AUDICIAL DEPARTMENTs W.PNo.32142 of 2023, wean Abad Khan Nina VERSUS Pakistan Electronic Media Regulatory Authority and others. Sioa Dale of order ‘with signatures of Judge, and that of parties of counsel, proceedings Proceedings | where necessary 04.01.2024. | Barrister Ahmad Pansota Advocate for the petitioner. M/s Barrister Haroon Dugal, Fatima Zahid and Sheikh Nadeem Arshad Advocates for the responden/PEMRA. M/s Waqas Ahmad Mir and Anas Intiza Awan Advocates for respondents No.2, 3, 5, 6, 7) 8 10, 11, 16, 18, 19 and 20. Ws Umair Ahmad and Haris Irfan ‘Advocates for respondents No.12 and 15. Umar Khatab Deputy Director Legal PEMRA, Kanwal Dar, Law Officer for PEMRA. [Kawa De eee This writ petition was filed for seeking a direction to Pakistan Electronic Media Regulatory Authority (PEMRA) = © ensure the “broadcast/rebroadcast speech(s)/press talks (recorded or live) of the petitioner, 2 ‘The petitioner is ex-prime minister of Pakistan and at the time of filing of this petition was the Chairman of one of the leading political parties of Pakistan, PEMRA issued a Prohibition Order on 05.03.2023 putting a blanket ban on the coverage of the petitioner on electronic media. An appeal bearing FAO No.15965 of 2023 was filed by the petitioner tigainst that order which was entertained for regular 7 hearing on 09.03.2023. This Court suspended the Operation of that order and sent the matter to the fullW.P. No.32142 of 2023. 2 bench constituted for ascertaining the Jurisdiction of the appropriate Court against the orders of PEMRA issued from Islamabad. The matter is still pending before the full bench of this Court. ae The petitioner through this petition complains that his coverage is still not being allowed to be showed on media channels. In order to substantiate the allegations, the petitioner through CM. No.5 of 2023 placed on record additional documents including a USB. The leamed counsel for PEMRA sought time to file reply to this application. The reply was, however, not filed. This application is accordingly allowed, and the documents and the USB appended therewith shall form part of the record. 4, It is not in dispute that the petitioner was being censored on the electronic media. On being confronted, the learned counsel for PEMRA stated that PEMRA has not issued any instructions to the TV channels in this regard. He nevertheless made a statement under instructions that PEMRA shall not cause hindrance in the broadcast of live programs or pre-recorded programs concerning the petitioner or the political party he was once the Chairman of. After going through the material brought on record by the petitioner, this Court was inclined to proceed further in the matter by issuing notices to the media channels. The learned counsel for the petitioner, however, submitted that there is urgency in the matter in view Of the upcoming elections and that the matter be disposed of in the light of the observations made in the ease of Dr Shahid Masood and others _v. Bed Pukistan etc 2010 SCMR 1849,W.P. No.32142 of 2023. 5 5. PEMRA has notified on 19.08.2015 the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 (Code of Conduct) which, amongst others, directs that all the media channels shall ensure that news and current affairs programs shall present information in an accurate and fair manner and that any political programs shall be conducted in an objective manner guaranteeing representation of the concerned political parties and that relevant facts are not suppressed. Clearly, the allegation agitated before this Court by the petitioner is that the media channels breached the Code of Conduct when his name was not even allowed to be taken in the programs. As noted earlier, this allegation is not in dispute, 6. The issue raised in this petition has assumed great significance as the general elections for the National Assembly and the four Provincial Assemblies are on the horizon. It is through the mechanism of elections that the people exercise their sovereign right to choose the agents who will hold and manage governmental power. The election thus ensures that the elected government reflects the will of the people, In as much as the adherence or otherwise to the electoral laws and the processes determine the extent to which the election results reflect the consent of the citizens, the elections and governmental legitimacy are closely connected. As the legitimacy of the elected representatives’ rests on People’s choice, it is self-evident that they must be _ Provided with best and accurate information about the Candidates and political parties they are likely to makeWP. No.32142 of 2023, ul the choice from. In other words, any meaningful Participation in democratic processes in the run up to the elections requires informed citizenry. The afore- mentioned context dictates that election processes must contribute to a level Playing field in which all the political parties and the candidates feel enabled to communicate their message to the people through all the available medium of communication. The space and freedom available to a political Party or its leader and the candidates in the preelection period is, therefore, of paramount importance for the acceptability of a fair and free election. 7 Article 218 of the Constitution while constituting the Election Commission casts a duty on it to “...organize and conduct the election and ta make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law..” 8. What is a free and fair election is often the subject matter of debate amongst legal scholars. The idea of a free and fair election nevertheless assumes the existence of certain democratic norms underpinning the process which are required to be realized before an independent and neutral observer could make any conclusion thereto, The literature on the subject makes it obvious that these democratic norms and standards envision the citizens as holding “the Fight and freedom to elect the legislators from a engineering by the manipulative State Which may make attempts to narrow down f candidates. In order to: make informedW.P. No.32142 of 2023. mG choices, the citizens must be able to access multiple sources of information. If the parties and candidates in the run up to the elections are not Provided free and fair entrée to the available Public forums the resultant choice expressed by the People shall not fairly reflect the free formation of voter preference. The democratic norms underlying a free and fair election also envisage secret ballot and a conducive environment for casting of votes by the people free from violence or threat of violence. Without a neutral, professional and competent election commission that functions ina transparent manner and maintains impartiality and independence from political manipulation and honestly and accurately counts the votes the principle of fair election shall remain an empty aspiration. If these rules/standards are flouted, the election cannot be declared acceptable, much less free and fair (see Elections Without Democracy by Andreas Schedler, Joumal of Democracy, John Hopkins University Press Volume 13 Number 2, April 2002, The Rise of Election Monitoring: What Makes Elections Free and Fair? by J Elklit and Palle Syensson, Journal of Democracy, John Hopkins University Press, Volume 8, Number 3, July 1997), 9, This brings us to the crucial issue which dictates that the Government or its instrumentalities in order to provide a conducive environment for holding © and fair elections cannot prevent the media from ending coverage to political parties or candidates, ent and diverse media which is free from emt control and performing its functions in tive manner in Providing information to theW.P. No.32142 of 2023. oe ‘people guarantees freedom of expression Which is a fundamental right under the Constitution. The Government has no right to prevent the media from covering certain candidates or Political parties, Similarly, the media platforms must be able to provide unconstrained access to candidates belonging to all political parties to transmit their opinions and manifestos to the public enabling them to make informed choices. Any restrictions on public rallies must be uniformly applied to all the candidates/political parties thereby —_ ensuring consistent and impartial application of regulations. 10. ‘The Supreme Court in its landmark judgment rendered in the case of Benazir Bhutto v, Federation of Pakistan PLD 1988 SC 416 accepted the premise that a citizen has a fundamental right to form a political party and the right of that political party to contest the elections, While emphasizing the importance of political parties in parliamentary democracy, it was stated that it is the party system that converts the results of a Parliamentary election into Government and that elections are a constitutionally recognized mode of succession in Government as th ey provide the legitimate means for validity to the claim to govern, The following passages from the judgment bring out the position of law to the effect that any testrictions on the formation and functioning of a ‘Political party must limit to the constraints set out in Article 17(2) of the Constitution and no more: Reading Article 17(2) of the Constitution as a ‘Whole it not only guarantees the right to form F ‘er'be'a member of a political party but alse '0 operate as a poiitical party. As earlier |. the words “right to form” is not ‘only ieW.P. No.32142 of 2023, Confined to its formation @ political party, ae but to its function ag Sscording to its texture, of being an Sdgregate of citizens composing the Parly_can exercise the other rights ausranieed under the Constitution like an ci i forming of a U essarily implies the yf iviti S woul In other words the functioning Is implicit in the formation of the Party. (See the opinions of B.Z. Kaikaus, J., and Comelius, C .J., in Abul A’la Maudoodi's case). This being so, the Political Parties Act not being a higher law than the Fundamental Right itself, cannot override or prevail over of be superimposed to make the right operational, The functioning is also explicit from the limitation itself which makes Prejudicial activities against sovereignty and integrity of Pakistan actionable_ | have earlier dealt with the importance of the political party and its role for providing leadership for public offices through elections, {f the political party is disabled political texture and to all intents _and purposes it will suffer extermination or in other words its functioning as a political party will come to an end, if this be so ifferent fr \ i f the Act (Emphasis supplied) u. In the case of Benazir Bhutto and another v. Federation of Pakistan PLD 1989 SC 66, inter alia, a challenge was made to the amended section 21(1)(b) of the Representation of the Peoples Act, 1976 which empowered the Returning Officer to allocate one of the prescribed symbols to each contesting candidate by drawing of lots, The Supreme Court based ‘on the observations cited in the Preceding paragraph Concluded that denying an election symbol to a ifW.P. No.32142 of 2023. “a political party is violative of Article 17Q) of the Constitution as it failed to recognize the existence of the political parties and their fundamental tight guaranteed by Article 17 to participate in the process of elections. 12. The two judgments cited above made it obvious in no uncertain terms that a political party once formed under Article 17 of the Constitution has available to it the other fundamental rights relating to freedom of speech, freedom of assembly, freedom of movement ete and the right to obtain a common election symbol which cannot be curtailed under any law except in the case of restrictions mentioned in Article 17 of the Constitution. These judgments recognized the core principle that electoral rights and guarantees by the Constitution are framed around the right to form and be a member of a political party and all the rights that are collaterally connected thereto including the individual right to vote and the right to stand as candidates in elections, 13, In the rich tradition of the common law interpretation and taking cue from the standards laid down by the two afore-mentioned judgments, the Supreme Court in the case of Muhammad Nawaz Sharif'v. Federation of Pakistan PLD 1993 SC 473 took the interpretation of Article 17 to the next stage by holding that; sodhe basic tight “to from or to be a member of a political Party” conferred by femihe German pa if its members,W.P, No.32142 of 2023. elected to that body, are in ef the requisite majority. (Emphasis supplied including the italics) ~Q~ 14. The electoral guarantees the Constitution provides requires the Court to interpret the electoral laws in a manner, even where diverse interpretations of a law are put forward, so as to uphold the right to freely contest the elections by a political party and its candidates under the banner of the political party and ‘on its symbol and in an arena where multiple forums of media freely operate without government constraints. 157 The rights endowed to the political party by the Supreme Court in the above-mentioned judgments through the interpretative process thus not only include the right to form and function but also all the concomitant rights that those right entail. The rights that are collaterally attached to the right to form or be ‘a member of a political party thus enjoy the same status as the fundamental right under Article 17 itself. Any law that curtails those rights is @ fortiori unconstitutional and yoid ab initio and a challenge to such a law can be made even in collateral proceedings (see Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.P.F. and others PLD 1995 Supreme Court 66). PEMRA being a regulator through its actions or inaction cannot deny to the people and the political parties the basic i fundamental rights guaranteed to them by the ! ‘Conatitution ie, freedom of speech (Article 19), of assembly (Article 16), Right to (Article 19), Electoral processes mean ‘more than the polling day which is merely a 7Pret, WP. No.32142 of 2023. Pig part of the electoral process although its importance cannot be underestimated. As noted above, free and fair elections require the realization of several other preconditions which are equally important if not more, The necessary pre-conditions of an election campaign which is both open and fair require an opportunity for all the candidates and their supporters belonging to whichever party to promote their manifesto, to have access to and hold meetings at the venue of their choice and to travel freely around the country. In short, a free and fair election requires freedom of speech, assembly, movement, information through an independent media. Without these freedoms, no election can be called free, fair and democratic. “Elections and constitutions are jntertwined institutions of a democratic state: elections determine who governs; constitutions provide the limitations and rules on how they govern” ‘(Briefing Paper 48, April 2014 Democracy Reporting International). 16, For what has been stated above and keeping in view the upcoming general elections, PEMRA is directed to strictly ensure that the petitioner and candidates of all the political parties are given free and unrestricted access to media platforms/channels without any constraints from any quarter. Shams” 400d Mira) adge