ARBAB MUHAMMAD TAHIR, J. The petitioner, through this constitutional petition has sought the following prayers.- A. "To graciously declare that Regulation 2.5 is inconsistent sand ultra vires of Section 25 of the PEMRA Ordinance hence are without lawful authority and has no legal effect and may be struck down.
B. Declare that Regulation 7 of the Impugned Regulation is discriminatory and in violation of Article 25 of the Constitution of Islamic Republic of Pakistan hence without lawful authority and may kindly be struck down; C. Declare that the Respondent's Impugned Regulations are in violation of Articles 4, 8, 9, 18, 19-A and 25 of the Constitution of Pakistan, 1973; D. Declare that without providing any revenue sharing mechanism, the Impugned Regulations are in violation of Article. 18 of the Constitution of Pakistan, 1973; E. Direct the Respondents to form a committee and address all the concerns of the Petitioner before granting DTH license; F. Till disposal of the instant petition, restrain the Respondents from taking any step towards grant of DTH license; G. To grant any other relief that this Honourable Court may deem appropriate in the facts and circumstances of this case."
2. The facts, necessary for adjudication of the lis in hand, are that the petitioner (Pakistan Broadcasters Association) is a society registered under the Societies-Registration Act, 1860 with the objects, inter alia, to act as Central Welfare Organization of the Broadcasting House and to achieve high professional standards of the science and art of Electronic Publishing and Electronic Journalism. As per para 3 of the memo of petition, the petitioner had earlier filed W.P. No.4288/2016 impugning the Direct to Home (DTH) Distribution Service Licensing Regulations, 2016 notified vide SRO No.551(I)/2016, dated 01.06.2016, wherein comments were filed by respondent No.2/Pakistan Electronic Media Regulatory Authority (PEMRA). As per the written comments filed in above- mentioned W.P. No.4288/2016, the regulations impugned therein were amended and re-notified, therefore, the petitioner filed the instant writ petition assailing fresh SRO No.774(I)/2016, dated 12.08.2016, published in the official gazette on 20.08.2016. The main challenge through the instant petition is to the provisions of Regulations 2.5 and 7 of the PEMRA (Eligibility Criteria and Bidding Procedure for Director to Home (DTH) Licensing) Regulations - 2016 (hereinafter the "impugned Regulations") on the ground of being ultra vires the provisions (particularly section 25) of parent statute i.e. Pakistan Electronic Media Regulatory Authority Ordinance, 2000 (hereinafter the "Ordinance") and Articles 4, 8, 9, 18, 19-A and 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter the "Constitution").
3. Learned counsel for petitioner has argued that; the impugned Regulations were framed without consulting the main stakeholder i.e. the petitioner; the very object of promulgation of the Ordinance is promotion of electronic media industry, however, the impugned Regulations have been framed by ignoring the interest of the said industry; no foreign owned or controlled entity could be allowed to acquire or hold a broadcasting licence; the licensee of a DIN license cannot be allowed to be managed by a foreign entity; regulations 2.5 and 7 of the impugned regulations are ultra vires to section 25 of the Ordinance and Articles 4, 8, 9, 18, 19-A and 25 of the Constitution; section 25 of the Ordinance prohibits granting licence to an entity whose shares are owned or controlled by foreign nationals or companies whose management or control is vested in foreign nationals or companies, however, on the contrary the Regulation 2.5 of the impugned Regulations creates an exception and allows grant of license to entities owned or controlled by foreign nationals/companies, with or without control or management; regulation 7.1 of the impugned Regulations is discriminatory in as-far-as the airing of foreign content is concerned; the vires of regulations 2.5 and 7 of the impugned Regulations have neither been considered nor adjudicated by the learned Lahore High Court and the Hon'ble Supreme Court of Pakistan.
4. Learned counsel for respondent No.2 and the learned Assistant Attorney General have argued that; Regulation 2.5 of the impugned Regulations does not go beyond section 25(c) of the Ordinance; PEMRA is vested with jurisdiction to grant exemption from any of the provision of the Ordinance in the public interest; as per Regulation 2.5 of the impugned Regulations, the Chief Executive Officer of the licensee shall be the Pakistani national; the initiative is intended to attract foreign direct investment aimed at technology transfer and development in the industry; the provisions of regulation 2.5 have been framed by granting exemption under section 32 of the Ordinance allowing management and control to foreign entity; the instant petition is hit by the principle of res judicata as these matters were considered and adjudicated by the learned Lahore High Court and ultimately by the Hon'ble Supreme Court of Pakistan.
5. Heard. Record perused.
6. There are two primary questions, which are required to be addressed first, (i) whether the petition is hit by the principle of res judicata and (ii) whether PEMRA is vested with power under section 32 of the Ordinance to frame regulations in contravention of the parent statute 'i.e. Ordinance. The questions, whether regulations 2.5 and 7 of the impugned Regulations are in contravention of the provisions of parent statute i.e. the Ordinance and liable to be struck down is to be answered after resolution of the above two primary questions.
7. This Court shall first deal with the question whether the petition is hit by the principles of res judicata. A petition was filed before the learned Lahore High Court i.e. W.P. No.25317/2016. The opening paragraph of judgment dated 28.12.2016 rendered by a Larger Bench of the learned Lahore High Court in the said petition mentions "Through this petition the Petitioner has challenged the vires of Rule 13(3) and (4) of the Pakistan Electronic Media Regulatory Authority Rules. 2009 ("Rules") and Regulations 2.5, 2.11 and 3.23 of the PEMRA (Eligibility Criteria and Bidding Procedure for Director to Home (DTH) Distribution Service Licensing)
Regulations, 2016". The learned Lahore High Court in the referred judgment has mainly considered and decided the questions relating to vires of Rule 13 of the Pakistan Electronic Media Regulatory Authority Rules, 2009 and Regulations 2.11 and 3.23 of the impugned Regulations. The main question which was considered and decided in the referred judgment was with regard to the restriction imposed on vertical integration by prohibiting cross ownership such that a broadcaster cannot operate distribution services and vice versa. Although Regulation 2.5 of the impugned regulations has been reproduced in paragraph 14, however, findings have not been recorded regarding vires of the referred regulation in the said judgment by the learned Lahore High Court.
The learned Lahore High Court held Rule 13(3) and (4) of the Rules along with Regulations 2.1 and 3.23 of the impugned Regulations as beyond the authorized mandate of Section 23(2) of the Ordinance and inconsistent with the intent of the Ordinance and declared the same to be without lawful authority and of no legal effect and consequently struck down. The Hon'ble Supreme Court vide judgment titled "MAG Entertainment (Pvt.) Ltd. and others v. Independent Newspapers Corporation (Pvt.) Ltd. and others" [2018 SCMR 1807], while allowing the appeals, set-aside the judgment rendered by the learned Lahore High Court. No findings/decision has been rendered by the Hon'ble Supreme Court with regard to the vires of Regulation 2.5 of the impugned Regulations.
Insofar as vires of Regulation 7 of the impugned Regulations are concerned, it is noted that in in W.P. No.2581/2017 a Circular issued by PEMRA was impugned. PEMRA through the said impugned Circular had banned airing of Indian content. The learned Lahore Court through judgment reported as "M/s Leo Communications (Pvt.) Ltd. and others v. The Federation of Pakistan and others"
(PLD 2017 Lahore 709) had set-aside Circular, dated 19.10.2016 being unconstitutional and illegal. As per response of PEMRA filed in the referred petition, the said Circular had been issued in public interest and relevant clauses of the license. The Hon'ble Supreme Court vide order, dated 05.03.2019, has granted leave to appeal in C.P. No.4267/2017 filed against judgment rendered in M/s. Leo Communication (Pvt.) Ltd., case supra.
In view of the above, this Court, therefore, concludes that the principle of res judicata is not attracted to the case in hand insofar as vires of Regulations 2.5 and 7 of the impugned Regulations are concerned.
8. The second question which is required to be addressed is the scope of powers of PEMRA under section 32 of the Ordinance in the light of the defence taken by PEMRA in its written comments. For the sake of convenience, section 32 of the Ordinance is reproduced below.-
32. Power to grant exemptions.- The Authority may grant exemptions from any provisions of this Ordinance, where the Authority is of the view that such exemption serves the public interest and the exemptions so granted shall be supported by recording the reasons for granting such exemptions in writing provided that the grant of exemptions shall be based on guidelines and criteria identified in the Rules and that such exemptions shall be made in conformity with the principles of equality and equity as enshrined in the Constitution.
A plain reading of the above reproduced provision shows that PEMRA is vested with power to grant exemptions from any provision of the Ordinance where it is of the view that such exemption would serve the public interest. However, such power of PEMRA has been subjected to restriction, (i) the grant of such exemption shall be supported by recording reasons, (ii) it shall be based on guidelines and criteria identified in the Rules, and (iii) it shall be made in conformity with the principles of equality and equity as enshrined in the Constitution. Section 2(u) of the Ordinance defines the expression 'rules' as meaning the rules made under the Ordinance. In order to confirm whether any rules have been framed under Ordinance to regulate the exercise of authority under section 32 of the Ordinance, this Court carefully examined the provisions of Pakistan Electronic Media Regulatory Authority Rules, 2009 framed in exercised of powers conferred by subsection (1) of section 39 of the Ordinance with the previous sanction of the Federal Government. This Court also examined the provisions of the impugned Regulations. As stipulated in section 32 of the Ordinance, separate 'rules' identifying the 'guidelines and criteria' have not yet been framed. No record has been appended with the written comments which would suggest that before framing the impugned Regulations, the grant of exemption was considered in the light of section 32 of the Ordinance supported by reasons duly recorded in writing in compliance with the 'guidelines and criteria' identified by any 'notified Rules' in this regard. Section 32 of the Ordinance envisages framing separate rules so as to identify guidelines and criteria for "grant of exemption" to "regulate" such power of PEMRA. Furthermore, the power of exemption under section 32 of the Ordinance can be invoked on case to case basis, subject to the conditions stipulated therein. The provisions of section 32 of the Ordinance cannot be used as a 'shield' in defense in case of any "lapse" or challenge to acts done in "excess of authority" conferred under the Ordinance.
9. Now, I shall address the question of challenge to vires of Regulations 2.5 and 7 of the impugned Regulations. The impugned Regulations have been framed while exercising the powers conferred by sections 4, 18 and 19 of the Ordinance and notified in the official gazette on 20.08.2016. Since the vires of Regulations 2.5 and 7 of the impugned Regulations are challenged, therefore, the same are reproduced below.- "2.5 Applicant shall have less than 50% of the shares owned or controlled by foreign national/companies, if any with or without out management or control vested in foreign nationals or companies. The Chief Executive Officer of the applicant company shall be resident Pakistani."
"7. Thematic channels: 7.1 The DTH Licensee will be initially allowed to relay upto five (5) thematic channels. The content to be aired over the thematic channels shall be copyrighted pre-recorded local or international content including movies, dramas, educational programs, entertainment programs, recorded sports content, kids programs, weather update etc. The content shall be in accordance with the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015, given in the Rules. The thematic channels shall not be regular satellite TV channels. There shall be no live coverage of any event and there shall be no content related to news and current affairs, talk shows, religion, speeches or sermons etc. The breakup of 24 hours broadcast/content with repeat(s) to be relayed over each thematic channel shall be as follows:- i.Indigenous and locally produced Pakistani Content in Urdu, any other local or English Language; minimum limit:45% ii.Indian Content; maximum limit: 6% iii.Advertisement; maximum limit: 20% iv.Foreign content (other than Indian): 21% v. Public Service Messages; in each hour ; mandatory: 2% (i.e. 1 minute 12 Seconds/hr) vi.Children content (local or foreign; other than Indian):6% 7.2 The thematic channels shall not be regular satellite television channels."
The dominant challenge to Regulation 2.5 of the impugned regulation is on the ground that it is in direct conflict with section 25 of the Ordinance i.e. the parent statute. It is necessary to reproduce section 25 of the Ordinance below.-
25. Certain persons not be granted licence.- A licence shall not be granted to--
(a) a person who is not a citizen of Pakistan or resident in Pakistan;
(b) a foreign company organized under the laws of any foreign government;
(c) a company the majority of whose shares are owned or controlled by foreign nationals or companies whose management or control is vested in foreign nationals or companies:
(d) any person funded or sponsored by a foreign government or organization."
Bare perusal of section 25 of the Ordinance shows that the legislature has unambiguously prohibited the grant of licence to persons falling under clauses (a) to (d). The legislature has used the words "a licence shall not be granted to" a company whose management or control is vested in foreign nationals or companies. Regulation 2.5 of the impugned Regulations on the other hand has created an exception to sub-clause (c) of section 25 of the Ordinance by allowing companies "with" management or control vested in foreign national or companies to apply for grant of licence.
The stance taken by PEMRA that Regulation 2.5 of the impugned Regulations does not go beyond section 25(c) of the Ordinance is misconceived. The defence of PEMRA that provisions of Regulation 2.5 of the impugned Regulation have been framed contrary to section 25 of the Ordinance in exercise of powers conferred under section 32 ibid is also of no help. As held in paragraph 8 above, the power to grant exemption under section 32 of the Ordinance is circumscribed by conditions i.e. recording of reasons in writing in compliance with criteria and guidelines identified by Rules, that too in conformity with the principles of equality and equity enshrined in the Constitution. The power under section 32 of the Ordinance has, therefore, to be exercise on case to case basis, keeping in view "public interest" involved in such particular case. If the defence of PEMRA i.e. exemption in section 32 of the Ordinance, is ignored, there remains no rationale behind framing of Regulation 2.5 of the impugned Regulations "in excess" of the mandate of parent statute and going beyond the delegated authority.
10. The second challenge through the instant petition is to vires of Regulation 7 of the impugned Regulations. The learned counsel could not point out that the said Regulation is inconsistent with any provision of the parent statute or the Constitution. There is nothing on record to show that the PEMRA was not vested with jurisdiction and authority under the law to frame such regulations.
Nothing has been pointed out that the said regulation is violative of the fundamental rights guaranteed under the Constitution or any right conferred by the parent statute. The Ordinance is a special law enacted for the purpose of regulating the electric media in Pakistan. The licencees are bound by the terms and conditions of the licence and the applicable law/rules/regulations. This Court in writ jurisdiction cannot pass any order which may amount to interference with statutory functions of PEMRA. This Court cannot micromanage the regulatory functions of PEMRA and re- determine the provisions of Regulation 7 of the impugned Regulation, unless it is established that the same are in contravention of the parent statute or the Constitution.
12. It is pertinent here to reproduce below the principles and law laid down by the Hon'ble Supreme Court while dealing with the question of vires of delegated legislation.- "Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others" [2015 SCMR 1739]
(i) "There was a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute was placed next to the Constitution and no way could be found in reconciling the two; ii) Where more than one interpretation was possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favoured validity; iii) A statute must never be declared unconstitutional unless its invalidity was beyond reasonable doubt. A reasonable doubt must be resolved in favour of the status being valid; iv) Court should abstain from deciding a Constitutional question, if a case could be decided on other or narrower grounds; v) Court should not decide a larger Constitutional question than was necessary for the determination of the case; vi) Court should not declare a statute unconstitutional on the ground that it violated the spirit of the Constitution unless it also violated the letter of the Constitution; vii) Court was not concerned with the wisdom or prudence of the legislation but only with its Constitutionality; viii) Court should not strike down statutes on principles of republican or democratic government unless those principles were placed beyond legislative encroachment by the Constitution; and ix) Mala fides should not be attributed to the Legislature.
"Khawaja Ahmad Hassan v. Government of Punjab and others" [2005 SCMR 1861.
"Where a Court is required to determine whether a piece of delegated legislation is bad on the ground of arbitrary and excessive delegation, the Court must bear in mind the following well- settled principles:
(1) The essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct and this cannot be delegated by the Legislature.
(2) The legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act.
(3) Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the Courts should hot interfere.
(4) What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of a particular Act with which the Court has to deal, including its Preamble.
(5) The nature of the body to which delegation is made is also a guidance in the matter of delegation.
(6) What form the guidance should take, will depend upon the circumstances of each statute under consideration, and cannot be stated in general terms. In some cases guidance in broad general terms may be enough, in other cases more detailed guidance may be necessary." Organ on (India), Ltd. v. Collector of Excise, Mandsaur 1977 MPLJ 118-b(DB)."
"Farrukh Raza Sheikh v. The Appellate Tribunal Inland Revenue and others" (2022 SCMR 1787] ."It is trite law that Rules cannot override the specific provisions of the parent statute. The Rules are to carry out the purposes of the Ordinance and cannot offend, oppose or be inconsistent with the provisions of the parent statute (Ordinance in this case). Any rule, to the extent of any inconsistency with the parent statute is, therefore, ultra vires of the parent statute."
"Zarai Taraqiati Bank Limited and others v. Said Rehman and others" [2013 SCMR 642] "The rules" and "regulations" framed under any Act are meant to regulate and limit the statutory authority. All statutory authorities or bodies derive their powers from statutes which create them and from the rules or regulations framed thereunder. Any order passed or action taken which is in derogation or in excess of their power can be assailed as ultra vires. Rules and regulations being forms of subordinate legislation do not have substantial difference as power to frame them is rooted in the statute. Statuary bodies are invariably authorized under the Act to make or adopt rules and regulations not inconsistent with the Act, with respect to such matters which fall within their lawful domain to carry out the purpose of the Act."
"Suo Motu Case No. 11/2011, in the matter of National Police Foundation Land" [PLD 2014 SC 389] "Rulemaking body cannot frame rules in conflict with or in derogation of the substantive provisions of the law or statute, under which the rules are framed. Rules cannot go beyond the scope of the Act. No rule can be made which is inconsistent with the parent statute, whereas, no regulation can be framed which is inconsistent with the parent statute or the rules made thereunder and the provisions of these rules or regulations, as the case may be, to the extent of such inconsistency with the parent statute or rules shall be void and inoperative."
"Mian Zaiuddin v. Punjab Local Government and others" [1985 SCMR 365] Rule framed under statute could not go beyond and overreach statute itself. To make implementation of statutory provision, consistent harmonious directly effect must be given to requirement of Rule.
"Khawaja Ahmed Hassan v. Government of Punjab and others" [2005 SCMR 186] "If the rules framed under the statute are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then those provisions must be regarded as ultra vires or the statute and cannot be given effect to. It was further held in the aforesaid case that: In the case of statutory rules the Court can always examine the question as to whether the same are inconsistent with the statute under which they are made."
The crux of the above reproduced precedent law is that, (i) the delegated legislation must be within the permissible limits of the parent statute, (ii) it must not travel beyond the mandate of the parent statute, (iii) it must not be in excess of jurisdiction conferred by the parent statute, (iv) it must not be in conflict with the parent statute or the Constitution, and (v) while framing rules/regulations in exercise of authority conferred by the parent statute, the rules/regulations framing authority shall not assume the role of Parliament and attempt to amend the provisions of the parent statute through the delegated legislation.
13. As noted above, the regulations framing authority, while framing Regulation 2.5 of the impugned Regulations has travelled beyond the mandate of the Ordinance i.e. the parent statute PEMRA has attempted to justify this transgression of authority by submitting that such an act was aimed at attracting foreign direct investment and advancement of technology and for this reason, PEMRA decided to allow entities controlled by foreign nationals/companies to apply for grant of licence.
PEMRA was otherwise empowered to grant exemption from provisions of the Ordinance on case to case basis and such a defense cannot be accepted for the transgression of the authority i.e. framing of delegated legislation beyond the mandate of parent statute.
14. As held above, since Regulation 2.5 of the impugned Regulations is in directed conflict with the parent statute, therefore, this Court, in order to save the said Regulation from being struck down carefully considered the tools of interpretation of statutes including the applicability of the principles of "reading down" and "rule of severance" in the light of the principles and law laid down by the Hon'ble Supreme Court in the case titled "Haroon-ur-Rashid v. Lahore Development Authority and others" [2016 SCMR 931]. The relevant portion is reproduced below.- "It is settled position in law that while interpreting the law or any provision of any statute all efforts are made by the Court to save the statute by applying various tools of interpretation one of the rule of harmonious construction being rule of reading down and rule of severance. Rule of reading down, a statutory provision means that a statutory provision is generally read and or toned or narrowed down, applying restrictive meaning in its application. Rule of severance means to trim down or slice away invalid portion which is otherwise generally considered to be part of statute or provision, purpose is to save as much as to bring the statute or provision within the ambit of constitution and law as declared by the superior Courts and to protect it from being declared ultra vires or unconstitutional as a whole. If such trimming or slicing away is possible then the Court declare such part to be beyond the legislative competence and leave the reminder valid and operative."
"In the case of Province of Sindh through Chief Secretary v. through Deputy Convener (PLD 2014 SC 531), it was held by this Court that at the time of "reading down" of a statute two principles had to be kept in view; first that the object of "reading down" was primarily to save the statute and in doing so the paramount question would be whether in the event of reading down; could the statute remain functional; second would the legislature have enacted the law if that issue had been brought to its notice which was being agitated before the Court. In this view of the matter.
Courts have a duty to construe and apply laws to specific fact situations. Sometimes they have to construe a particular law as meaning nothing and sometimes they have to construe the law as meaning something different from the letter of the law passed by the Parliament. The offending provision or part of it is read down to the extent it is necessary to give it legal effect, or will be severed if it cannot be read down, and the remaining part and provisions of the statute will remain intact."
Regulation 2.5 of the impugned Regulation when read in conjunction with the provisions of the Ordinance, it offends the very spirit of section 25(c) of the Ordinance in its present form. The said Regulation, in its present form cannot withstand in harmony with the parent statute. While saving the whole provision i.e. Regulation 2.5 of the impugned Regulations from being struck down, this Court considered application of the "rule of severance" to the extent of the offending part. As held above, Regulation 2.5 of the impugned Regulations is in contravention of section 25(c) of the Ordinance only to the extent of allowing companies controlled or managed by the foreign nationals/companies to apply for grant of licence. In this view of the matter, while applying the "rule of severance", striking down the relevant words i.e. "with or" used after the words "if any" and before the "without" in Regulation 2.5 of the impugned Regulations 'would be sufficient so as to bring the said provisions in harmony and subservient to the parent statute.
15. For what has been discussed above, the instant petition is allowed and disposed of in the following terms.- i) Regulation 2.5 of the impugned Regulation to the extent of the allowing companies controlled or managed by the foreign nationals/companies to apply for grant of licence has been framed beyond the permissible statutory mandate and transgression of delegated authority. Therefore, the words "with or" used after words "if any" and before the "without" in Regulation 2.5 of the impugned Regulations are held to be in conflict with the provisions of section 25(c) of the Ordinance and are, therefore, struck-dawn. ii) PEMRA is not vested with any power to grant exemption in vacuum in exercise of powers vested in it under section 32 of the Ordinance. Such powers are to be exercised on case to case basis, after recording of reasons in writing in compliance with criteria and guidelines identified by notified Rules that too in conformity with the principles of equality and equity enshrined in the Constitution, keeping in view "public interest" involved in a particular case. The defence of PEMRA, in the written comments filed in the case in hand on the basis of section 32 of the Ordinance was, therefore, neither appropriate nor justified. iii) This Court cannot micromanage the affairs of PEMRA and re-determine the provisions of Regulation 7 of the impugned Regulations as nothing has been pointed out that the same are in contravention of the fundamental rights of the petitioner, the provisions of the Constitution or the parent statute. iv) PEMRA is a statutory regulatory authority vested with power to regulate affairs of the licencees.
Therefore, the petitioner may approach PEMRA for redressal of grievances (if any) to the extent of