IN THE SUPREME COURT OF PAKISTAN, ISLAMABAD.
Constitutional Petition No. of 2014.
Communist Party of Pakistan,
Through its Central Chairman:
Engineer Jameel Ahmad Malik,
Communist Party Secretariat,
1426-Fateh Jang Chowk,
1. Federation of Pakistan through the Secretary Ministry of Information and Broadcasting, Government of Pakistan, 4th Floor, Cabinet Block, Pak. Secretariat, Islamabad.
2. Pakistan Electronic Media Regulatory Authority (PEMRA) through its Chairman, PEMRA Headquarters, Mauve Area G-8/1, Islamabad.
3. Inter Services Intelligence (ISI) through its Director General, ISI Headquarters, Islamabad.
4. Pakistan Broadcasters Association (PBA) through its Chairman, 177/2, 1st Floor, I.E.P Building, Liaquat Barracks, Shahrah-e-Faisal, Karachi.
A Constitution Petition under the Article 184(3) read with the Articles 2-A, 3 and 19 of the Constitution of Pakistan 1973, wherein the criticism of the Judiciary and Armed Forces is prohibited.
That the aforesaid Constitutional Petition under the Article 184(3) read with the Articles 2-A, 3 and 19 of the Constitution of Pakistan, 1973 and Pakistan Electronic Media Regulatory Authority (PEMRA) Ordinance, 2002 and other relevant rules is being filed by the petitioner on the points of law, facts and grounds, as narrated, herein as under:-
POINTS OF LAW:
. The criticism of the Judiciary and Armed Forces is prohibited under Article 19 of the Constitution. Is this view of petitioner is correct?
. The roles of Pakistani TVs Channels are very destructive. Whether there should be any check and balance on these TVs Channels?
. When PEMRA and State don’t check and balance of the negative and destructive role of electronic media. Who is there to check them?
. Whether free licence ignoring all code of conduct be given to the TVs Channels to humiliate any person or Institution they like?
. What are the limitations for the freedom of press and speech allowed to TVs Channels under Article 19 of the Constitution?
. What is the purpose for which Pakistan Broadcasters Association (PBA) was created and does PBA is doing his duty honestly?
. All privately owned TVs Channels are misleading and giving sensational stories and are disturbing the peace of an ordinary citizen and are also exploiting the situation of the country whereas under Article 3 of the Constitution of Pakistan, 1973, the State shall ensure the elimination of all forms of exploitation but in a present Media crisis the PEMRA (Respondent No. 2) and State (Respondent No.1) has acted totally adverse and violated the Article 3. Whether in a case when the State (Respondent No.1) is a party to that exploitation with the PEMRA (Respondent No. 2) and Media mafias, what are its legal consequences and implications viz a viz Articles 3 and 19 in the current political scenario and can the Respondents No. 1 to 2 and 4 be held responsible and accountable in accordance with law?
. Whether the interpretation of Article 3 and 19 of the Constitution of Pakistan, 1973 pertaining to the freedom of press is the responsibility of the Supreme Court of Pakistan or the Parliament?
. Under Article 184 (3) not only an aggrieved person but any person can knock the doors of Supreme Court and question of locus standi or on the right forum is thus not attracted if a question of public importance with reference to the enforcement of any of the Fundamental Rights is involved. Supreme Court is the right forum under Articles 3 and 19 and if Supreme Court abstains from doing what is lawful and right, the Article 19 than becomes totally nugatory and redundant and this is against the basic spirit of the Constitution of Pakistan, 1973. Is this view of the petitioner is legal and correct?
FACTS OF THE CONSTITUTIONAL PETITION:
1.That this is a public interest petition.
2.That the petitioner is a political party established in almost every country of the world. In some parts of the world, the Communist Party is a ruling party and in the rest of the countries, it is opposition of the ruling party. Its basic manifesto is to have socialism based on the ideology of Karl Marx, who was a German philosopher, political economist, historian, political theorist, sociologist, communist and a great revolutionary of all era. Communist Party of Pakistan (CPP) under its subjective condition is in the political arena for the social change, free from exploitation of man by man and is working for the welfare of the downtrodden and poor masses. CPP is a registered political party with the Election Commission of Pakistan with Sickle as its election symbol. Accordingly, the CPP files this petition through its Central Chairman, Engineer Jameel Ahmad Malik on the following facts and grounds, which are as under:-
3.That Pakistan Electronic Media Regulatory Authority (PEMRA) has been established under PEMRA Ordinance 2002 to facilitate and regulate the private electronic media. It has mandate to improve the standards of information, education and entertainment and to enlarge the choice available to the people of Pakistan including news, current affairs, religious knowledge, art and culture as well as science and technology.
4.That accordingly the following legislation was done as under:-
• PEMRA Ordinance 2002
• PEMRA Rules 2009
• PEMRA Regulations 2012
• PEMRA Councils of Complaints (COC) Rules 2010
• Code of Conduct for Media Broadcasters or Cable TV Operators
5.That accordingly the PEMRA issued Licences to the following privately owned TVs Channels, which are as under:-
5. Mashriq TV
7. Indus Vision
8. Indus Music
9. AVT Khyber
10. Khyber News
12. ARY News
13. ARY Digital
14. ARY Zouq
15. CNBC Pakistan
16. Play TV
17. Aman TV
18. Channel 92
19. Ravi TV
20. Hum TV
21. Masala TV
22. Hum News
25. BOL Entertainment
27. A Plus
29. Dunya TV News
30. Dunya TV Entertainment
31. TV ONE
32. Waseb TV
33. News ONE
34. Info TV
35. Samaa TV
36. ZAM Television
38. APNA Channel
41. KTN News
44. Sindh TV News
45. Sindh TV
47. CHANNEL 5
48. Punjab TV
49. Star Asia
50. Dharti TV
51. Mehran TV
52. Express News
53. Times TMN 24/7
54. Express Entertainment
55. Express Music
56. Din News
57. AAJ News
58. AAJ Entertainment
59. SabzBaat TV
60. Royal TV
61. Geo Tez
62. Geo Kahani
63. Geo News
64. Geo Entertainment
65. City -42
67. Business Plus
69. Bol News
70. Such TV
71. Health Channel
73. Aruj TV
74. Roze TV
75. VSH TV
76. Value TV
78. Capital TV
79. Koh-e-Noor TV
80. Dawn News
81. Dawn News Urdu
82. Herald Entertainment
83. Film World
85. Sohni Dharti
86. Awaz TV
87. Mirror TV Network
88. Dhoom TV
89. Geo Super
90. Mashriq TV
91. Pushto One
All the above referred TVs Channels has the representatives in the Pakistan Broadcasters Association (PBA) and accordingly PBA has been cited as Respondent No. 4 being the representative bodies of all the above referred TVs Channels.
6.That since the functioning of all the above mentioned TVs Channels, it is on record that none of the TVs Channels as above referred behaved in a national interest or in a sensible and professional manner and on the 19th of April, 2014 when Mr. Hamid Mir, senior Anchorperson of GEO News was attacked in Karachi and his younger brother Aamer Mir blamed the Director General of the Inter Services Intelligence (ISI) Lt. General Zaheer ul Islam (Respondent No. 3) for attack on Hamid Mir and which was live cast by Geo News for continuously 8 hours and from here the controversy between the TVs Channels started and they started maligning each other including Judiciary and Armed Forces which, otherwise, all these privately owned TVs Channels are prohibited under Article 19 of the Constitution of Pakistan, 1973.
7.That also a complaint against Geo News was moved by the Inter Services Intelligence (Respondent No. 3) through Ministry of Defence to PEMRA (Respondent No. 2) for cancellation of Licence of Geo TV. The same complaint is pending in a sense that five private members of PEMRA on 20-5-2014 decided for the suspension of Geo News, Geo Tez and Geo Entertainment but the other 7 members of PEMRA denied any such decision and so, the complaint of the Respondent No. 3 (ISI) has not yet been decided finally due to controversy among the members of PEMRA. And what now the PEMRA decide is not the concern of the Communist Party of Pakistan (CPP) which represents the downtrodden masses of our country. Our concern is that not only GEO TV but all the above referred privately owned TVs Channels of capitalists tycoons except PTV are working against the terms and conditions of their licences and the PEMRA (Respondent No. 2) and Government of Pakistan (Respondent No. 1) are so helpless against these capitalist Tycoons’ of TVs Channels that no action has been taken against any of the above referred TVs Channels so far and practically no one see the existence of PEMRA and Government on ground.
8.The petitioner party feels that the best course to overcome the media crisis for all coming times is to temporary suspend the licences of all the above referred TVs Channels and after proper scrutiny by the ISI, MI, IB and other concerned agencies, only those TVs Channels be allowed to function whose past tracks proves that they have never violated any terms and condition of their licences given by PEMRA and have not criticizes the Judiciary and Armed Forces who has been protected under Article 19 of the Constitution of Pakistan, 1973 and have performed their duties professionally journalistic and according to the code of conduct or alternatively, an appropriate order as deemed fit in the current situation and scenario of media crisis which has disturbed and frustrated the life of an ordinary citizen of our country may kindly be taken by the Apex Court, interalia on the following genuine
9.Accordingly this constitutional petition is filed on the following among other genuine grounds, interalia:-
Firstly - DESTRUCTIVE ROLE OF PAKISTANI ELECTRONIC MEDIA!
Media has a significant role to play in the country’s success. Its duty is to show the truth but it should not always portray the negative aspects of the country. Qualitative, independent media reporting can play an important role in pressuring the government to act in the public interest. It can change opinions because it has access to people and this gives it a lot of strength. This strength can either be used constructively by educating the people or it can be used destructively by misleading the innocent people; could spoil everything by diverting the attention of people from important issues towards insignificant issues. Power of the media can transform the whole society or it can be used as a ‘weapon of mass destruction.’ The electronic media in Pakistan is playing negatively. It should have been the mirror of society it is operating in but our media has become the mirror of U.S, India, and the West. Working on American agenda, for few dollars, corrupt anchors and privately owned TV channels are propagating the negative image of country in front of outer world.
Our media anchors often divert the attention of the people from the real issues to non issues on behest of the people they are working for. The media is focusing more on sensationalism than truth creating a negative world view and only highlights the individual sort of issues that disrepute the society. In petitioner’s opinion a large section of the Pakistani media does not serve the interest of the people, in fact majority of it is positively anti-people. It often divides the people. The people, who watch these channels in foreign countries, are for sure constrained to think that Pakistan is full of ill-cultured, fraudulent and dishonest people who always involve in crimes etc. The media has totally ignored the important role it should play in this transition period we are passing through. However, the petitioner is not saying that there are no good journalists at all in the media. There are many excellent journalists too who work for the country, but they are always under multiple threats.
Some of the channels and media anchors are working for particular political parties. For instance, the real issues in Pakistan are socio-economic, the terrible poverty in which about 80% of our people are living, the massive unemployment, unbearable load-shedding, the abnormal price rise, lack of medical care, education, the ruin of institutions, breakage of fiber of the society, unaffordable higher education, backward social practices like honour killing and caste oppression, terrorism, religious fundamentalism and so on never highlighted during all the regimes till by now. Instead of devoting most of its coverage to these vital issues the media focused on non issues like film stars, fashion parades, individual rape and killing cases, repeated entertainment programs and talk shows etc. Does a hungry or unemployed man wanted entertainment or food and a job?
Media groups are owned by corporations that seek to profit, regardless of the consequences. Major part of media is absolutely non-objective, complete lies, omission of fact; neglect to report on real news and now false propaganda that could bring the incoming regime under their pressure. The pressure to produce constant unimportant news, all day, every day, on single issue tends to result in over representations of that news. For example, when there is even a minor blast, most of the news channels report almost exclusively on this topic for hours and ignore news with more significance to people’s lives. Each news station is supportive more of one side; biased media. The news covers stories that are more interesting for ratings and gives their opinions more siding with those who pay them more.
They often suppress facts while exaggerating and misleading. They are an extension of their political party’s campaign efforts while pretending to be objective journalists. They follow distributed talking points and their views are extreme compared to that of the average Pakistani. They act like they are the elite, and somehow more enlightened, looking down on the average Pakistani with contempt. The media manipulates facts to distort truths and to promote their own political agenda. For some money corrupt media anchors of different TVs channels are destroying our culture and misguiding the youth of country. Journalism in Pakistan is a failure as well.
Media can play public accountability role by monitoring and investigating the actions of those who are granted public trust and who may be tempted to abuse their office for private gain. The media should work to educate the people, to help the people and to liberate the people and to empower the people. There are times when they should put their personal interests at the back of their mind and show things that could be beneficial for the country and its people and please stop this race of breaking first news just be original. Media is a source of information or communication but now it has been transformed to a source of mere making money. This should stop. Media should act as a bridge between the governing bodies and general public instead of being a tool for one class of politicians and falsely propagating against others to bring them under pressure.
My Lordships!There are always genuine differences of the opinion between the Institutions of the Government but if this difference is between the Armed Forces or ISI (Respondents No. 3) and the Government (Respondent No. 1) the TVs channels give false impression round the clock to the public that as to this difference, the military would take over the Government and Martial Law would be imposed soon. These false stories create chaos in the country and disturb the peace of the ordinary citizen of our beloved country.
Secondly - PURPOSE OF ARTICLES 19 AND 3 IN CONSTITUTION OF
OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973 WHEREIN
THE CRITICISM OF JUDICIARY AND ARMED FORCES PROHIBITED.
The 1973 Constitution is very crucial for the survival of the country. It is the only constitutional document ever to have been promulgated unanimously by each and every member of the National Assembly. Out of 200, 196 voted in favour of it. There were four abstentions, not a single vote of dissent against the passing of the Constitution in 1973.
In the document, the framers of the Constitution provided Article 19 and the Article 19 relating to the freedom of speech and freedom of the press according to the Constitution of Pakistan, 1973 reads as under:-
“Article 19. Freedom of speech etc. : Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence”.
The philosophy incorporated in this Article is basically based on the fundamental principle of democracy and on the interpretation of Article 19; there are quite a large numbers of judgment of Apex Court wherein a clear line has been drawn to differentiate between freedom of press and speech of above referred TVs Channels.
The Article 19 says that only reasonable restrictions as above are to be followed in relation to freedom of press and freedom of speech but ironically, none of the above referred TVs Channels adhered to this provision of Article 19 and these TVs Channels have themselves assumed a free licence to humiliate any person or institution and criticize Judiciary and Army the way they like bypassing all the conditions of Article 19 which says “subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence”.
Similarly the Article 3 of the Constitution of Pakistan, 1973 reads as under:-
“3. Elimination of exploitation: The State shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work.”
That as per Article 3, it is the responsibility of the Respondents No. 1 and 2 that “it shall ensure the elimination of all forms of exploitation.” This includes the way all the privately owned TVs Channels exploits the peoples and the ordinary citizen of our country whenever they desired either of their motions or on the agenda of the foreign countries which funds them for their ulterior motives.
Thirdly – NO CODE OF CONDUCT BEING FOLLOWED BE MEDIA.
That in a democratic set up, freedom of speech/expression and freedom of press are the essential requirements of democracy and without them, the concept of democracy cannot survive. It is also true that the freedom of speech and freedom of press are fundamental personal rights and liberties which are corner stone’s of democratic institutions. The people are interested to know what the truth is and what is going on in the Government Departments etc but in our country, all the above referred TVs Channels have violated Sub-Clauses (d), (e), (h) and (k) of the Clause 1 of the Code of Conduct of PEMRA, which are:
(1) No programme shall be aired which:-
(d) contains anything defamatory or knowingly false;
(e) is likely to encourage and incite violence or contains anything against maintenance of law and order or which promotes anti-national or anti-state attitudes;
(h) maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country;
(k) Promotes, aids or abets any offence which is cognizable under the applicable laws.
It would not be out of place to mention here that a reputed person like Mr. Javed Jabbar, former Information Minister and Senator very rightly wrote which was published on the editorial page of Dawn on 5th May 2014 titled : ‘A media myth’ and which reads as under:-
“non-licensed religious channels are allowed to continue broadcasting.
In addition to PEMRA’s official Code of Conduct, the Pakistan Broadcasters’ Association has a “Proposed Voluntary Code of Conduct “that is in a “proposed” state for the past 4 years. One reason for this delay is sheer arrogance. By making adoption of this Code contingent to the laws of the land being amended to reflect PBA’s wishes, media owners set themselves above an elected Parliament which alone has the right to make laws. PBA also creates a convenient escape-and-exemption clause by stating that:”.. the Code will not be applied stringently on entertainment programmes, satire, drama, films and such (sic ) genres.”
The cumulative result : sanctity of pure news polluted by “infotainment” e.g. playing of film songs instead of using these elements in separate programmes of satire; use of pejorative adjectives that distort facts and information; hysterical mannerisms of some presenters and anchors; pervasive intrusion of advertising, including promotion of absurd miracle cures; major excesses of defamation, character assassination; invasion of privacy; violation of intellectual property rights; excessive Indian content; rush to broadcast without pause to reflect; inane repetition of images in “loops” of various scenes, including terrorists brandishing weapons; re-enactment by actors of cruel , real crimes; heedless pursuit of ratings and profit. Virtual anarchy in the name of freedom.
No channel regularly informs viewers how to register complaints. No report is broadcast by channels on the number and nature of complaints received, actions taken. To cap it all: some PBA Member-channels viciously malign each other.
Over the past 12 years, while the first category of State regulation was hyper-active, the second category of content regulation (by the State, and through self-regulation) became virtually paralyzed. Effective self-regulation is viable only within the framework of public law enacted by strong leadership that should respect the people’s rights more rather than their own timid reluctance to challenge media’s misdemeanours. Public law alone can oblige media to be transparent, accountable and responsible. Otherwise, self-regulation becomes a cover for self-indulgence. Which, in turn, becomes the protection of narrow self-interest.”
Fourthly – NO ACCOUNTABILITY OF MEDIA. FREE
LICENCE TO DO ANY THING THEY LIKE.
The present state of affairs is that the illegal television channels are functioning without any let or hindrance. No religious channel has any licence. When so much illegality creeps in the department of media then this is a reflection of the failure of the state and government.
Some TVs Channels are being funded by foreign countries for ulterior motives and designs but neither the Respondent No. 1 nor Respondents No. 2 and 4 inquire about this foreign funding. It looks as they are party to it. Furthermore, the media is suffering from wishful thinking. It is suffering from the delusion that it has become a pillar of democracy but after the attack on Hamid Mir, the media has plummeted. It is essential that the media reforms itself. It is the duty of the owners to keep them away from editorial control. The media crisis that has been gripping the nation for a month or so took a turn for the worse on daily basis but there is no accountability what so ever in this context.
Fifthly -PURPOSE AND IMPORTANCE OF CONSTITUTION OF
PAKISTAN AND SUPREME COURT IS THE RIGHT FORUM
UNDER ARTICLES 184(3) 19 & 3 OF THE CONSTITUTION, 73.
In the document, the framers of the Constitution provided Article 184, which also stipulated the boundaries of judicial activism. The boundaries are, firstly, that the court can take up only a matter of public importance, and secondly, one that pertains to fundamental rights. So if a whole scale infringement of fundamental rights is taking place, Article 184 enables the Supreme Court to act. This is, of course, in the larger interest of the people. For instance, if a dam that is providing water to say 10,000, or even 1,000 people, is being polluted, their fundamental rights are being violated. They may not have the resources to initiate a case against the violators, but the court can take up the matter. So it is a wonderful device. It’s good for the poorer segments of society, it protects them and it supports them – and it is very much a matter of fundamental rights. Now if anybody has a personal dispute with somebody, this doesn’t come into the picture at all. So, the test is fundamental rights and public importance. If the Supreme Court takes notice of a matter which does not fall within these two conditions then it can be said to be acting beyond its jurisdiction.
Whereas, when the privately owned TVs Channels criticized openly the Armed Forces and Judiciary in severe violations to Article 19 of the Constitution of Pakistan, 1973 this not only affected the fundamental rights of an individual but whole of downtrodden masses and public at large is violated. So much so, the fundamental right of not only Communist Party of Pakistan (CPP) but it infringes the fundamental rights of all the political parties of our country and in view of 11 members bench of Supreme Court headed by then Chief Justice of Pakistan Abdul Haleem Khan in a famous case of Miss Benazir Bhutto vs Federation of Pakistan etc. (PLD 1988 SC 416, 514) in which it was held “Article 17 (2) provides a basic guarantee to a citizen against usurpation of his will to freely participate in the affairs and governing of Pakistan through political activity relation thereto……”
My Lordships!Keeping in view as explained above, it is beyond any shadow of doubt that indeed, a question of a public importance with reference to the enforcement of the Fundamental Rights conferred by Chapter I of Part II is involved in this Constitutional Petition.
Furthermore, under Article 184 (3) not only an aggrieved person but any person can knock the doors of Supreme Court and no question of locus standi or on the right forum is involved in the aforesaid Constitutional Petition of the petitioner. Supreme Court is the right forum and if Supreme Court abstains from doing what is lawful and right, the Articles 3 and 19 than becomes totally nugatory and redundant and this is against the basic spirit of the Constitution of Pakistan, 1973.
PRAYER IN PETITION:-
It is, therefore, respectfully and graciously prayed that this learned Court be pleased to kindly interfere to exercise its constitutional power to the effect that the Respondents No. 1 and 2 be declared to be responsible for the recent media crisis and that it is an eminently fit case for Apex Court to intervene in the larger interest of country wherein the privately owned TVs Channels are openly criticizing the Judiciary and Armed Forces in severe violation to Article 19 of the Constitution and to temporary suspend the licences of all the privately owned TVs Channels except PTV and after proper scrutiny by ISI, MI, IB and the other concerned agencies, only those TVs Channels be allowed to function whose past tracks proves that they have never violated any terms and conditions of their licences given by PEMRA and have not criticizes the Judiciary and Armed Forces who has been protected under Article 19 of the Constitution of Pakistan, 1973 and have performed their duties professionally journalistic and according to the code of conduct and accordingly, a direction for temporary suspension of all privately owned TVs Channels except PTV may kindly be given to the Respondents No. 1, 2 and 4 or alternatively, an appropriate order as deemed fit in the current situation and scenario of media crisis as created by the privately owned TVs Channels mafias which has disturbed and frustrated the life of an ordinary citizen of our country may kindly be taken and also direct the concerned and necessary Respondents No. 1, 2 and 4 to do anything, they are required by law to do.
2.Any other remedy for the supremacy of the Constitution and the law, which this Honourable Court deems fit and appropriate in the facts and circumstances of the case, may also be granted and this petition may kindly be accepted. This prayer is made in the interest of justice.
Drawn up and filed by:
Dated:- 26th of May, 2014.
(Engineer Jameel Ahmad Malik)
Chairman of Communist Party,
Communist Party Secretariat,
1426-Fateh Jang Chowk,
LIST OF BOOKS:
1. The Constitution of the Islamic Republic of Pakistan, 1973.
2. PEMRA Ordinance 2002
3. PEMRA Rules 2009
4. PEMRA Regulations 2012
5. PEMRA Councils of Complaints (COC) Rules 2010
6. Code of Conduct for Media Broadcasters or Cable TV Operators
7. PLD 1988 SC 719
8. PLD 2005 SC 719
9. 1999 SCMR 382
10. PLD 2000 SC 84
11. PLD 2006 SC 697
Certified that this is the first petition in the Supreme Court on the subject.
(Engineer Jameel Ahmad Malik)