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IHC constituted committee to examine obscene material on TV

28 March, 2017

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ISLAMABAD: Chief Justice Islamabad High Court Justice Shaukat Siddiqui has constituted a committee to examine the contents of TV programs and identify obscene material. The constitution of committee to monitor and report obscene content without any clear definition of 'obscenity' by the legislature is an unprecedented move. The committee includes private citizens who are known for their rigid views about women and their appearance.

Justice Siddiqui made this order while simultaneous hearing of two different petitions involving PEMRA and the Ministry of Information & Broadcasting. During the hearing of petition by Mr. Salman Shahid on the blasphemous content on social media, the court decided to hear it together with an older petition by Mr. Waqas Malik, which was against the obscene contents on TV channels.

Mr. Waqas Malik had submitted a petition to Islamabad High Court in 2013, which was pended because of then ongoing hearings in Supreme Court on similar petitions by late Qazi Hussain Ahmed, Justice (Retd) Wajihuddin Ahmed and others in 2012.

Meanwhile, senior journalists Mr. Absar Alam and Mr. Hamid Mir had also submitted a separate petition for the accountability of media persons and utilization of secret funds by the Ministry of Information while seeking the formation of an accountability commission for media.

SC in response to both the petitions had ordered PEMRA to review and revise its rules and code of conduct to ensure accountability and adherence to the code of conduct. PEMRA later amended its rules and promulgated new rules in 2015. Mr. Waqas Malik's petition remained pending in the IHC because of these developments. It was March 2017 when IHC started hearing the social media blasphemy case that Mr. Malik's petition was also resurrected and heard simultaneously.

On March 17, the court summoned Mr. Absar Alam, from PEMRA and Mr. Nasir Jamal DG Ministry of Information and Broadcasting in this connection. Mr. Alam apprised the court of the steps taken by PEMRA on this issue, 'which are of some significance' according to the court order. But signifying its dissatisfaction with those steps, the court constituted a committee, comprising Secretary Ministry of Information & Broadcasting, Chairman & DG (Technical) PEMRA, Attorney General of Pakistan and Mr. Ansar Abbasi, senior journalist. Mr. Abbasi is known to have strong views on the TV content he categorizes as obscene and even pornographic.

It is not clear why a private citizen with an opinion on the case has been made a member of the obscenity oversight committee. It is also not clear why Mr. Waqas Malik's three years old petition was dug out proactively at this time. It is also not known if the court has suggested certain parameters to this committee to undertake its work. The committee shall, therefore, be working on subjective understanding without universally acceptable definitions and strictures of obscenity and immorality.

Moreover, the newly constituted committee overlaps the mandate and function of PEMRA, which is the primary institution for such oversight as the terms of reference given to the committee. When asked whether PEMRA would challenge this order in Supreme Court, PEMRA officials refused to comment. It appears that PEMRA is clueless how to handle what is termed 'an onslaught by the IHC to intimidate PEMRA and Ministry of Information' by a lawyer on the condition of anonymity. It may be noted that this obscenity petition was heard together with the blasphemy case in the presence of huge number of religiously inclined people, which made it difficult for anyone including PEMRA to say anything in response to court's observations.

In its order, the court has frequently invoked Article 19 of the constitution that guarantees freedom of expression but puts some restrictions. The Article provides the proviso on the freedom of expression if it doesn't negate or contradict glory of Islam, national security & defence, friendly relations with foreign states, public order, decency & morality and contempt of court.

Senior advocate of Supreme Court Babar Sattar says Parliament should have legislated on Article 19 considering the breadth of the restrictions proposed by the constitution. Subjectivity has to be broken down in order to dilute the absolute discretion, he said. In the absence of an act of parliament, who would put subjective concepts like 'morality' and 'decency' to test, what authority shall enforce those standards and by which law, he asks. The court however, can be the bridge till such time that parliament legislates, Mr. Sattar says. But in this case, even the court order does not specify the parameters of subjective concepts and leaves it open to the interpretation of individuals.

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