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February 27, 2018

Security concern: IHC declares suspension of mobile phone services illegal

National

February 27, 2018

ISLAMABAD: The Islamabad High Court (IHC) here on Monday allowed a petition against the off and on closure of mobile phone networks by the government on security pretext.

In a 15 pages detailed judgment, Justice Athar Minallah has said that the petitions are allowed and “the actions, orders and directives issued by the federal government or authority (PTA), as the case may be, which are inconsistent with the provisions of Section 54(3) are declared as illegal, ultra vires and without lawful authority and jurisdiction.”

The federal government or Pakistan Telecommunication Authority (PTA) are not vested with powers and jurisdiction to suspend or cause the suspension of mobile cellular services or operations on the ground of national security except as provided in Section 54(3) that is regarding proclamation of emergency by the president of Pakistan, the IHC order further says.

Petitioners CM Pak Limited and others had asserted before the court that their fundamental rights are being violated when the cellular services are suspended. Petitioners had challenged the directives of the PTA in this regard.

Petitioners had contended that they are licence holders and got radio frequency spectrum through open bidding. The petitioner is being compelled by the PTA from time to time to suspend its services on the basis of mere apprehensions which on the one hand infringes the fundamental rights and on the other causes a breach of company's obligations to the customers' that is to provide uninterrupted voice and data services.

Likewise the private citisens had adopted that off and on suspension of mobile phone service on security pretext is irksome and a violation of their fundamental rights. Petitioners further adopted that the practice is also illegal under the Pakistan Telecommunications (Reorganisation) Act, 1996. That the mobile phone service usually remains suspended during the protests, sit-ins, Muharram, Rabiul Awal, important funeral and chehlum, and sometimes during the Lal Masjid cleric’s sermons, private petitioner had contended.

Counsel for CM Pak had contended that services under the licence could only be disconnected either under Clause 6.21 or Clause 6.71 and sub-Section 3 of Section 54 in case when the president of Pakistan proclaims emergency. The federal government, through a policy directive issued under Section 8 of the PTA Act, cannot empower the Authority to suspend the cellular services in disregard to the provisions of Section 54. And if operations are suspended under Section 54, then the federal government is required to compensate the licensees for the losses. That there is no other provision which empowers the PTA or the federal government to suspend the services and the practice adopted by the PTA to direct the mobile cellular operators to suspend its operations without prior notice or information is without lawful authority and jurisdiction.

The PTA counsel had argued that the federal government is vested with the jurisdiction to issue policy directives under Section 8(2)(c) read with Section 54 (2) of the Act. The IHC bench in its order observed that the government to authorise any person or persons to intercept calls and messages or to trace calls through any telecommunication system in the context of national security, or if there is an apprehension of the commission of any offence. Sub-Section (2) of Section 54 provides that during war or hostilities against Pakistan by a foreign power or internal aggression or for the defence or security of Pakistan, the federal government shall have preference and priority in telecommunication systems over any licensee. Under Sub-section (3) of Section 54 federal government can cause suspension of operations, functions or services of any licensee for such time as it may deem necessary. However, this provision is only confined to the eventuality or happening of the 'proclamation of emergency by the president'. The bench said that the federal government is not empowered to issue any policy directive under Section 8 of the PTA Act which is inconsistent with Section 54(3) ibid. To the extent of inconsistency the policy directive will be ultra vires and void.