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MESSRS LEO COMMUNICATION (PVT.) LTD. versus FEDERATION OF PAKISTAN

Article 19 speech Freedom of expression is the fundamental right electronic Freedom of speech in the context of broadcasting content through electronic media and broader constitutional and democratic values Article 19 of the fundamental nature of speech, objectivity, scope and freedom of expression. Clarification of the Constitution Gives the Right to Freedom of Speech and Expression \\\ Speech spoken means the ability to express or communicate ideas or opinions in spoken words "Expressing" a character in a play through the setting of the Expressions of feeling in the performance of a work of art or a piece of music; Writings, speeches, or acts that express one's thoughts, thoughts, feelings, or opinions; Has the right to communicate and receive knowledge, information, beliefs, ideas. Creative and emotional emotions, whether through speech or written words, theater, dance, music film, a necessary component of the protected right to freedom of speech and expression through a newspaper, magazine drama or book, ideas, culture, history, Opinions, ideas, emotions and art through literature broadcasts, plays and plays are symbols of freedom of expression and expression in a country, [Page 717] A

P L D 2017 Lahore 709 

Before Syed Mansoor Ali Shah, C.J.

Messrs LEO COMMUNICATION (PVT.) LTD. and others—Petitioners

versus

FEDERATION OF PAKISTAN and others—Respondents

Writ Petition No.2581 of 2017, heard on 18th July, 2017.

(a) Constitution of Pakistan—

—Art. 19—Fundamental right of freedom of speech—Freedom of speech in the context of broadcast of content through electronic media and wider Constitutional and democratic values—Nature, object, scope and contours of fundamental right to freedom of speech, explained. Article 19 of the Constitution provides right to freedom of speech and expression. "Speech" means the expression or communication of thoughts or opinions in spoken words. An expression of or the ability to express thoughts and feelings by articulate sounds or a sequence of lines written for one character in a play. "Expression” means the action of making known one's thoughts or feelings; the conveying of feeling in a work of art or in the perfÓrm;ance of a piece of music; writings, speech, or actions that show a person's ideas, thoughts, emotions or opinions. Any dramatic work is, therefore, a symbol of speech and expression. The right to communicate and receive ideas, knowledge, infÓrm;ation, beliefs, theories, creative and emotive impulses by speech or by written word, theatre, dance, music film, through a newspaper, magazine drama or book is an essential component of the protected right of freedom of speech and expression. The broadcast of ideas, culture, history, literature, opinions, thoughts, emotions and art through the medium of plays and dramas signifies freedom of speech and expression in a country, [p. 717] A

The concept of freedom of media is based on the premise that the widest possible dissemination of infÓrm;ation from diverse and antagonistic sources is sine qua non to the welfare of the people. Such freedom is the foundation of a free government of a free people. Any attempt to impede, stifle or contravene such right would certainly fall foul of the freedom guaranteed under Article 19 of the Constitution of Pakistan, [p. 717] B

The nature and extent of this freedom and fundamental right determines the quality and maturity of democracy in a country. Any unwarranted or arbitrary change in the content of the broadcast abridges the fundamental right of the petitioner company under Article 19 of the Constitution. The balance between the fundamental right of freedom of speech and expression on the one hand and public interest on the other, defines the outlook, mindset and tolerance of the people of any country. Nations are enriched by the cross-currents of ideas and thoughts; they progress by expanding their frontiers of freedom; by encouraging plurality and diversity and not by being insular and inward looking. Fundamental rights are the heart and soul of a living Constitution and must at all times be ready to embrace and protect the sensibilities and sensitivities of the people. They must be progressively and purposively interpreted to advance the frontiers of freedom, individual autonomy and free choice. Such vibrance and vitality is the hallmark of a living constitution in a democracy, [p. 718] C

Black's Law Dictionary page 1617-lOth Edn.; Oxford Dictionary; Ajay Gautam v. Union of India and others AIR 2015 Delhi 92; Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others PLD 2016 SC 692; Regina v. Secretary of State for the Home Department, Ex Parte Simms [1999] 3 ER 400 [1999] UKHL 33; Pakistan Tobacco Co. Ltd. and others v. Government of N-W.F.P. through Secretary Law and others PLD 2002

SC 460; Reference No.01/2012 (Reference by the President of Pakistan under Art. 186 of the Constitution of Islamic Republic of Pakistan, 1973) PLD 2013 SC 279 and Hafiz Junaid Mahmood v. Government of Punjab and others PLD 2017 Lah. 1 rel.

(b) Public Interest —

—Concept and meaning of—Public interest or collective community interest was a basket of various public interests, including public morality, public order, public health, national security and foreign policy of the country besides fundamental rights of others—Public interest was the general welfare of a populace considered as warranting recognition and protection and something in which the public as a whole had a stake—Anything was said to be in "public interest" if it contributed to the wellbeing of the general public. [p. 718] D

Black's Law Dictionary page 1617-lOth Edn.; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230 and American Hetitage (R) Dictionary of the English Language, Fifth Edn. 2011, Houghton Mifflin Harcourt Publishing Company 21 Jul. 2017 public-interest rel.

(c) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)—

€

—Ss. 30(2), 20, 27 & Preamble—Constitution of Pakistan, Arts. 19, 199 & Preamble—Power of Pakistan Electronic Media Regulatory Authority to vary conditions, suspend or revoke the licence—Variation of broadcast licence in "public interest"—Determination as to what constituted "public interest" in terms of S.30(2) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 — Prohibition of broadcast media or distribution service operation -— Fundamental right to freedom of speech—Scope—Petitioner company held licence granted by Pakistan Electronic Media Regulatory Authority ("PEMRA") whereby it was allowed to air/broadcast a certain percentage of Indian content—Petitioner impugned Circular issued by respondent PEMRA whereby the terms and conditions of the said license were varied and it was prohibited from broadcasting the Indian content—Contention of the petitioner, inter alia, was that such variance and alteration in its licence was illegal and did not show necessity of public interest in terms of S.30(2) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002—Contention of respondent PEMRA, inter alia, was that the consideration behind impugned Circular was ban placed on Pakistani content by a private Indian Channel, and therefore, the same was done on the principle of

reciprocity—Validity—Reasonable restrictions in terms of Art. 19 of the Constitution, statutory terms and conditions of the license, prohibitions under Ss.20 & 27 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, and requirements of the License of the petitioner as well as the Code of Conduct for TV Broadcasters under the said licence; constituted factors that endangered and jeopardized public interest, especially in the context of free speech and expression-—Principle of reciprocity based on a reaction to a decision of a private Indian channel did not pass test of reasonable restrictions under Art. 19 of the Constitution and question as to whether prohibitions provided under the law or the Licence were attracted in present case, did not arise, as there had been no such act or decision on behalf of the Licensee/petitioner—High Court observed that the only consideration that outweighed freedom of speech under the Constitution was a substantive, tangible, existing and sufficient public interest as described in the Constitution and the law, and refusal to air Pakistani content by a private Indian channel did not imperil or jeopardize any public interest in Pakistan—High Court held that impugned Circular was illegal and unconstitutional and was accordingly set aside, with the observation that PEMRA was free to invoke S.30(2) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 in appropriate circumstances, in order to protect and safeguard public interest— Constitutional petition was allowed, accordingly, [pp. 722, 723] E,H & /

(d) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)—

—S. 30(2 — Constitution of Pakistan, Preamble & Art. 19 — Power of Pakistan Electronic Media Regulatory Authority (PEMRA) to vary conditions, suspend or revoke licence of a broadcaster—Variation of licence in public interest—Prohibition to broadcast certain content— Determination of what constituted "public interest" to prohibit content under S. 30(2) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002—Fundamental right to freedom of speech— Restrictions on the fundamental right to freedom of speech in the context of preambular Constitutional values—Scope—Thin line existed between something in public interest and against public interest and right balance and equilibrium had to be maintained between the two— What might appear to many to be against the public interest could also be in the public interest, if looked at differently and for effective evaluation of the existence of public interest, subject matter must be filtered out through preambular Constitutional values of democracy, freedom, equality, tolerance, social, political and economic justice, freedom of thought, expression, belief, faith, worship and association and an effort must be made to advance the frontiers of freedom by

advancing inclusivity, diversity and plurality in society—Restrictions in terms of "public interest” must be substantive, real, proximate, tangible and immediate and not remote, conjectural or far fetched and only if public interest existed in said terms, could PEMRA take action under S.30(2) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002—While PEMRA must be resolute and vigilant in safeguarding public interest, it must also guard the freedom of speech and expression with the same unwavering commitment and vigour, [pp. 722y 723] F&G

Ms. Asma Jahangir for Petitioners.

Tahir Mahmood Ahmad Khokhar, Deputy Attorney General for Pakistan.

Mansoor Usman Awan for Respondents/PEMRA along with Tahir Farooq Tarrar, Head Legal for Respondents.

Mohsin Mumtaz,Civil Judge/Research Associate at LHCRC for Research Assistance.

Date of hearing: 18th July, 2017.

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