Without rules PEMRA’s licence suspension power cannot be delegated, holds SHC

KARACHI: Holding that the powers of suspension of Broadcast Media Licenses (BMLs) contained in section 30 of Pakistan Electronic Media Regulatory Authority (PEMRA) Ordinance 2002 could not be delegated to authority’s chairman or any officials without framing rules, Sindh High Court on Friday struck down all actions taken by the chairman for suspension of BMLs pursuant to delegation of such powers in April 2020.

Announcing the judgment reserved earlier on a petition of Pakistan Broadcasters Association, the court also declared null and void those minutes of 156th PEMRA meeting that using section 13 of the Ordinance had delegated powers of section 30 for suspension of BMLs.

The judgment authored by Justice Muhammad Ali Mazhar, head of the two-judge bench, rejected the objection raised to the maintainability of the petitions questioning the territorial jurisdiction of Sindh High Court.

The bench held that the petition had been moved in a representative form to safeguard and protect the interest of all members of the petitioner.

“In essence, the petition has been filed to challenge the vires of amendment made in the proviso of Section 13 of the PEMRA Ordinance which is applicable across the board,” the court pointed out and added “We do not mull over that challenging the vires of law even in Sindh there is any embargo or bar with regard to the territorial jurisdiction of this court hence we reject this objection and found the petition maintainable in this court”.

The petitioner had requested the court to declare that the amendment appended  to a proviso of section 13 of the PEMRA Ordinance, 2002, vide section 7 of the PEMRA (Amendment) Act, 2007 (Act No.II of 2007) is unconstitutional and illegal.

The petitioner had sought the declaration by means of doctrine of reading down that the discretionary powers under section 13 of the PEMRA Ordinance, 2002 cannot put into effect without enactment of rules to structure such discretion. It had also challenged the decision of PEMRA corresponding to item No.5 of its 156th meeting convened on 24th April, 2020 conferring powers to the chairman PEMRA for suspending the broadcast licenses pursuant to impugned decision.

Faisal Siddiqui, counsel for the petitioner argued PEMRA cannot delegate its powers under PEMRA Ordinance, 2002 without first framing Rules.

Saying that the requirement to frame rules is mandatory, the counsel highlighted the issue is not limited to this particular delegation of power by PEMRA to its chairman. The issue, according to the counsel relates to the interpretation of Section 13 of PEMRA Ordinance as to how any of the powers under the PEMRA Ordinance could be delegated without framing of rules.

Without prejudice to challenge to the vires, the counsel further contended section 13 of PEMRA Ordinance should be read down that no powers under section 13 of PEMRA Ordinance can be delegated without framing of rules. He contended the quasi-judicial power to suspend the license could not be delegated without express delegation of such power of suspension in the phraseology of section 13 of PEMRA Ordinance.

It was further averred by counsel for the petitioner that the PEMRA in its 156th meeting under Item 5, delegated powers to the extent of suspension of a license to the Chairman under sections 30 of PEMRA Ordinance pursuant to section 13 of the Ordinance. Immediately on delegation of such powers, said the counsel, the chairman PEMRA exercised these powers thrice within a short span of time. He further contended unfettered discretionary delegated power is not permissible and such unfettered discretionary delegated power has to be structured either by policy guidelines or rules.

Kashif Hanif, counsel for PEMRA argued section 29 (6) and Section 30 of the PEMRA Ordinance are two independent sections. He said the compliance of section 8 (5) of the PEMRA Ordinance is not mandatory as the non-compliance of section 8 (5) of the Ordinance does not entail any penal consequences. He contended that section 13 of the PEMRA Ordinance was amended whereby the authority was empowered to delegate its power in respect of suspension of licence.

The power of suspension being an interim measure to stop the further violation of directives of the authority or to restrain the deliberate and contemptuous derogation and contravention of law will not amount to exercise of quasi-judicial power, he argued saying as the same will be finally heard and decided by the authority when it comes to revocation and cancellation of the licence for which a right of appeal has been provided under section 30 of the PEMRA Ordinance.