If the amendments in the Pakistan Media Regulatory Authority (PEMRA) bill, passed by the National Assembly in May, 2005, are approved by the Senate and signed by the President, they will constitute the most draconian legislation against the media since the Press and Publications Ordinance introduced by Ayub Khan in the mid '60s.

           The move to bring amendments in the PEMRA bill 2004 came after a controversy between FM-103 and the PEMRA authority, when the former was asked to suspend its airing of BBC news. The radio station's office in Lahore was raided and sealed while the matter went to the Lahore High Court, where it is still pending. The authorities believe that FM-103 had violated the law under which no foreign media can operate from Pakistan.

            Similarly, PEMRA moved against several cable operators who were allegedly operating illegally and suspended their services. Interestingly, in the NWFP, it was a case of damned if you do and damned if you don't as legal cable operators were forcibly made to suspend their services by religious extremists.

          The amendments were moved in the wake of these incidents in order to give more powers to PEMRA against illegal cable operators. In the process however, the regulatory authority acquired unprecedented powers, particularly with the deletion of certain clauses which previously acted as a check.

          While the amendments on the one hand lift restrictions on cross-media licences, on the other, they contain some clauses that allow the government to gag the media.

            When the bill was passed by the National Assembly, the electronic media, without glancing through the amendments, prematurely hailed it as a breakthrough. Newspaper owners, however, remained silent, while the Pakistan Federal Union of Journalists (PFUJ) denounced it as a "black law."

          Prior to their approval by the parliament, the amendments were sent to the Standing Committee, which passed the bill without much debate. Only Sherry Rehman from the PPPP opposed the amendments, perhaps more on account of being a journalist herself rather than as a member of the main opposition party.

           The bill stipulates that the function of the "Authority," will be to regulate the "distribution of foreign and local TV and radio channels in Pakistan."

          All 13 members of PEMRA, including its chairman, will be appointed or nominated by the President. The chairman, as defined in the bill, shall be an eminent professional of integrity and competence having substantial experience in media, business, finance, economics or law. Critics point out that the present Chairman, Iftikhar Rasheed, who comes from the police, hardly meets this criteria.

          Although five of the committee's members will be from the public, they will be chosen by the government or by the President himself. In the original bill there were nine members, including five from the public. Now, while the total number of members has been increased to 12 (excluding the chairman), public representation has remained at five.

            As per the amendments, the Chairman, Central Board of Revenue (CBR), the Secretary Information and Broadcasting, Secretary Interior Division, and the Chairman of Pakistan Telecommunication Authority have been included as ex-officio members.

         The amendments also decree that two additional members, on the recommendation of the Chairman, shall be appointed by the federal government on "need basis."

          All said and done, even the hand-picked citizen's representation in PEMRA will now constitute a minority with hardly any say.

          The members shall receive such fees and expenses for each meeting as may be prescribed. This will mean that all the government officials and concerned secretaries will draw extra financial benefit aside from their regular remuneration.

          Under the clause "terms and conditions of licence," anyone issued a licence to broadcast must broadcast a programme in the public interest which will be "specified by the federal government or the Authority in the manner indicated by the government or, as the case may be, the Authority, provided that the duration of such mandatory programmes do not exceed ten per cent of the total duration of broadcast or operation by a station in 24 hours except if, by its own volition, a station chooses to broadcast or distribute such content for a longer duration."

          Moreover, anyone who acquires a licence must obtain a no-objection certificate from PEMRA before importing any transmitting apparatus for broadcasting, distribution or telereporting operations.

          The amendment to clause 21, 'consultation with the provinces,' particularly smacks of bureaucratic highhandedness. In the original bill, it was mandatory for PEMRA to "invite" a representative of the provincial government with regard to the proposed location of the radio station or TV channel. In the amendment, the word "shall" has been replaced with "may."

          Although Clause 26 does allow a council of complaints - comprising five individuals, including two women - the government has the discretion to select its members. The council will have the task of receiving and reviewing complaints made by any individual or organisation from the general public against any aspect of the programmes aired. It will have the power to summon the licensee against whom a complaint has been made and can recommend action against him.

          One of the most alarming aspects of the bill is Clause 27, Prohibition of Broadcast Media or Distribution Service Operation, which is reminiscent of the Press and Publications Ordinance, under which the police muzzled the press during successive governments.

            It states:

            (1) The Authority shall, by order in writing and by giving reasons therefore, prohibit any broadcast media or distribution service from:-

            (a) broadcasting or re-broadcasting any programme or advertisment if it is of the opinion that such 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 tranquillity or endangers national security or is pornographic, obscene or vulgar or is offensive to the commonly accepted standard of decency and

            (b) engaging in any practice or act or which amounts to abuse of media power by way of harming the interest of another licensee or willfully causing damage to any other person.

            Under clause 29, PEMRA may authorise any of its officers or its nominees to enter the premises of a broadcaster or operator for the purpose of inspection.

            A section which allowed a three-member committee, headed by a retired judge of the High or Supreme Courts, to offer an opinion regarding any provision of the Ordinance has been deleted. Incidentally, this committee was never formed even when it was part of the original bill, which gave some indication of the government's attitude.

            An aggrieved person or party has been given the right to appeal in the High Court within 30 days of the receipt of any decision. However, given the snail's pace at which the wheels turn in our legal system, this hardly offers a practical remedy.

            The amendment in clause 32, "Power to grant exemption," has specified certain criteria for grant of exemption from any provision of the Ordinance. In the original bill it was suggested that the "grant of exemption shall be based on guidelines and criteria identified in the Rules, and that such exemption be made in conformity with the principles of equality and equity as enshrined in the Constitution." This entire portion has now been deleted.

            Clause 33 relates to "Offences and Penalties." According to Section 1, "Any broadcast media or distribution service operator or person who violates or abets the violation of any of the provisions of the Ordinance shall be guilty of an offence punishable with a fine which may extend to ten million rupees."

            Section 2 says, "Where such broadcast media or distribution service operator or person repeats the violation or abetment, such person shall be guilty of an offence punishable with imprisonment for a term of three years or with fine, or both."

            Section 3 allows, in addition to fine and imprisonment, confiscation of the equipment.

            Clause 34-A has made violations of the PEMRA bill "compoundable and cognisable."

            During the last two years the government has issued licences to dozens of private channels, including television channels owned by newspaper owners and FM radio stations, thereby creating an impression that there is complete freedom of the press in Pakistan. However, a clause to clause reading of the amended PEMRA bill gives journalists cause for concern.

            For instance, even reporters working for FM or television channels can be arrested or punished and any radio or channel closed down by PEMRA under its own interpretation of Pakistan's ideology, national security, obscenity or vulgarity.

            Unfortunately, journalists and editors' bodies were not consulted in the preparation of the bill and most MNAs could scarcely comprehend its possible impact on the freedom of expression

            Journalistic circles believe that the power to determine whether any programme is violative of the above mentioned conditions should rest with the 13-member committee comprising parliamentarians, representatives of journalists and editors' bodies and senior jurists.

            While the bill, in its new form, will give the government another stick to beat the media with, there are laws still extant which can and have been used against the press even by the present government, not to mention other pressures to keep it in check.

            On the other hand, the government has failed to implement the Newspaper Employees (Condition of Service) Act, 1973, a pro workers law which gives minimum economic relief to newspaper employees. Perhaps the only law in Pakistan which protects the rights of the workers, it was not only passed unanimously by the parliament in 1973, but was also unanimously supported by the present National Assembly, the Senate, all four provincial assemblies and by the federal and provincial cabinets. A rare consensus on any bill or law ever seen in Pakistan.

            Despite government claims to the contrary, the press in Pakistan continues to suffer the consequences of exercising its constitutional right to be free. Maintenance of Public Orders (MPOs) have often been used against the media as have a number of other pressure tactics, the withholding of government advertisements from offending publications being just one of the more well-known.

            Last year, without going to court to prove its case, the Sindh government imposed a ban on six evening newspapers under the Obscenity Act. However, the ban was lifted after 30 days.

            Just a few months back, a case under the Official Secrets Act (OSA) was registered against a reporter of Awam and Geo TV, Afzal Nadeem, for publishing a letter by the federal government seeking a report from the police about the MQM. Although the party leadership itself took strong notice of the government's action, the reporter was charged under the OSA, on the pretext that the country's integrity was imperilled by his report.

            A few years back, an Islamabad-based journalist Humayun Fahr was awarded the the death penalty under the same act and was even court martialled. He was, however, released and subsequently died of cancer.

            Given this chequered history, it is imperative that the controversial PEMRA bill be debated not only by parliamentarians but by members of the civil society, as well as editors' and journalists' bodies.

            It is believed that even the federal Information Minister Sheikh Rashid Ahmed has reservations about the PEMRA bill, which gives some hope to journalists that certain clauses, particularly those regarding punishment, confiscation of equipment and the formation of the committee to monitor the violations, may either be withdrawn completely or else replaced with more reasonable stipulations.

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