IHC declares suspension of mobile phone service for security against law

Suspension of mobile phone service by federal government authorities declared illegal and beyond authority

Our Correspondent February 26, 2018

ISLAMABAD: The Islamabad High Court on Monday declared the suspension of mobile phone services by the government, on the pretext of public safety, as illegal.

IHC’s Justice Athar Minallah issued the verdict on the several petitions that challenged the frequent suspension of mobile phone service in the federal capital.

“The actions, orders and directives issued by the Federal Government or the Authority [PTA], as the case may be, which are inconsistent with the provisions of section 54(3) [of Pakistan Telecommunication Act 1996 ] are declared as illegal, ultra vires and without lawful authority and jurisdiction,” the court observed in its order.

“The Federal Government or the Authority are, therefore, not vested with the power and jurisdiction to suspend or cause the suspension of mobile cellular services or operations on the ground of national security except as provided under section 54(3),” the order read.

The petitions were filed around March 23, 2016, by some Islamabad residents whose lives were greatly disrupted when the government ordered a shutdown of mobile services, purportedly for security reasons.

Cell phone services restored in Karachi, other cities

Petitioners – Masooma Hassan, Waqar Ahmad, Muhammad Zohaib and Ahmed Raza – through their counsel Umer Gilani had argued that the suspension of mobile services was a violation of their fundamental right to telecommunication.

They also argued that practice was illegal under the Pakistan Telecommunications (Reorganization) Act, 1996.

However, PTA Counsel Barrister Munawwar Iqbal Duggal argued that PTA never orders mobile companies to suspend services on its own. He added that it always does so at the behest of the federal government. The federal government, on its part, argued that it is empowered to issue suspension orders under sub-section (2) of the Section 54 of the Telecommunication Act.

This provision states that the government shall exercise “preference and priority” in all telecom systems when it is necessary “for the defense and security of Pakistan”.

Rebutting the arguments, Gilani said the government cannot take cover under the “preference and priority” power as the power to suspend services has been given to federal government through a separate provision of law – sub-section (3) of the Section 54 of the Telecom Act.

The provision also provides that the power can only be exercised under the extraordinary situation when the president has issued a Proclamation of Emergency.

Therefore, he said, the suspension orders which are so casually issued by the federal government every now and then, especially in the twin cities, don not have any legal justification.

The court after hearing the arguments accepted the petitions and declared the frequent suspension of the cellular services illegal, unless such power is exercised under the extraordinary situation when the President has declared emergency in the country.

Authorities in the capital have often resorted to suspension of cellular services to provide security to Muharram processions and Pakistan Day Parade and other such occasions.

Verdict applauded

Rights groups, as well as cellular service providers, welcomed the high court’s order declaring the network shutdown as illegal.

“We are pleased to cherish this moment of triumph and share it with digital rights community inside Pakistan and across the globe,” said a statement issued by Bytes for All, an organisation working for digital rights.

Its research ‘Security V. Access: Network Shutdowns in Pakistan’ served as the basis for the litigation in this case.

“We expect from the government of Pakistan to implement the judgment in letter and spirit, and find alternative ways to answer legitimate threats to peace and law and order situation in the country,” the said

On the other hand, officials from Zong also lauded the order, saying, “The suspension of mobile services is a cause of distress for the customers, especially in time of a civil unrest. It is a time when they need the services the most to reach out to their loved ones.”

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