Conforming to the Constitution — media decentralisation
The purpose of a federal republic is to empower the people by decentralising and diffusing the state’s powers
The writer is a barrister-at-law and former advocate general of Sindh. He tweets @zamirghumro
The purpose of a federal republic is to empower the people by decentralising and diffusing the state’s powers so that a life of its own could be created in various areas and strata of society. Apart from having a three-tier government system at federal, provincial and local government levels, the Constitution of Pakistan further enjoins upon the state to decentralise the government administration and media under Article 37(i) and Article 159 of the Constitution.
Article 159 mandates the federal government to entrust the functions of broadcasting and telecasting to the provinces and as a result the provinces would by law regulate the broadcasting and telecasting functions.
The article further binds the federal government not to impose any conditions on the provincial governments with regard to regulating the matters of broadcast or telecast such as curbs on content or freedom of expression except finance. It further binds the federal government that any federal law with respect to broadcasting and telecasting shall be such as to secure the interests of the provinces in broadcasting and telecasting functions. And lastly, if any question arises whether any conditions imposed on any provincial government regarding telecasting and broadcasting are lawfully imposed or whether any refusal by the federal government to entrust functions is unreasonable, the question shall be determined by an arbitrator appointed by the Chief Justice of Pakistan.
Thus after entrusting the broadcasting and telecasting powers to the provinces, the Constitution also creates a separate dispute-resolution mechanism in the shape of arbitrator appointed by the Chief Justice of Pakistan. This is the major provision about media in Pakistan but it has been seldom adhered to. Neither have the provinces sought entrustment of functions in order to issue licences for new TV, radio, internet and other broadcasting and telecasting channels against fees as enjoined by the Constitution nor has a federal law been enacted to secure such effect.
Provinces were not consulted with regard to the Pemra Ordinance, 2002 or when subsequently amended and that law doesn’t secure the ends of Article 159 of the Constitution. Being in conflict with the Article 159, it’s violative of the Constitution.
With the abolition of the concurrent list, the print media is wholly the domain of the provinces from the declaration of newspapers and magazines to their ABC and Media list though provinces have not enacted such law. The Sindh Cabinet had approved a bill to bring ABC and media list in its domain as per Constitution which was pending for talks with all stakeholders, but it lapsed due to dissolution of the provincial assembly.
The legal regime of media in Pakistan under the Constitution is highly decentralised and horizontal rather than vertical but contrary to constitutional commands it is being wholly controlled by the federal government to the total exclusion of provinces.
Democratisation of media means sharing of constitutional power with provinces as they are the major stakeholders under the Constitution. How the provinces could be excluded from the regulation of media when the Constitution says that any federal law would be aimed at securing the purpose that provinces have required say and powers.
The print media under the Constitution being totally in provincial domain, the electronic media should be more than 80% provincially managed as the Constitution enjoins. This will empower the journalists, businesses, civil society, professions, vocations, districts, local councils, sports organisations, tourism bodies, cultural and literary organisations to establish their own local channels with small money and provide information and entertainment at district and local levels. This will strengthen people at local levels who will create their own vibrant educational and cultural life. In most of the developed countries local channels are more popular and disseminate information and entertainment. They also break monopolies over media and information as under the present vertical regime, only the wealthiest can get licence for a channel which then paves the way for monopoly and control of media by few hands. This results in suppression of freedom of speech and expression as few could be controlled and managed easily. Article 18 of the Constitution ensures freedom of business, trade, profession and occupation subject only to regulation by a licence. It doesn’t allow the government to discriminate among citizens by promoting monopolies or centralising this power. Rather the Constitution enjoins to decentralise the government administration for the convenience of the Public under Article 37(i).
Media freedom is jeopardised as the legal regime of media does not conform to the Constitution. We may have discussions and debates to pay lip service to the freedom of media but unless the whole regime is conformed to the Constitution and is made democratic, it could not serve the purpose. Media organisations or citizens must have right to seek licence from any provincial government or the federal government depending on the ease of terms and conditions.
Decentralising powers to the provinces would also pave the way for media freedom as provincial governments would be less amenable to media curbs and competition would make the media more democratic, open and free. It’s very surprising that the provincial governments have not exercised this vital power for the last forty-five years. The unconstitutional set-up of telecasting and broadcasting could not be perpetuated any more.
Diffusion of media power at provincial and local level, as enjoined by the Constitution, would give unhindered access to the people to information and would greatly democratise the media and society. It would promote free speech and expression as enjoined under Article 19 of the Constitution and the people of Pakistan will be highly connected by having swift and cheap communication within their own local areas. For example, organisations like the KMC, the CDA or universities and district governments or local councils could have their own part or full-time media channels to inform the public about their activities. Journalists or groups or syndicates of journalists or the Pakistan Federal Union of Journalists could also establish their own channels for the purpose of dissemination of information, etc. Centralising the power of media and information in few hands is to deny the people their right to freedom of speech so important for the body and soul of the nation.
Published in The Express Tribune, October 27th, 2018.
Article 159 mandates the federal government to entrust the functions of broadcasting and telecasting to the provinces and as a result the provinces would by law regulate the broadcasting and telecasting functions.
The article further binds the federal government not to impose any conditions on the provincial governments with regard to regulating the matters of broadcast or telecast such as curbs on content or freedom of expression except finance. It further binds the federal government that any federal law with respect to broadcasting and telecasting shall be such as to secure the interests of the provinces in broadcasting and telecasting functions. And lastly, if any question arises whether any conditions imposed on any provincial government regarding telecasting and broadcasting are lawfully imposed or whether any refusal by the federal government to entrust functions is unreasonable, the question shall be determined by an arbitrator appointed by the Chief Justice of Pakistan.
Thus after entrusting the broadcasting and telecasting powers to the provinces, the Constitution also creates a separate dispute-resolution mechanism in the shape of arbitrator appointed by the Chief Justice of Pakistan. This is the major provision about media in Pakistan but it has been seldom adhered to. Neither have the provinces sought entrustment of functions in order to issue licences for new TV, radio, internet and other broadcasting and telecasting channels against fees as enjoined by the Constitution nor has a federal law been enacted to secure such effect.
Provinces were not consulted with regard to the Pemra Ordinance, 2002 or when subsequently amended and that law doesn’t secure the ends of Article 159 of the Constitution. Being in conflict with the Article 159, it’s violative of the Constitution.
With the abolition of the concurrent list, the print media is wholly the domain of the provinces from the declaration of newspapers and magazines to their ABC and Media list though provinces have not enacted such law. The Sindh Cabinet had approved a bill to bring ABC and media list in its domain as per Constitution which was pending for talks with all stakeholders, but it lapsed due to dissolution of the provincial assembly.
The legal regime of media in Pakistan under the Constitution is highly decentralised and horizontal rather than vertical but contrary to constitutional commands it is being wholly controlled by the federal government to the total exclusion of provinces.
Democratisation of media means sharing of constitutional power with provinces as they are the major stakeholders under the Constitution. How the provinces could be excluded from the regulation of media when the Constitution says that any federal law would be aimed at securing the purpose that provinces have required say and powers.
The print media under the Constitution being totally in provincial domain, the electronic media should be more than 80% provincially managed as the Constitution enjoins. This will empower the journalists, businesses, civil society, professions, vocations, districts, local councils, sports organisations, tourism bodies, cultural and literary organisations to establish their own local channels with small money and provide information and entertainment at district and local levels. This will strengthen people at local levels who will create their own vibrant educational and cultural life. In most of the developed countries local channels are more popular and disseminate information and entertainment. They also break monopolies over media and information as under the present vertical regime, only the wealthiest can get licence for a channel which then paves the way for monopoly and control of media by few hands. This results in suppression of freedom of speech and expression as few could be controlled and managed easily. Article 18 of the Constitution ensures freedom of business, trade, profession and occupation subject only to regulation by a licence. It doesn’t allow the government to discriminate among citizens by promoting monopolies or centralising this power. Rather the Constitution enjoins to decentralise the government administration for the convenience of the Public under Article 37(i).
Media freedom is jeopardised as the legal regime of media does not conform to the Constitution. We may have discussions and debates to pay lip service to the freedom of media but unless the whole regime is conformed to the Constitution and is made democratic, it could not serve the purpose. Media organisations or citizens must have right to seek licence from any provincial government or the federal government depending on the ease of terms and conditions.
Decentralising powers to the provinces would also pave the way for media freedom as provincial governments would be less amenable to media curbs and competition would make the media more democratic, open and free. It’s very surprising that the provincial governments have not exercised this vital power for the last forty-five years. The unconstitutional set-up of telecasting and broadcasting could not be perpetuated any more.
Diffusion of media power at provincial and local level, as enjoined by the Constitution, would give unhindered access to the people to information and would greatly democratise the media and society. It would promote free speech and expression as enjoined under Article 19 of the Constitution and the people of Pakistan will be highly connected by having swift and cheap communication within their own local areas. For example, organisations like the KMC, the CDA or universities and district governments or local councils could have their own part or full-time media channels to inform the public about their activities. Journalists or groups or syndicates of journalists or the Pakistan Federal Union of Journalists could also establish their own channels for the purpose of dissemination of information, etc. Centralising the power of media and information in few hands is to deny the people their right to freedom of speech so important for the body and soul of the nation.
Published in The Express Tribune, October 27th, 2018.