Pakistan is at the crossroads so is its media: It is trying to reform itself to enter the next millennium, though with fears it inherited since the days of its creation when, suddenly, but not unexpectedly, it found itself in the thick mire of security threats. 

Moreover, the ruling elite that replaced the lieutenants of the Quaid-e-Azam restored the feudal style of politics they were accustomed to before the independence.

Against this background, the press laws that had been governing the press in the pre-independence era easily found their way in the body politick of the independent and sovereign country. The colonial structure of constitutional system based on the 1935 Act, and the Independence Act of 1947, which also contained Section 18 allowing the continuation of the application of existing laws, rules, regulations or other instruments,  became laws of the land even in the post-1947 era.

While these two legal instruments facilitated the transition for Pakistan into independent statehood, they also brought with them a corpus of laws and regulations, which had primarily, if not exclusively, been formulated by the colonial British power to perpetuate their control over occupied territory.1 This corpus also included laws such as Press (Emergency Powers) Act of 1931, the State (Protection against Disaffection) Act, 1922, the Code of Criminal Procedure, 1898, the Penal Code of 1860 and other laws.2

Thus, media, even after the independence, had to face governments with a mind-set of authoritarian rulers who also had deep sense of uncertainty about the future and stability of the country. The preceding political volatility further allowed the bureaucracy to justify and keep old laws intact to control the media. As a result, democracy could not take its natural roots in the society and the country was ruled by martial law regimes that gagged the freedom of the press.

It is worth mentioning that, in most of the instances,  the laws restraining free speech and press freedom were applied when civil liberties issues threatened one government or the other. Such regressive laws were rarely implemented when religious organisations, ethnic groups or any one supporting the party in power violated them. This discriminatory application of laws stifling free speech and the press clearly establishes the fact that their purpose was political in nature and not what their users claimed. Pakistan Press Ordinance (PPO) is a self-explanatory law in this regard.

Though, the incumbent chief executive has assured the nation to respect the free press, the proposed law on electronic media obtains its spirit from the erstwhile PPO.  Now when government is keen to introduce reforms in press laws, the use of Maintenance of Public Ordinance to harass journalists continues.3 Editor of a weekly, The Friday Times, Mr. Najam Sethi, was arrested during the Nawaz Sharif regime by a security agency on vague charges. In this milieu, it would be appropriate to infer that the colonial mind-set still prevails at the higher echelons of power in the country.

Interestingly the experience of the countries where media laws have been liberal, governments do not confront much problems from media with regard to their stated policies on strategic issues or concerns. Not only in the USA, where media laws are more liberal than Europe but also in India –  more liberal as compared to Pakistani situation –  media has been more amenable to the stated policies of the state than it is in This shows that liberal media laws would ensure better government-media relations and not the otherwise.

The constitutional guarantees for freedom of information and expression are meaningless without a free print as well as electronic media. However, the wide spread fear that the abuse of penal laws may occur any time continues as they (penal laws) are still part of the statutory book.

Sections of 3-A, 4-A, 153-A 153-B, 292, to 298-c, 499 to 502 and 505 of the Pakistan Penal Code, the Official Secrets Act, Sedition Act, the Maintenance of Public Order Ordinance, are major laws that are in conflict with the rights to freedom of information and expression.

Most of these laws are archaic and out of tune with the concept of freedom and democracy. The laws on communication also apply a restriction on media on the pretext of containing false news, which causes a chilling effect on the free working of journalists as well as of media industry.

In addition to this, the complete control of the government over the electronic media is also in conflict with the Article 19 of the constitution of the Islamic Republic of Pakistan, which renders right to freedom of expression and information and the press. While there is no visible desire on the part of the government to privatise or, at least, liberalise electronic media policy, freedom of the print media in the private sector is still at the mercy of rulers  only an amendment in the Article 159 of the constitution can make electronic media free.

The current proposal to create new TV channels, radios and establish a system of cyberspace in private sector, falls much short of the claim of the present government. It would give birth to an over regulated and essentially state controlled media and not a state regulated electronic media. Perhaps authors of the proposed government electronic media policy have failed to distinguish liberal from private media.

As one of the fundamental civil liberties, freedom of speech encompasses written as well as spoken communication, and in most of the definitions it includes non-verbal expressions such as dress, dance, music etc.4 At first glance, its relation to democracy seems simple – free speech requires democracy and democracy requires free speech. Conversely, totalitarian regimes suppress free speech since it would threaten their stability.

Moreover, other laws regulating the supplies of inputs to the newspaper industry such as Newsprint Ordinance, relevant sections of the Customs Act, Audit Bureau of Circulation, and the executive power over the release of public sector advertisements are also forms of indirect control over the free press. Governments can abuse them to put pressure on any publication. The use of Income Tax department, Customs Department, the Federal Investigating Agency or any other agency are no longer a secret to gag the free press.

While Pakistan enters the new millennium, it must restructure itself to the needs and demands of the future world. It may be satisfying that most of the economic policies, such as structural adjustments, liberalisation, and adherence to the principles of good governance are no longer alien expressions to the government of However, its approach to the laws governing or regulating the media needs to be updated/revised.

It is not just that the government's approach requires a revision. The media industry should also restructure itself if it has to catch up with the developments in the fast changing world where not only new technology has posed challenges, new ideas and concepts are also changing its role. It may not be out of place to mention here that economic system, democracy and journalism go together –  in this sense, the origin of journalism, capitalism, and bookkeeping are indissoluble.5

Therefore, when Pakistan is preparing to be in economic race in the contemporary world, its media institutions should also be developed in consonance with other modern reform programmes. The proposal to establish yet another institution to regulate the media, as the proposed press council, should be in conformity with the international codes practiced by journalists in democratic societies. However, the latest controversy over the press council should also be kept in mind while relying too much on it.6

While dabbling with the idea of press council, it is necessary to realise the importance of professional/working journalists on its panel along with the public members. That is why almost in all press councils only two types of members are nominated/selected/elected – press members and public members. And mainly press councils have been established to make media accountable to public and public only where professionals' code of ethics governs the proceedings. And press members are taken mainly from among the professional editors and professional journalists. In spite of the fact that the Press Complaints Commission in Britain and the press council of Australia are solely owned, created and funded by publishers, they are not members of these bodies. Therefore, a modern approach regarding the press council is required so that we can say with pride in future that Pakistani media industry was alive to the need of the time.

The much-needed proposed Freedom of Information Act (FOIA) should be treated as a first step towards giving the people their fundamental right to know, and not the ultimate achievement of a democratic society. However, again it should be noted that though such a law empowering the people to have access to official information would be a positive addition to Pakistani media laws, journalists in the USA treat it (FOIA) as an obstacle in their working.7 They do not feel that it is a final achievement in itself. 

It does not also mean that Pakistan should not take a forward step in this direction. But the steps taken towards this direction must be careful and discreet so that the proposed legislation should help it in catching up the race, and not pushing it back to the point from where it intends to start. While copying other models, most of which have been made ten to thirty years ago, Pakistan should see what is lying ahead in the new millennium. This would reflect upon our level of intelligence and maturity of mind. Therefore, the thinking behind the efforts to make new laws for the media in Pakistan should embrace not only revising/deleting regressive laws, but also catching up the race in the fast changing world. A consolidated legislation in Pakistan on press council, right to know or other press laws would do the justice.
It would be unfair to establish a press council or any other regulatory body for the media while allowing other regressive laws on the statutory book.

Keeping in view the local socio-economic and administrative conditions, we should talk of a comprehensive change in media laws and regulatory regimes, particularly with regard to the rules, regulations and procedures. All that may affect the supplies of inputs to such as newsprint, advertisements, ABC, raw materials for the electronic media and the free dissemination of the audio and visual productions. If the latter are allowed to be regulated through executive orders then the legislation on press council or right to know would remain meaningless.

A study on press council shows that they are established to make media accountable to public in accordance with their code of ethics while preserving freedom of the press at the same time. They have been created both in developed as well as developing countries by newspaper industry as independent and self-regulatory bodies comprising professional editors, journalists and the public members. India is among a few developing countries where press council has been created through an act of Parliament.

We have two options before us – whether to create a press council as an independent and self-regulatory body or emulate the Indian model. If the former is adopted then media industry will have to device means and ways to make it financially viable and sustainable. This model, however, would ensure maximum independence of the press council while adjudicating any case, and no interference from government, thus ensuring freedom of the press.

However, if Indian model is preferred then it must have some new instruments in it that safeguard the interests and independence of the media industry in The proposed press council of Pakistan should not only be empowered to adjudicate complaints against media as it is provided in the Indian model, it should also be authorised to deal with matters pertaining to media and the government relations.
The proposed press council of Pakistan should have a sanction to receive complaints on the denial of right to have access to official information instead of creating an ombudsman-like office as an appellate body conceived in the proposed Freedom of Information Act. It should also be able to audit the circulation of various publications through private sector bodies the way private chartered accountants audit the accounts of companies in the private sector.

Similarly, it should also be empowered to make a formula according to the principle of equity evolved after a thorough discussion and deliberation among its members and in consultation with media industry's representative organisations for the release of government advertisements to different publications and broadcasting corporations or companies that may come in future should the government liberalise its electronic media policy.

The press council in Pakistan should function as a forum to redress any grievance accruing from the application of any law on the members of media industry, so that the chances of abuse of law could be circumvented. Because such an abuse would be an attack on the freedom of the press. The suggestion of widening the scope of the press council in Pakistan is not meant to give it limitless authority, rather to ensure freedom of the press in particular milieu of our body politick that is already in a thick mire of over-regulated environment.

But in both models, media industry should not shrug off its responsibility of funding the proposed press council. Though the Indian model allows budgetary grant to the press council of India, yet it levies a fee on publishers and can also receive donations from private sector.

Freedom is and must remain our cherished destiny because without it media cannot perform its duties. A responsible and positive media cannot come into being until it is allowed self-regulation and ensure its independence and freedom from executive interference.

Nevertheless, the foregoing discussion should not prevent public from invoking other relevant laws of the land. For instance, libel laws and the provision of filing suits under defamatory laws should be allowed to the people or any one aggrieved. If this provision is abolished, then it would amount to depriving an individual of his fundamental rights.

However, if the proposed press council in Pakistan along with the revision/deletion of regressive laws is created it would win the confidence of public who would prefer to file their complaints with it instead of going to normal civil or criminal courts.
Moreover, the need of the better or strict implementation of the Newspaper Employees Act 1973 should also be underscored as the wages and the other supports of the working journalists under this act essentially are the minimum guarantees for the development of the human resources in this industry.
The Newspaper Employees Act, 1973 should not only be applied comprehensively and exclusively on print media industry, it should also be made applicable on the electronic media industry. Till, a better law is enacted to govern the electronic media industry pertaining to protect the interests of its journalists and other employees.

This concept paper was read at the National Seminar on Media Laws in Pakistan on Jan 27, 2000, organised by Press Club in collaboration with the British Council, . The author works with the Jang Group of Newspapers.

Notes

1. Mass Media Laws and Regulations in Pakistan, compiled by Javaid Jabbar and Qazi Faez Isa, published by Asian Media Information & Communication Centre, P.73.
2. Ibid. P.73.
3. Three journalists were put behind the bar under the MPO in the Punjab and one in the NWFP in April, 1999 on the charges of disseminating false news.
4. The Encyclopedia of Democracy, Vol.11, Congressional Quarterly, Washington D.C., USA. P.504.
5. Prof. James Carey' article, The Press and the Public Discourse, published in The Center Magazine, a publication of the Center for the Study of Democratic Institutions. Prof. Carey has also served as president of the Association for Education in Journalism, USA.
6. Opponents of the implementation of codes of ethics through a press council include American Society of Newspaper Editors, World Press Freedom Committee, World Editors Forum and Society of Professional Journalists. They say an ethic code could be wielded as a weapon against reporters.
7. Its unpopularity among American journalists can be gauged from the fact that they filed only 5 percent of the estimated 600,000 requests federal agencies receive every year. Biggest users of the FOIA in America are private businessmen, lawyers, and prisoners.