While legality of the new CoC is yet to the certified, its fate is unlikely to be different from its previous incarnations that proved them unenforceable requiring new versions
On August 19, 2015, the Federal Ministry of Information, Broadcasting and National Heritage issued a notification of a new Code of Conduct (CoC) for private sector media broadcasters and cable operators in Pakistan. This new code was issued under directions of the Supreme Court during the hearing of a case filed by two journalists seeking "formation of an accountability commission for media in Pakistan."
In fact, this new CoC was prepared by a committee, chaired by former journalist and current special advisor to the Prime Minister, Irfan Siddiqui, formed by the government upon the direction of the Supreme Court in a constitutional petition filed in July 2012 by journalists Hamid Mir and Absar Alam. The petitioners prayed to the court to: inquire and investigate into the allegation against them of being on payroll of a property tycoon and reform the existing CoC of the Pakistan Electronic Media Regulatory Authority (Pemra) for electronic media.
On January 15, 2013, while hearing the petition, the court constituted a commission comprising retired justice, Nasir Aslam Zahid and former senator Javed Jabbar. The commission was mandated to, among its other Terms of References, "consider the feasibility of letting the media adopt a self-regulatory code of conduct, instead of content regulation, in the light of international standards and practices."
The commission completed its task within five months and submitted the report to the apex court on May 31, 2013. The commission recommended to form a task force comprising media specialists to review all media laws, including a new CoC in the context of "new objective conditions" of the media.
In response to the recommendations of the Media Commission, the government formed two bodies: 1) a 9-member task force to review all existing rules and regulations related to media and to suggest amendments; and 2) a committee, headed by Siddiqui, with the mandate to remove ambiguities in CoC for media.
The second committee was constituted by the federal information ministry comprising, in addition to the chairman of President All Pakistan Newspapers Society (APNS), president of Pakistan Broadcasters Association (PBA), president of Council of Pakistan Newspaper Editors (CPNE), Secretary Law, Justice and Human Rights Division and additional secretary of the information ministry.
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Surprisingly, though the committee was an outcome of the petition filed by two working journalists, there was no representation of working journalists, i.e., Pakistan Federal Union of Journalists (PFUJ), in the committee. Even more surprisingly, Pemra, which has the statutory mandate to prepare a CoC, was also not part of the committee.
In June 2015, the Supreme Court of Pakistan ordered the government to "come up with the final draft of CoC" in two days. However, the government failed to produce a consensus CoC until the Supreme Court finally ordered on August 19, 2015 to enforce the draft CoC prepared by the Siddiqui Committee immediately. In compliance, even though the CoC was in a draft form and consensus on its final shape was in the pipeline, the government notified the new CoC on the eve of August 19, 2014.
The entire story underlines the legal genesis of the process of formulation of the CoC as well as its ‘unparented,’ forced legal ownership by the statutorily mandated body, Pemra, and rushed social ownership by stakeholders, such as PBA, APNS and CPNE with PFUJ being a glaring omission.
Pemra, rightly or wrongly, is "solely responsible for regulating the establishment and operation of all broadcast media and distribution services in Pakistan." Section 19 of Pemra Ordinance exclusively authorises the regulator "to devise a Code of Conduct for programmes and advertisements" for its licensees.
The Pemra Ordinance also defines the role and jurisdiction of the federal government, which is limited to "Issue directives to the Authority on matters of policy (Section 05)"; provide seed money for Pemra Fund (Section 14); specify mandatory (ten per cent) programmes of public interest for licensees to broadcast (Section 20); establish Council of Complaints (Section 26); and, approve the rules including Code of Conduct made by the Authority (Section 39).
Nowhere is it mentioned in the Pemra Ordinance that the federal government may or shall make rules for the purpose of the ordinance. However, in a news report immediately after the CoC was notified, a senior Pemra official confirmed the fact that "the Authority was not even made part" of the CoC formulation committee. The entire process was driven by the information ministry through the Siddiqui Committee.
While the representatives of working journalists (the regulated) and Pemra (the regulator) were not part of the birthing process, the formulation and notification of CoC by the information ministry raises serious questions about its legitimacy and legal ownership.
First of all, what is the legal status of a code formulated by a body other than the one statutorily mandated to formulate it? Though the recent notification states that the new CoC will replace the old Pemra CoC, nevertheless, can a code formulated by a non-statutory and non-legally authorised body -- the Siddiqui Committee -- replace a code prepared by a statutorily authorised body -- Pemra?
If the answer to the last question is in the negative, then what is the status of this freshly notified CoC? If Pemra was not part of the process how will it own and enforce it in its true letter and spirit? Moreover, who socially owns this new CoC because working journalists, broadcasters, editors and media owners do not seem to be happy with it?
This leads to the fundamental questions of relevance and effectiveness of Pemra. It is mainly due to Pemra’s inadequacy to deal with the challenges of changing market dynamics, indifference towards the concerns of stakeholders in the market, and ineffectiveness in enforcement of its own regulations upon its licensees. This is evident from the fact that Pemra, a headless body since 2011, has merely acted as a bureaucratic body and took actions against its licensees only on the directions the government (e.g., short-term suspension of licenses of Geo tv and ARY tv and fines on them in 2014).
Moreover, it has failed to digitalise electronic media in Pakistan through the Direct-to-Home (DTH) technology, as obligated before end of 2015. The truth is Pemra has yet to be recognised by all key stakeholders, including working journalists as protector and defender of their interests.
Pemra’s failures and inactions have led to the creation of unduly influential monsters like cable operators, leaving vacuum for other bodies like the Supreme Court of Pakistan and information ministry to step in coercively on issues such as the CoC. In keeping with the precedent, Pemra, which is in effect adopted parent of the new CoC, will find it difficult to get it enforced.
While legality of the new CoC is yet to the certified, its fate is unlikely to be different from its previous incarnations that proved them unenforceable requiring new versions.