Dated: 10th November 2015
Subject: Expression of concern regarding PEMRA’s SMS on coverage of Mina Tragedy
Media Matters for Democracy is a non profit working to strengthen freedom of expression and information in Pakistan. We believe that a liberal, professional media industry is the cornerstone of a progressive, democratic society. We are working for progressive media regulation and policies and hope to contribute towards policy reform in the sector to ensure that the national media is strong, independent and able to responsibly perform its social and democratic function
This is to bring to your attention, that on 30th September 2015, an SMS sent to top management of TV channels noted “Some channels are airing programmes on Mina accident and indirectly [accusing] Saudi Arabia of mismanagement. They need to be reminded that Article 19 of the Constitution restricts comments that may affect relations with friendly countries”. Media reports noted that this SMS was sent by Pakistan Electronic Media Regulatory Authority (“PEMRA”). It was also noted that this is the second time that such a notice has been sent regarding media reporting on Saudi Arabia. It is requested that PEMRA may kindly clarify as to whether the said SMS was sent by it to top management of various TV channels and in what capacity did it do so.
It is submitted that the said SMS refers to Article 19 of the Constitution of Pakistan. However PEMRA is an executive and not a legislative or judicial organ and as such it does not have the prerogative to interpret constitutional articles, especially fundamental rights. The exclusions envisaged under Article 19 of the Constitution of Pakistan operate through “reasonable restrictions imposed by law”. Such law has to be made by the legislature and both the law and constitution has to be interpreted by the judiciary. By asking the channels to arbitrarily restrict comments on Saudi Management on Mina Tragedy, PEMRA has sought to interpret the constitution and has gone beyond its legal mandate given to it under PEMRA Ordinance 2002. The PEMRA Ordinance 2002 does not contain any provision that empowers PEMRA to restrict speech in anyway on grounds of friendly relations with foreign states.
It should be noted that the Mina Tragedy has affected hundreds of Pakistani families and at the time of the issue of this notice, a large number of Pakistani families were still striving to gain access to information regarding the family members and loved ones who had become victims of the stampede. The complete and unrestricted coverage of the tragedy, including the questions being raised on the role played and facilities provided by the Saudi Management were thus a matter of supreme public importance and restricting channels to raise these important questions stands to have a direct impact on those Pakistanis who have suffered from this tragedy.
Additionally, the process adopted by PEMRA to issue this notice remains questionable. The notice was not issued through a formal letter or order of the Authority. The informal and unconventional medium of SMS was chosen to deliver the message. While the process of appealing against a formal order of the Authority is clear and defined, the process of formal reactions on this SMS are not clear. The SMS has not been uploaded and shared on PEMRA’s website where other orders of the Authority are regularly shared. Both the process of using an SMS and of keeping if out of official, public record of issued orders raise questions and doubts about the transparency of the process.
We want to understand how and why the decision to issue this notice was taken, particularly
- Was the said SMS sent by PEMRA?
- Under what law did PEMRA seek to impose restriction on freedom of speech and expression as guaranteed by the Constitution; and
- Why an informal notification process was chosen for the said notice?
It is our view that in the event that the SMS was sent by PEMRA, it has overreached its authority in issuing the said SMS notice and has in the process impeded the free flow of information – in particular information of public importance- to the citizens of Pakistan. It is therefore requested that an early reply may be given to the instant letter.
Dr. Faisal Bari
Chairman of the Board
Media Matters for Democracy