ISLAMABAD:
Geo television
has moved
Pemra, holding
that before
proceeding
on the complaint
of the Ministry
of Defence
the authority
should take
the opinion
of the Council
of Complaints
(CoC) under
the Pemra
law and that
Geo should
be heard on
the merits
of the points
raised in
the complaint
under Section
30(3) of the
Pemra Ordinance.
The application
filed by the
Independent
Media Corporation
(IMC) also
made a reference
to the Supreme
Court’s
January 15,
2013 judgment
passed by
the apex court
in the Hamid
Mir vs Federation
case mentioning
that the authority
becomes incompetent
to pass content
regulations
in the absence
of a chairman
and as presently
there is no
chairman,
the authority
is not complete
and thus cannot
proceed in
this matter.
The Geo application
also pleaded
that three
members of
the authority,
namely Israr
Abbasi, Mian
Shams and
Fareeha Iftikhar,
have shown
their mind
and have repeatedly
announced
to revoke
the Geo channel’s
licences so
they could
not sit in
the authority
as judges
on a complaint
against Geo.
The Geo application
also pleads
that on May
6, 2014, the
lawyer of
Geo, Muhammad
Akram Sheikh,
only submitted
some legal
objections
and is yet
to present
his submissions
on the merits
of the complaint
filed by the
Ministry of
Defence, and
Geo should
be given this
right under
Section 30(3)
of the Pemra
law.
The relevant
parts of the
application
moved by Geo
on April 27,
2014 read:
“1.
Your kind
attention
is drawn to
the order
of the Hon’ble
Supreme Court
of Pakistan
dated 15th
January 2013
passed by
Mr. Justice(reported
at PLD 2013
SC 244), wherein
the Pakistan
Electronic
Media Regulatory
Authority
(“Pemra”
hereafter)
was held to
be incompetent
to pass content
regulations
in the absence
of its Chairman.
Relevant portions
of the judgement
are reproduced
below: “5.
We have earlier
recorded that
at least since
13-5-2011,
Pemra has
no Chairman.
In our order
dated 20-12-2012,
we have also
noted the
serious procedural
challenge
raised by
the petitioners,
who contend
that when
the Content
Regulations
were in the
process of
being made
or when the
same were
adopted and
notified,
Pemra did
not have a
Chairman and
was thus not
lawfully in
existence.
Mr. Kazmi
[counsel for
Respondent
No. 2] contended
that Dr. Abdul
Jabbar was
notified and
was acting
as Chairman
of Pemra.
This contention
is not correct
…”
“6.
Based on the
above, we
are quite
clear that
the Content
Regulations
which were
notified on
25-9-2012
cannot be
construed
as regulations
issued by
Pemra …”
“7.
Mr. Kazmi
then contended
that even
if Dr. Abdul
Jabbar was
not a validly
appointed
Chairman,
the de facto
doctrine,
incorporated
in section
3(4) of Pemra
Ordinance,
would save
all his acts;
and the Content
Regulations
too should
therefore
be deemed
to have been
saved. This
contention
is without
merit. The
statute cannot
be read in
a way which
makes its
most important
and potent
parts such
as the provisions
about the
very composition
of Pemra redundant.
Such an interpretation
of the de
facto doctrine
verges on
utter disregard
for the rule
of law which
is the foundation
of our constitutional
order. …”
2. Therefore
Pemra, as
per the above
clear ruling
of Honourable
Supreme Court
of Pakistan,
in the absence
of a Chairman,
is not validly
constituted
to execute
and perform
functions
of the Authority
as contemplated
by Sections
4 and 6 of
the Pemra
Ordinance
2002.
3. That notwithstanding
the above
cited view
of the Hon’ble
Supreme Court
and without
prejudice
to the legal
objections
taken by Independent
Media Corporation
(Pvt.) Ltd.
(the answering
respondent)
in reply to
the Show Cause
Notice dated
23.04.2014,
it is further
submitted
as under:
A. Proviso
to Section
30(1)(b) of
Pemra Ordinance
requires that:
‘Provided
that in case
of revocation
of a licence
of a broadcast
media, an
opinion to
this effect
shall also
be obtained
from the Council
of Complaints.’
As Authority
has not yet
obtained an
opinion from
the Council
of Complaints,
it is not
allowed by
the statute
to proceed
to revoke
the respondent’s
licence.
B. In addition
to above,
Section 30(3)
of Pemra Ordinance
provides:
’Except
for reason
of necessity
in public
interest,
a licence
shall not
be …
revoked unless
the licencee
has been given
reasonable
notice to
show cause
and a personal
hearing.”
It may be
noted that
Pemra has
not yet heard
the answering
respondent
on merits
of the complaint.
During the
hearing dated
06.05.2014,
Muhammad Akram
Sheikh, senior
advocate Supreme
Court, raised
several preliminary
legal objections,
including
the contention
that in the
absence of
the chairman,
Pemra was
not lawfully
authorised
or empowered
to hear the
instant complaint.
Having considered
those preliminary
objections,
Pemra sought
the opinion
of the Ministry
of Law on
the legal
objections
raised. Akram
Sheikh did
not submit
response on
merit of the
complaint.
C. Now that
the authority
has received
the legal
opinion from
the Ministry
of Law, it
must comply
with Section
30(3) to afford
the answering
respondent
the opportunity
to submit
its reply
to the complaint
on merit.
It is thus
that the Authority
is requested
to give the
answering
respondent
reasonable
time for right
of hearing,
without which
any decision
taken by the
Authority
will be legally
flawed and
an abuse of
power.
D. Lastly,
in the interest
of justice
and fair play,
we wish to
place on record
the undisputed
fact that
the following
three members
of the Authority,
namely Israr
Abbasi, Mian
Shams and
Fariha Iftikhar,
have disqualified
themselves
from sitting
as a judge
and to adjudicate
on the issue
in question
because they
have repeatedly,
through press
conferences
and also through
various live
interviews
on different
rival TV channels,
vowed that
they would
revoke Geo
News licence.
All these
three members
are not only
biased but
hostile, they
have each
prejudged
the matter
even before
the meeting
of the Authority
and hence
they are not
entitled to
participate
in the discussion,
cast their
votes and
thus decide
this matter.
Any decision
taken against
the answering
respondents
that is based
on the votes
casted by
these three
biased and
hostile members
shall not
be sustainable
under law.
As a result
of their hostile
interviews
and expression
of their hatred
and anger
against answering
respondent,
the said members
have rendered
themselves
incapacitated
from taking
any part in
relation to
the complaint
as they have
prejudged
the fate of
the complaint.
It is the
duty of the
Authority
to exclude
these members
from the proceedings
to ensure
that the right
of the answering
respondents
to a fair
trial as guaranteed
under Article
10A of the
Constitution.
E. Therefore,
the ex-officio
and other
members of
Pemra are
kindly requested
to restrain
Pemra from
initiating
any actions
without referring
the complaint
to the Council
of Complaints
where the
answering
respondent
is yet to
make submissions
on merits.
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