Roar of Proposed Super Regulator in Media

IT sounds well to have a new legal and regulatory framework to reform any sector of the economy or any institution for general welfare of the public, to respond to technological advancements and compete in the global community. But it gets spoiled, when such measures are taken without following due process as followed in the democratic jurisdictions. In such situations, negative assertions of stakeholders are quite obvious.

Such is the case with the formation of a so-called superregulator in media through Pakistan media Development Authority (PMDA) Bill 2021 by abrogating multiple laws [like The Press Council Ordinance 2002; The Press, newspaper, news Agencies and Books Registration Ordinance 2002; the Pakistan Electronic Media Ordinance 2002 as amended PEMRA Amendment Act 2007; the Motion Pictures Ordinance 1979 and the newspaper Employees (Condition and Service) Act 1973].

Since the inception of private media in Pakistan, its pivotal role is evident to protect national and strategic interests at various levels. Unveiling mega-corruption scandals in national organizations (like Pakistan Steel Mills, PIA, NICL, and so on.) is deemed a landmark achievement of the media. It immensely contributed to promote the positive image and foreign policy of Pakistan. But in the ongoing situation, there are two main issues in circulation regarding proposed law, the need for such legislation, and the future outlook of the media sector based on this bill. If we examine other jurisdictions, the concept of a super regulator in the media, broadcasting and telecom sector is not new. Countries like the UK, Australia and Canada already have such organizations with more powers and extent of jurisdiction. So, following in the footsteps of these countries, the major need to form this new regulator was felt due to rapid technological developments, new mechanisms of information and to protect social values as well as national interests of the country. Scattered, un performing and numerous regulators are also major reasons to consider this measure. Outdated regulatory frameworks in print, electronic and more importantly, the absence of a digital media regulator, impelled the forming of this powerful organisation. It is also alleged that the failure of self-regulations by the media houses is the major reason to have such a type of regulator.

It seems hasty to form such a watchdog without appropriate input from stakeholders and public consultation, which turned this move suspicious. In the critical perspective, PMDA is an attempt to bring digital media under a regulatory regime to curb fundamental rights, especially-freedom of Speech, Expression and Information, embodied under Constitution in Articles 19 and 20. Where such rights have been granted there are certain restrictions as well to create balance.

Unfortunately, due to technical advancements, rapid growth of online platforms, scattered regulatory regimes and weak judicial enforcement in the country could not allow the forming of a balanced approach. PEMRA, in the absence of any cooperation with other regulators, could not do any solid groundwork to deal with the new phenomena of Over-the-top (OTT) media services, illegal Web TVS, fake news websites and social media accounts. Mobile and broadband users are on rise in Pakistan and have touched 185 million mobile and 104 million broadband users. The capacity of PEMRA is also in question to deal with more than 114 channels, 258 FM radios, 6 mobile TVS, 12 IPTVS and 4026 Cable TVS. The inder-performance of the Press Council of Pakistan and Audit Bureau of Circulation in dealing with 1672 certified newspapers is a major reason too.

In this situation, it is needed to find whether proposed law will respond to all these issues or is just window dressing. As per the PMDA bill preamble, all sorts of media, whether print, electronic or digital, are going to converge under one roof with the aim to make Pakistan a main global centre in terms of information flow. It has been claimed the PMDA will be an effective as well as transparent regulator to ensure the constitutional rights of all.

Promotion of competition in media and to stimulate national culture globally is the part of the object statement. It has also been planned to ensure ease of doing business in media along with inexpensive and quality services. It has been committed to develop media in a new spectrum with a developmental mindset. But in reality, the planned regulatory governance is not following the right approach. As per Section 6 of the PMDA Bill, the authority will be constituted of 11 members (including Chairman), appointed by the Federal Government of Grade 21/22 officers of the Information Group. Such a model is in question, why another traditional bureaucratic setup has been proposed rather than having professionals with new vision to develop media on modern lines. Presence of five ex-officio members (Information Secretary, Interior Secretary, Chairman PTA, Chairman FBR, Chairman Competition Commission of Pakistan) will further strengthen such a typical approach.

Even six appointments of eminent citizens by the Federal government have not been made clear regarding qualification and ‘fit and proper’ criteria. As per law, there is nothing new in terms of operations and enforcement. Section 14 allows the appointing of three full-time executive directors of grade 20 and above from the Information Group officers to head electronic, print, and digital directorates. It shows the new regulator will be a bureaucratic club to promote a certain agenda rather than having specialist minds to develop this sector.

In this situation, it is questionable how conflict of interest will be enforced as mentioned in Section 10. It will also make it a dubious platform for issuing licenses, registration certificates (as new arrangement) and nocs as required in Section 19. Under proposed Section 27, Media Complaints Council (MCC) and Advisory Commission for appointments in MCC are highlighted as reformative steps in terms of enforcement by following the Comply and Explain approach. However, Section 28 allows prosecuting wrongdoers without notice, against the basic principle of law. Even in sections 31 and 40 in terms of punishments no levels or types of punitive arrangements have been suggested and single handedly it dealt with the punishment of up to three/five years as well as fine up to Rs 25 million. Under section 35 formation of tribunal containing 10 members make it a distinguishing law but it appears more a quasi-judicial platform where only chairman is from legal stream and other members will be appointed by the president on the recommendation of Advisory Commission. As per section 36, it is also pertinent that the tribunal will act as the appellate authority of orders pronounced by MCCS or authority, without the supervision of the superior judiciary. Exclusion of such courts makes this law more debatable. These serious questions compel a rethink of this proposed law regarding the governance, capacity, and jurisdiction of the PMDA. Overall, the new legislation strongly push one to believe there is an attempt to produce something new with the same conventional, and outdated arrangements without any out-of-box solutions.

The writer is an Advocate High Court, and specialized in Corporate and Financial Law from the University of Liverpool, and can be reached at mnav.chohan@gmail.com