actor in audio by the video beeper promo/advertisement. said prohibition order was challenged 5812015 and the Appellant through application u/s 151 CPC through M.A' No. Hon'ble High court of sindh suspended the prohibition order dated 26'01'2017 ' the said issued by Respondent No.1. Respondent, feeling aggrieved assailed order before the Hon'be supreme court of Pakistan through cPl-A No' 17312017,

in which the hon'ble apex Court directed the appellant to appear before the were directed Respondent Nos. 2 & 3 and submit replies, whereas, Respondents as well as to pass final order after hearing the Appellant. Accordingly, Appellant complaints and host of the above programme appeared before the council of and Lahore, where filed their replies before the council of complainants, Karachi hearing of the complaints filed against the Appellant started and it after, remarks' transpired that some serious allegations of hate speech, derogatory incitement to violence against citizen and casting accusation of being anti-state and in and anti-lslam on various individuals were leveled in complaints Ga" but no prohibition order, against the host of the program "Aisay nahi Chalay nor Respondent No'1 evidence was neither being produced by the complainants along with Gomplaints and in prohibition order to substantiate the leveled produced all the material in allegations. Appellant denied all the allegations and Nos' support of his contentions before the council of complainants/Respondent

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2 & 3. After detailed proceedings and hearing at length, the council of Complaints reserved their recommendations and finally on27.03.2017 impugned order was passed against the Appellant.

3.Learned Gounsel for Appellant submitted that Respondents have failed to understand that through his program Appellant by giving the reference of picture to the Blasphemy pages of 'Bhensaa' has just shown other side of the nation which in no way can be called violation of any law or right of any body as the the blasphemous contents on the said page and other similar pages targeted honor of the Holy prophet (PBUH) which contents were later on intentionally program of the was hidden by those involved in the matter. Moreover, Appellant's against the mentality who used to abuse malign Pakistan Army and nationa! institutions on the basis of their self-developed imaginary definition of freedom of is duty speech. Learned Counsel further submitted that the adjudication authority bound to weight conflicting evidences and to draw their own inference and conclusion in order to administer substantial justice but the impugned order is

passed without considering any factor put forward before the authority by the Appellant and went on passing a non speaking order which lacks substantial failed to material which could support the decision taken therein rather they have incorporate the Appellant's version and issued the impugned order in violation of & 19-A of fundamental rights guaranteed to the Petitioner under Articles 10-A, 18 the constitution of lslamic Republic of Pakistan. Learned counsel added that Respondents have failed to decide the issue through an unbiased and impartial against approach and ignored the reality that the Appellant has raised his voice of the Blasphemers who were involved in heinous crime and nothing in support allegationsleveled against the Appellant was neither annexed with the complaints nor produced during the proceedings before the Council of

Complainants. Learned Counsel reiterated that the Respondents with malafide

intention discriminated and victimized the Appellant at the behest of competitors of the Appellant and actually they themselves have violated the PEMRA laws, rules and regulations by passing the impugned order while performing their duties unlav'rfully and unethically.

4.On the other hand, Iearned Counsel for Respondents supported the with impugned order as being well reasoned and passed strictly in accordance law and rules. Learned Counsel further submitted that whole the proceedings prior passing of impugned order have been conducted

fairly while keeping in mind the rights of the Appellant relating to fair trial and counsel while remaining within the parameters prescribed by the law. Learned prayed for dismissal of instant F.A.O. as being devoid of any force'

5.Arguments heard, record Perused

decision is

6.Basic objection which appellant has raised on the impugned beyond the that their channel neither violated any rule or regulation nor stepped prescribed in restrictions imposed on them by the PEMRA Ordinance, 2002 or terms and conditions of license issued to them under the said ordinance' Respondents issued license for establishment and operation of a broadcast ibid, whereas' media and distribution services under Section 19 of the Ordnance by powers to devise a code for programme and advertisements for compliance No'1' the licenses under section 19(5) were also vested to the Respondent Moreover, under section 20 ol the ordinance a person who is issued a license

under the said ordinance has to ensure that all programmes and advertisements

do not contain any material offensive to commonly accepted standards of Authority to decency. similarly, section 27 of the said ordinance empowers the or prohibit and broadcast media or distribution service operator for broad casting rebroadcasting any programme which inter alia is offensive to the commonly

accepted standards of decency or is like to create hatred amongst the people or

willfully causes damage to any other person, by a well reasoned written order'

For convenience above referred sections of PEMRA Ordinance, 2002 are reprod uced here-in-below: - 1g. License to broadcast or operate.- (1) The Authority shall have exclusive right

to issue ,rcenses for the estabtishment and operation of atl broadcasf media and distribution services, provided that this exclusive right shall be used by the applied to all Authority in conformity with the principles of faimess and equity potential applicants for licenses wfiose eligibility shall be based on prescribed

criurianotifiedinadvanceandthatthisshatlbedonethroughanopen, transParent bidd i ng Process.'

provided that the bidding shall be held if the number of appllcations exceeds the number of licenses fo be issued by the Authority.

(2)No person shalt engage in any broadcast media or distribution service

exceptafterobtainingaticenseissuedunderthisordinance.

(3)Every license shalt be subiect to such terms and conditions as may be

prescribed.

(4)The Authority shall have the power to determine number of licences to

be issued in each category or sub-category and charge fees at such rates as fhe Authoritymay flx from time to time for the grant of a license and for iE annual renewal.

(5)The Authority shalt devise a code of conduct for programmes and advertisements for compliance by the licensees'

20.Terms and conditions of ltcense.- A person who is issued a license under this Ordinance shall-

(a)ensure preseruation of the sovereignty, securw and lntegrity of the lslamic Republic of Pakistan;

(b)ensure preseruation of the national, cultural, social and religious values and the principles of pubtic policy as enshrined in the Constitution of the lslamic Republic of Pakistan;

(c)ensure that atl programmes and adveftisemen$ do not contain or encourage violence, terrorism, racial, ethnic or religious discrimination, sectarianism, extremism, militancy, hatred, pornography, obscenity, vutgarity or other material offensive to commonly accepted standards of decency

(d)compty with rules made underthis Ordinance;

(e)broadcast, if permissible under the terms of ifs licence, programmes in the pubtic interest specified by the Federal Government or the Authority in the manner indicated by the Government or, as the case may be, the Authority, provided thatthe duration of such mandatory programmes do not exceed ten per cent of the total duration of broadcast or operatlon by a station in twenty-four hours except lf, by its own votition, a station chooses fo broadcast such content for a longer duration;

(t)compty with the codes of programmes and advertisements approved by the Authority and appoint an in-house monitoring committee, under intimation to the Authority, to ensure compliance of the Code;

(g)not broadcast or distribute any programme or adveftisement in viotation of copyright or other property right;

(h)obtain Noc from Authority before import of any transmitting apparatus for broadcasting, and distribution or telepofting operation

(i)not sell, transfer or assign any of the rights conferred by the licence without prior written permission of the Authority.

27.Prohibition of broadcast media or distribution seruice operationr The Authority shall by order in writing, giving reasons therefore, prohibit any broadcast media or distribution service operatorfrom'

(a)broadcasting or re-broadcasting or distributing any programme or advertisement if it is of the opinion that such particular programme or adveftisement is against the ideology of Pakistan or is likely to create hatred among the peopte or is preiudicial to the maintenance of law and order or is likely to disturb pubtic peace and tranquility or endangers national security or is pomographic, obscene or vulgar or is offensive to the commonly accepted standards of decency; or

(b)engaging in any practice or act which amounts to abuse of media power by way of harming the legitimate interests of another licensee or willfully causing damage to anY other Person,

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section 27 ibid permits the authority to initiate action against licensee who acts in violation of any provision of the ordinance, Rules and Regulations including the code of conduct' Likewise in the case of Appellant, Respondent in exercise of powers vested through section 27 of the pEMRA ordinance , 2ooz, by giving reasons in writing prohibited the Appellant from broadcasting and re- broadcasting, fresh ord or repeat program named ,Aisay Nahi chate Ga,, and banned its host Mr. Aamir Liaquat from hosting any program or appearing any manner incruding but not rimited to as a guest, anaryst, reporter, actor, in audio, video beeper promo/advertisement on BoL News, till the time respective councils of complaints make recommendations on the complaints received by PEMRA and the subsequent decision of the Authority on these recommendations.

7 ' Appellant was duly represented in the proceedings before the council of Complaints through its representatives which fact is not even denied by the Appellant thus it cannot be said that due hearing was not provided to the Appellant in accordance with Article 10-A of the constitution of lslamic Republic of Pakistan, principles of natural justice and provisions of the Ordinance ibid.

8.Another objection on the impugned order passed by the Respondents raised by the Appellant is that same is viotative of the rights of trade, business or profession guaranteed to the Appellant by Article 1g of the constitution of lslamic Republic of Pakistan which for ready reference is reproduced here-in-below:-

"18. subiect to such quatifications, if any, as Tly bg prescribed by taw, every citizen shall have the. righl to enter upon any lawfulirofeiston to conduct any lawful tride or busine'ss: or occupation, and Provided that nothing in this Article sha[ prevent_ !:l !!r" reguration of any.trade or profession by a ricensing system; or (b) the reguration of trade, commerce or inouslf in ii," int"r"st of free competition therein; or

(c)the carrying on by the Federal Government or a provincial by a corporation controfled by any such Government,Government, of any or business, industry or service, to ine eicrusion, comprete trade, pensons.',. oi parti"i,tr oirr",

I have carefully gone through the provisions of Article 18 above and reached to the considered conclusion that Provisions of Art.18 ibid are not attracted in the matter in hand because right of freedom of trade, business or profession guaranteed by Art.18 of the Constitution is not absotute or unfettered, as it can be subjected to reasonable restrictions and regulations as may be prescribed by law' Regulation of any trade or profession by a system of ricensing empowers the authorities concerned to impose reasonabte restrictions on the exercise of the right which should bear true ,'trade,, or ,'profession,' and for purposes of promoting general welfare. Moreover, in the case of Appellant there exists no guarantee to the effect that when some contents of the programme aired by the Appellant channel travelled beyond the restrictions

imposed by the Respondents as per relevant rules and regulations, there could be no question of any such Fundamental Right. The competent authority which in the present case is PEMRA is at liberty to regulate its affairs through reasonable restrictions and limitations which should not be arbitrary, discriminatory, or demonstrably irrelevant to the policy and should not cause an unnecessary and unwarranted interference with individual liberty. Under Section 19 of the pEMRA Ordinance,2OO2, Respondent authority is duly empowered to prescribe certain terms and conditions which as per Section 20 of the said Ordinance are mandatory for the ticensee to follow in letter and spirit. Further if the Respondent authority is of the opinion that any particular programme or advertisement is against the policy laid down by it then under Section 27 ol the Ordinance ibid can validly prohibit such distribution service operator from broadcasting such content. Guidance in this regard can be sought from case law reported as Pakcom Limited and others VersuS Federation of Pakistan and olhers,PLD 2011 sc 44t.

g. As far as availability of right to access to information by the general public guaranteed as per Article 19-A of the Constitution as contended by the Appellant is concerned it is stated that Subsequent to the passing of Freedom of lnformation Ordinan ce,2OO2, said Article was inserted in the Constitution through Constitution (Eighteenth Amendment) Act, which grants every citizen the right to have access to information in all matters of public importance subject to regulation and reasonable restriction imposed by law thus the present case the information which was to be given to the general public through the programme aired by the Appeilant should have been well within the spheres/restrictions prescribed/imposed by the Respondent Authority, whereas, although Question as to whether content of programme contained any objectionable content under the code of conduct or terms and conditions of Iicense, was best suited to be answered by the appropriate forum which in the present case was the Council of Complaints under 5.26 of the Pakistan Electronic Media Regulatory Authority Ordinance , 2002, but, under Section 27 of the Ordinance, ibid the Respondent authority is also empowered to prohibit any channel from broadcasting or re- broadcasting or distributing any programme or advertisement if it is of the opinion that such particular programme or advertisement is likely to create hatred among the people and lt is a wetl-settled principle that when the legislature entrusts to an authority the power to pass an order in its discretion an order passed by that authority in exercise of that discretion is, in general, not liable to be interfered with by an appellate court, unless it can be shown to have been based on some mistake of facts or misapprehension of the principles applicable thereto which is not the situation in Appellant's case. Reliance in this regard is placed on the (PLD 1956 SC lnd.231t.

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was issued to the

10.Nutshell of the above discussion is that the license restrictions imposed through PEMRA Appellant which was subject to certain ordinance,zx[z,andotherrelevantRulesandRegulations'includingthecode as well as terms and conditions of license' and in case of violation of of conduct powers available to the Respondents any such restriction there were sufficient under section 27 of the ordinance to take action against the derinquent news is also empowered to render its opinion channel. similarly, council of complaints received by it direcfly from the pubric or on such matters either on the compraints it has to maintain certain standards those referred to it by the Authority, however, whom complaint is received' which relating to fair opportunity to the party against Appellant, hence' I am of the considered in my view is sufficiently provided to the and the way the proceedings before view that the process which was adopted passing the impugned order are being carried out is well within the spheres

drawnbytherelevantrulesandregulations.TheCouncilofComplainantsSindh andLahoreinitsjointmeetingheldatPEMRAheadquarterson10'03.2017' the complaint received through thoroughly analyzed the cbmplaints including the clips/epi'sodes of the Complaint and call centre of PEMRA, reviewed authorized representatives of M/s programme" Aisay Nahi chalay Ga",'heard the programme in person and made its Labbaik (Pvt) Ltd as welt as host of the which in its 127th meeting held recommendations to Respondent No.1 / PEMRA on 24.03.2017'determined that contents aired on Appellant's channel from titled "Aisay nahi Ghalay Ga" were January 2lo 24,2OlT during the programme read with Rule 15 0f in violation of section 20 0f the PEMRA Ordinance,2002' within the meaning of clause 23 of PEMRA Rules 2OO9 amounts to hate speech code of conduct' 2015 and Electronic Media (Programmes and Advertisements) the impugned order does not passed the impugned order, thus, in my estimation, sufferfromanyillegality,unfairnessorarbitrariness'hence'noexceptioncanbe taken to the same. Resultantly, titled appeal is dismissed 11 Thesearethereasonsformyshortorderdatedl0.0s.20lS JUDGE u, Approved for RePortins' Btue SliP Added

Adnan/*

Uploaded By : Engr. Umer Rasheed Dar