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Petitioner: Messrs Labbaik (PVT.) LTD VS Respondent: Federation of Pakistan and 2 others
Court Name: Sindh High Court Judge(s): Kausar Sultana Hussain Title: Messrs Labbaik (PVT.) LTD vs Federation of Pakistan and 2 others Case No.: M.A. No.04 of 2021 Date of Judgment:2021-10-25 Reported As: 2023 CLC 398 Result: Order accordingly
JUDGMENT
JUDGMENT KAUSAR SULTANA HUSSAIN, J. Succinct facts relevant for the disposal of instant appeal, filed under Section 30-A of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 as amended by Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007 (hereinafter referred to as the Ordinance, 2002") are that appellant M/s. Labbaik (Pvt.) Limited (known as Bol Media) which is a private limited company- engaged in television broad casting of news through Bol TV has challenged the "order dated 22.01.2021" of respondent No.2 i.e. Pakistan Electronic Media Regularity Authority (hereinafter referred as "PEMRA") whereby respondent has suspended the broadcast satellite TV Channel license of the appellant under Section 30 of Ordinance 2002 without hearing the appellant for a period of 30 days with -immediate effect and has imposed fine of Rupees One Million under Section 29 of the Ordinance 2002. The impugned order dated 22.01.2021 is reproduced hereunder for quick reference:- "Therefore, in the light of the above, the competent authority, while exercising powers conferred under Section 30 of PEMRA Ordinance, 2002 as amended by PEMRA (Amendment) Act, 2007 duly delegated under Section 13 to the Chairman by the Authority in its 156th meeting, has made the following decision: i. Broadcast Satellite TV Channel licence No.10-2 (26) STV-2005 dated January 23, 2008 conferred upon to M/s. Labbaik (Pvt.) Ltd. (BOL News) is hereby SUSPENDED with immediate effect for a period of thirty (30) days starting from January 22, 2021. ii. Fine to the tune of Rupees One (01) Million payable within thirty (30) days is also imposed under Section 29 of PEMRA Ordinance 2002, as amended by PEMRA (Amendment) Act, 2007, on M/s. Labbaik Pvt. Ltd. (Bol News).
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iii. M/s. Labbaik Pvt, Ltd. (BOL News) is also directed to constitute In-House Editorial Committee, share its details with the Authority and ensure compliance of PEMRA laws in order to sift unwarranted content before telecast. This issues with approval of the competent authority". 2. As obvious from the impugned order, the license of the appellant was suspended for 30 days, a fine of Rupees One Million was imposed payable within 30 (thirty) days and also directions were given for the Constitution of in-House Editorial Committee with certain conditions to be complied with. Such order was in consequence and subsequence to the show cause notice issued to the appellant vide letter dated 13.01.2021 addressed to the Chief Executive Officer, M/s. Labbaik (Pvt.) Ltd. (Bol News) signed by the Deputy General Manager, (Operations-Broadcast Media), PEMRA. The appellant submitted reply to the said show-cause Notice vide letter dated 19.01.2021. Through present appeal, appellant has prayed that impugned order dated 22.01.2021 passed by the respondent No.2 and issued by the respondent No.3 (Umair Azim D.G., Manager Operation Broadcast-Media-1 PEMRA) be declared illegal, arbitrary,. capricious, mala fide, coram non judice, without jurisdiction, violative of Articles 10-A, 18, 19 and 25 read with Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as Constitution) and also violative of Section 24-A of the General Clauses Act, as such said impugned order dated 22.01.2021 be set aside and further prayed for grant of permanent injunction restraining the respondents, their officers, subordinates, agents, representatives or any other person acting under or through them from taking any action against the appellants on the basis of the impugned order. Further, better, consequential and/or further relief as appear just and proper to this Court was also sought along with cost of the appeal. 3. On 25.01.2021, this Court after hearing the learned counsel for the appellant at some length had ordered to issue notice to the respondents and in the meanwhile the operation of impugned order dated 22.01.2021 was suspended. 4. I have heard the learned counsel for the parties at length, perused the record and the judgments relied on by the learned counsel for the parties in support of their respective contentions. 5. The learned counsel for the appellant Mr. Abid Zuberi, has argued that the impugned order dated 22.01.2021 is liable to be set aside on all or any of the following factual and legal grounds:-- i. That the impugned order is violative of Articles 18, 19 and 25 of the Constitution and ultra wires of the PEMRA Ordinance, 2002. It is also in violation of Article 10-A of the Constitution as no opportunity of hearing was provided by the Authority and no defense of the appellant is referred to in the impugned order. It is also in violation of right to fair trial by an impartial forum as provided in Article 10-A of the Constitution. The learned counsel for the appellant has relied on the judgment passed by the Hon'ble Supreme Court of Pakistan in case of MFMY Industries Ltd. v. Federation of Pakistan and reported in 2015 SCMR 1550 (relevant page is 1567) and PLD 2020 Sindh 733 (relevant page is 738); ii. That under Section 8(5) of the Ordinance 2002 all orders, determinations and decisions of the PEMRA shall be taken in writing and shall identify the determination of their chairman and each Member separately, as such impugned order fails to adhere, to the requirements of such proviso as the separate order of each member has not been identified therein. He relied on the judgment of learned Lahore High Court reported in PLD 2019 Lahore 486; iii. The learned counsel for the appellant has further argued that the power of delegation under section 13 of the Ordinance cannot be stretched so as to delegate quasi-judicial power specially the power to suspend emanates from the power to revoke or cancel which is expressly prohibited under Section 13 of the Ordinance itself; the quasi-judicial power of the authority cannot be delegated to any person or official of the respondent No.2, hence the order which culminated in the impugned order is illegal and in violation of law.
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iv. It is further argued that the law requires that before averting to section 30, the authority must advert to section 29 of the Ordinance, hence by using both powers simultaneously, the respondents have acted illegally and in violation of settled law. In support of his contention the learned counsel for the appellant has relied on the judgments reported in PLD 2016 SC 637 and 2020 SCMR 1822 (relevant page is 1839 and 1840, para. 19). v. Mr. Zubairi, the learned counsel for the appellant has further argued that the impugned order is in violation of section 24-A of the General Clauses Act, the same is passed in a mechanical/pre- determined manner without consideration of the contentions of the appellant and is non-speaking order. vi. Per learned counsel for the appellant; the impugned order is in violation of injunctive order dated 16.09.2020, passed by the Hon'ble Peshawar High Court in Writ Petition No. 3937-P / 2020. vii. He further argued that the impugned order passed on the false allegation that appellant has been in violation of Hon'ble Supreme Court Order in suo motu case No. 28/2018 although such order was passed regarding sub-judice matters in the Court, whereas appellant through its aired program dated 12.01.2021 has only discussed the scope and administrative functions of the Supreme Judicial Council, which comes within the ambit of Article 19 of the Constitution and such right is guaranteed by the Constitution. It was further averred that appellant did not violate Article 68 of the Constitution as the discussion was pertaining to the administrative functions of the Supreme Judicial Council. viii. It is argued that entire license of appellant has been suspended though the allegation is against one episode of one program, moreso no opportunity is afforded to the participants of the discussion to present their case. ix. It is contended further that the impugned order was passed in haste without giving due consideration to the facts put forth by the appellant in writing to the respondent. Contents of the decision make it clear that contentions of the appellants have been ignored and not been rebutted by the respondent No.2. x. Per learned counsel for the appellant, the impugned order passed on the basis of self- determination and assumptions, there is no truth in allegations as such order tantamount to excessive use of power and is in violation of the Constitution and PEMRA laws. 6. Mr. Kashif Hanif, learned counsel appearing on behalf of respondents Nos.2 and 3 did not file any written reply, although he filed a statement dated 15.02.2021 to answer certain queries made by this Court, however, he relied mainly upon the contents of show cause notice dated 13.01.2021, impugned order dated 22.01.2021 and also argued the matter at length before this Court, crux of impugned order and the arguments advanced by the learned counsel for the respondents are delineated as under:- i. That in response to show cause notice dated 13th January, 2021, authorized legal representative of the company (M/s. Labbaik Pvt. Ltd) appeared on 20th January, 2021 for personal hearing and also submitted written reply to the show-cause notice (SCN). ii. That in the reply to SCN M/s. Labbaik (Pvt.) Ltd., denied the allegations stipulated in the SCN and took instance that the program was aired with positive intention and this comes within the ambit of right of freedom of speech and access to right to information under Articles 19 and 19-A of the Constitution as such the program was in accordance with the PEMRA laws as well as directions given by the Supreme Court of Pakistan, however, per respondents, in the entire reply they have neither mentioned a single section of PEMRA Ordinance or Rules nor any judgment of Hon'ble Supreme Court or Hon'ble High Court or their relevant extracts. iii. That it is the duty of PEMRA to protect the right of freedom of speech as provided in Article 19 of the Constitution but at the same time the said Article is also confined to the reasonable restrictions as imposed by the Constitution and the law.
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iv. That the contents of such program contains a scurrilous attack upon the Hon'ble Chief justice and other Hon'ble judges of the Lahore High Court. The language and comments of program hosts were intended to disrespect the Hon'ble Judges of the Lahore High Courts, Lahore. The aspersions were leveled against the judiciary and its judges which resultantly would affect the faith and confidence of the general public in the highest judiciary, leading to demoralization, impairment and obstruction of the administration of justice by the Courts. v. That the right of freedom of speech is without any restriction worldwide, especially in the UK and USA. However, that is not the case in Pakistan where the right of freedom of speech is conditional and restricted by the Article 19 of the Constitution of Pakistan. No anchor, host or journalist can be permitted to telecast any program through which they intend to scandalize the Hon'ble Courts and the judiciary as a whole or make aspersions, personal remarks or allegations against the judiciary or judges. vi. That it is pertinent to mention that the Article 66 of the Constitution grants privilege to members of the parliament for open discussion, and no member shall be liable to any proceeding in any Court in respect of anything said in the Parliament. However, such privilege is subject to Constitution which relates to Articles 68, 114 and 204 of the Constitution of Pakistan. vii. That while reading the Article 68 of the Constitution, it is easy to say that the members of parliament have a right to discuss all matters in the parliament except the conduct of judges. Considering this notion, how can the media consider it their right to discuss the conduct of judges under Article 19 which is even subject to reasonable restrictions. How can any host, anchor, guest or TV channel exonerate themselves from this Article and consider themselves above the Constitution and its forum. viii. That despite the referred judgments and laws laid down by the superior Courts, and having explicit restriction in Article 19, read with Article 68 of the Constitution regarding the discussion about the conduct of superior judges, M/s. Labbaik (Pvt.) Ltd. (Bol News) in the referred program has intentionally violated the said Article of the Constitution as well as Electronic Media (Program and Advertisements) code of conduct 2015 and the order of the Hon'ble Supreme Court of Pakistan passed in suo moto case No. 28 of 2018 dated September 12, 2018, communicated to all satellite TV Channel licensees including Bol News on various occasions. ix. That in the reply submitted by M/s. Labbaik Pvt. Ltd (Bol News) it did not show any regret or remorse, nor apologized regarding the contents aired on January 12, 2021 in its program "Tajzia". x. That it is clear that Bol News has violated section 20(c) & (f) of PEMRA Ordinance, 2002 as amended by PEMRA (amendment) Act 2007, Rule 15(1) of PEMRA Rules 2009: Regulation 18 (c) and (g) of PEMRA (Television Broadcast Station Operations) Regulations 2012; Clauses 3(1) (j), 3(1), 4(10), 5, 17 & 23 of Electronic Media (Programs and Advertisements) Code of Conduct 2015. xi. That 1 prior to PEMRA (Amendment) Act, 2007; proviso of Section 13 of the Ordinance did contain word "suspend" alongside words 'grant', revoke and cancel', however, the word 'suspend' was omitted through PEMRA (Amendment) Act, 2007 which clearly denotes that power to suspend could be delegated after the passage of-Amendment Act. xii. That suspension is not quasi-judicial power rather it is an interim measure of immediate nature. xiii. That section 13 of the Ordinance is directory in nature and not a mandatory one. xiv. That statement dated 15.02.2021 together with its enclosures provide a clear response to various queries and ambiguities. 7. Upon hearing arguments of the counsel of both sides and perusal of record and relevant laws, it reveals that the learned counsel for the appellant challenged the impugned order mainly on three premise (1) it is against the PEMRA Ordinance, PEMRA Rules/Regulations and General Clauses Act, la) the same is in contravention to various Articles of the Constitution of Pakistan and (3) No reasonable time was given to submit a meaningful written reply to the 'Show Cause Notice' nor any
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opportunity of hearing was afforded before the "Authority". Learned counsel for the respondents conversely opposed the instance of the counterpart arguing that the impugned order passed by the functionaries of PEMRA is strictly in accordance with applicable laws, in conformity with the Constitution and that there is no infirmity or short coming in the procedure as alleged by the appellant. 8. It deemed appropriate for the disposal of instant appeal that each aspect of the case as agitated by the appellant is discussed in sequence while incorporating input of both the sides. 9. Learned counsel for appellant raised objection that under subsection (5) of section 8 of the Ordinance "All orders, determinations and decisions of the Authority' shall be taken in writing and shall identify the determination of chairman and each member separately, in support of his submission he placed reliance upon PLD 2019 Lahore 486. In order to elucidate legal aspect, section 8 of the Ordinance is reproduced as under:- 8. Meetings of the Authority, etc. (1). The Chairman or, in his absence, the member elected by the members for the purpose, shall preside at a meeting of the Authority. (2) One-third of the total members shall constitute a quorum for meetings of the Authority requiring a decision by the Authority. (3) The members shall have reasonable notice of the time and place of the meeting and the matters on which a decision by the Authority shall be taken in such meeting. (4) The decisions of the. Authority shall be taken by the majority of its members present, and in case of a tie, the member presiding a meeting shall have a casting vote. (5) All orders, determinations and decisions of the Authority shall be taken in writing and shall identify the determination of the Chairman and each member separately, 10. From bare reading of above section, it is abundantly clear that this section deals with meeting of the 'Authority' which consists of Chairman and twelve members, quorum for meeting, notice and place of meeting, decisions taken in the meeting, casting vote of the Presiding Member and identification of the determination of each participating member. It has to do nothing with the day to day affairs of PEMRA and issuance of show cause notice. Hence instance taken and arguments advanced by the learned counsel for the appellant on this point are neither relevant nor valid. 11. It is imperative to discuss as to whether section-13 of the Ordinance is applicable in this case and whether delegation of certain powers to Chairman by the "Authority" are in consonance with the spirit of the Ordinance or otherwise. For the ease of convenience section-13 of the Ordinance is copied here under:- 13. Delegation.---The Authority may, by general or special order, delegate to the Chairman or a member or any member of its staff, or an expert, consultant, adviser, or other officer or employee of the Authority any of its powers, responsibilities or functions under this Ordinance subject to such conditions as it may by rules prescribe: Provided that the delegation of such power shall not include the power to grant, revoke or cancel a broadcast media or distribution service licence except Cable TV. 12. It is crucial to notice that in the proviso of section 13 of the Ordinance prior to Amendment Act 2007, word 'suspend' was occurring making its mandatory for the functionaries of PEMRA to refer the matters relating to grant, suspend, revoke, or cancel a broadcast license to the 'Authority' as these powers could not be delegated by the "Authority" to any person within the meanings and spirit of section-13 of the Ordinance. However word 'suspend' was conspicuously omitted through "Amendment Act, 2007 making it lawful for the Authority to delegate the powers 'suspend' a broadcast media or distribution service license except cable TV to PEMRA functionaries. For ready reference proviso of the section 13 prior to Amendment Act, 2007 is copied here:-- "Provided that the delegation of such power shall not include the power to grant, suspend, revoke or cancel a broadcast license."
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13. It is apparent that through Amendment Act, 2007 word 'suspend' was omitted by the legislature making its intent lucid that such power could be delegated, leaving no ambiguity whatsoever as such delegation cannot be termed as quasi-judicial or non-delegable. Now the question arises whether such powers were actually delegated by the "Authority" to the Chairman or not and whether such delegation, if made, was in accordance with law or otherwise, here I would refer to the statement dated 15.2.2021 (and its enclosures) filed by the learned counsel for the respondents Nos. 2 and 3 in response to certain queries made by this Court. The Annexure "C" attached with the statement referred to above are the Decisions of Authority's 156th meeting circulated under its reference No PEMRA-1(2)/Secy/2020/156th dated, 24th April, 2020 wherein at serial No.5 following decision was made:- 5. "Delegation of Powers to Chairman under section 13 of PEMRA Ordinance, 2002 (Amendment Act, 2007) for suspension of Broadcast Media licenses. 14. The "Authority" unanimously, under section 13 of PEMRA Ordinance, 2002 delegated its powers vested under section 30 of PEMRA Ordinance, 2002 to the extent of suspension of a license; which shall be exercised by the Chairman in case a licensee violates any provision of the ordinance, the Rules or' regulations or Terms and Conditions of license. After exercising such powers, the chairman shall bring the said action into the notice of the "Authority" in its forthcoming meeting. 15. Subsequently, in its 157th meeting held on 21st May, 2020; draft minutes of 156th meeting of Authority were unanimously approved at serial No.2 of the decisions circulated vide No. PEMRA- 1(2)/Secy/2020/156th, thereby making the decision explicit at their end. However, here point of ponder is that whether the Authority was competent to delegate such powers to Chairman, PEMRA or not. At this juncture, I would seek guidance from the order recently passed by an Hon'ble Division Bench of this Court in C.P No. D-2680 of 2020, authored by my learned brother colleague Mr. Justice Muhammad Ali Mazhar (the then justice of this Court), wherein it was held that:- "The powers of the Pakistan Electronic Media Regulatory Authority vested in Section 30 of the PEMRA Ordinance, 2002 could not be delegated to the Chairman or any other official of PEMRA by dint of Section 13 of PEMRA Ordinance, 2002 for suspension of Broadcasts Media Licenses without framing of Rules. Henceforth, the decision of Authority to this extent conveyed vide minutes of meeting dated 24th April 2020 is also declared null and void. Consequently, all actions taken by the Chairman pursuant to the delegated powers for suspension of Broadcast Media Licenses are strike down." 16. Pondering upon the discussions in the preceding paragraph reveals that viewpoint presented before this Court by the learned counsel for the appellant that delegation under section 13 of the Ordinance cannot be stretched so as to delegate quasi-judicial power specially the power to suspend emanates from the power to revoke or cancel which is expressly prohibited under section-13 of the Ordinance itself; could be termed erroneous interpretation of the statute. It is evident from above discussion that (1) powers to suspend a broadcast media can be delegated by virtue of PEMRA (Amendment) Act, 2007 and that (ii) such powers were delegated to the Chairman PEMRA by the Authority in its 156th meeting and confirmed in its 157th meeting were without the force of rules as such it was unlawful exercise of the powers vested in the "Authority" having no effect thus void. 17. Learned counsel for the appellant submitted that the law requires that before adverting to section-30, the Authority must advert to section 29 of the Ordinance and that using, both powers simultaneously, respondents have acted illegally. Here I am of the considered opinion that there is no such bar put by the Ordinance 2002: section-29 deals with power to authorize inspection, in subsection (6) of section-29, it is prescribed that The Authority may, after the license has been, given reasonable opportunity to show cause, impose fine up to one million rupees on a licensee, who contravenes any of the provisions of this Ordinance or the rules or regulations made there
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under". However, record available before this Court could not show any such order of fine passed by the Authority itself or any authorization conferred upon to Chairman, PEMRA by the 'Authority' to exercise powers under subsection (6) of section-29 to impose fine, also statement submitted by the learned counsel for the respondents is silent about this aspect. In such circumstances exercise of powers under ibid proviso of law seems without the force of law until rules under Section 13 are framed and subsequently delegation as per Ordinance, 2002 is conferred upon Chairman or any other person as defined in such Section, accordingly imposition of fine appears an injudicious exercise by the Chairman, and is not maintainable. 18. It was also expounded that the impugned order is in violation of section 24-A of the General Clauses Act being a non-speaking order. I don't find. any substance in such averment as impugned order provide ample reasoning and rationale for passing such order except inexplicable application of subsection (6) of section 29 of the Ordinance and erroneous application of section 30 on the ground of non-framing of rules under section 13 of the Ordinance, 2002. So far as passing of impugned order during the pendency of injunctive order dated 16.09.2020 said to have been passed by the Peshawar High Court in writ petition, suffice is to say that respondents passed impugned order on a fresh cause of action, in essence an injunctive order cannot be stretched to an extent to cover all fresh contraventions of laws arising out from fresh cause(s) of action(s). 19. The averment by the appellant's learned counsel that the impugned order is violative of Articles 10-A, 18, 19, 19-A and 25 read with Article 4 of the Constitution and further that the appellant's discussion pertained to the…
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