ISLAMABAD: The Supreme Court has ruled that without rules the chairman Pakistan Electronic Media Regulatory Authority did not have any validly delegated authority to approve the recommendation of the Council of Complaints (COC) of the PEMRA.

A complaint was filed before the COC of the PEMRA alleging that the petitioner (a private TV channel) violated the Electronic Media (Programmes and Advertisements Code of Conduct, 2015, in a programme aired on its channel on 08.03.2021. After considering the petitioner’s reply, the COC in its meeting on 01.04.2021 found the contents of the programme to be violative of the code of conduct and recommended that a fine of Rs500,000 be imposed on the petitioner. The said recommendation was approved by the chairman of PEMRA on 29.04.2021.

The petitioner filed an appeal before the Lahore High Court (LHC) against the order of the chairman PEMRA, but that was dismissed. The petitioner then approached the Supreme Court against the LHC’s order.

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The judgment, authored by Syed Mansoor Ali Shah, noted that the COC has powers to summon a licensee against whom a complaint has been made and call for explanation regarding any matter relating to their operation. The COC is supposed to render opinions on such complaints. Finally, in case of violation of the codes of programme content and advertisements, the COC may recommend appropriate action of censure or fine to PEMRA.

In the instant case, PEMRA has placed reliance on a decision taken in a meeting held on 31.07.2007, wherein, the powers to approve the minutes of meeting of the COC in terms of Section 26 of the Ordinance was delegated to the chairman PEMRA. However, the court was informed that no rules have been framed, whereby, the authority to approve the recommendation of the COC has been delegated to the chairman PEMRA. The judgments said that Section 26 of the Ordinance suggests that PEMRA has been given the power to delegate any of its powers, responsibilities or functions to the chairman or a member or any member of its staff, or an expert, consultant, adviser, or other officer or employee of PEMRA, and in order to control the delegate in the exercise of delegated powers, responsibilities or functions the delegation has been subjected to such conditions as may be prescribed by the rules.

The legislature has intended that the exercise of delegation envisaged under Section 13 of the Ordinance shall be structured with conditions prescribed under the rules framed with the approval of the federal government.

It is not for this Court to decide whether PEMRA should have exercised its power of delegation, though it is certainly a question for this court to decide if PEMRA has exercised it within permissible limits. What PEMRA has done in its meeting dated 31.07.2007 has been to delegate the power in the very terms in which it was given to PEMRA to the chairman PEMRA specifying no standards and leaving everything in the chairman PEMRA’s discretion.

Public bodies in whom discretion is vested are under an obligation to confine and structure it by the promulgation of decisional criteria so as to strike the best balance in the context between rules and discretion.

This is the reason that the legislature aimed to limit the delegation to the conditions prescribed by the rules.

The power to make rules is conferred to carry the enabling statute into effect, and that is an executive function. It is a function to administer the statute, which gives the power to make subordinate legislation. Thus, as the Ordinance gives discretion to PEMRA to delegate its powers, responsibilities or functions subject to conditions imposed by rules and the power to make rules is conferred on PEMRA, the validity of the exercise of discretion will be judged by the same principles as the exercise of any other administrative discretion.

Any rules delegating PEMRA’s powers, responsibilities or functions must meet the test of reasonableness and non-arbitrariness. The act of delegation must align with the statutory purpose.

PEMRA while delegating a power, responsibility or function shall not exercise the discretion of delegation in a manner that distorts the purpose of the statutory scheme. Furthermore, the conditions accompanying such delegation should possess rationality.

As already held in Pakistan Broadcasters Association, the more important the power, responsibility or function being considered for delegation, the higher must be the “threshold” for PEMRA in deciding not to impose any conditions. Such a threshold is to be gauged according to the importance of the power, responsibility or function that is being delegated, and as and when PEMRA decides to delegate more important powers, responsibilities or functions, the threshold, and in effect, the discretion to not impose conditions starts to dissipate. Furthermore, the determination of the suitable recipient for delegation primarily rests within the purview of PEMRA. Nevertheless, it is imperative that the selection be not characterised by irrationality, as any instance of improper delegation shall be a matter for the courts to decide.

Copyright Business Recorder, 2023