Setting aside the Islamabad High Court (IHC) judgment, the Supreme Court has justified the federal government’s policy to suspend mobile phone services on the pretext of “national security”.
It is common practice for mobile phone services to be suspended in the country’s cities on “sensitive” religious events like Ashura and Eid Miladun Nabi.
Islamabad High Court Chief Justice Athar Minallah in his February 26, 2018 verdict had declared the suspension of mobile phone services on the pretext of “security concerns” illegal.
The judge stated that the discontinuation of cellular services by the federal government and other authorities was tantamount to exceeding their authority.
A division bench of the apex court led by Justice Bandial on April 22 set aside the IHC judgment which struck down the policy directive dated 26.12.2009 published by the Ministry of Information Technology (IT and Telecom Division) under Section 8(2)(c) of the Pakistan Telecommunication (Re-Organisation) Act 1996.
"These protective measures are taken on the request of law enforcement authorities in view of past experience of terrorist activities at similar events. If such events caused the issuance of the impugned directions then the same would be in the public interest, reasonable, fair, consistent with the object of the law and therefore valid. Accordingly, the exercise of power by PTA under
the policy directive dated 26.12.2009 ought to be evaluated in the light of the threat that is anticipated," said a 9-page written judgment authored by Justice Umar Ata Bandial.
The impugned judgment of the IHC further held that the said policy directive failed to meet the criteria and conditions laid down in Section 54(2) and (3) of the Act.
Later, Pakistan Telecom Authority (PTA) had challenged the IHC judgment in the apex court.
The apex court in its written judgment held that the power of PTA under the policy directive dated 26.12.2009 does not conflict with Section 54(3) of the Act which operates in a different field.
In fact, it is regulated by Section 8(2)(c) of the Act read with Section 24-A(1) of the 1897 Act and the law laid down by this Court controlling the exercise of delegated authority.
"Apart from the aforesaid parameters, it is not within the province of a Superior Court to strike down or interfere with decisions taken by Federal Government bodies pursuant to the policy directive dated 26.12.2009," said the judgment.
Justice Bandial also noted that the IHC judgment failed to examine the impugned suspensory directions dated 28.03.2016 in the context of the power conferred on PTA.
"We consider that the impugned judgment has arrived at a hasty and incorrect conclusion. The learned High Court has construed Section 8(2)(c) to be subservient to Section 54(3) of the Act. In reaching this decision, the learned High Court has misread the Act, specifically the provisions of Section 54, all of which serve an express purpose/function. Whilst these purposes/functions may incidentally be effectuated by the exercise of power under Section 8(2)(c) of the Act but this does not lead to the conclusion that Section 54 ibid controls the exercise of such power.”
The court also held that if the respondent telecom licensee had any grievance regarding the manner in which the power under Section 8(2)(c) of the Act was exercised by PTA, it should have taken up the matter in the first instance with the federal government.
“Therefore, its recourse to a Court of law straightaway was pre-mature and vexatious,” it said.
The judgment further noted that in a country where there was sectarian tension during the Ashura in Moharram, the Zuljinah procession ought to be protected from attacks and turmoil.
"This is attempted by PTA's email dated 21.10.2015 which is necessary to ensure the religious freedom guaranteed to the citizens under Article 20 of the Constitution.
Equally, the Pakistan Day Parade by the armed forces is an annual national event where apart from the armed forces personnel, the highest state and foreign dignitaries assemble to view the military parade. This again is an event which deserves security protection.
The court observed that section 54(3) conferred powers on the federal government to modify or suspend all or any orders or licences in a situation where an emergency is imposed by the president under Article 232 of the Constitution.
On the other hand, it said that section 8(2)(c) empowered the PTA to take steps pertaining to matters of national security, diplomatic protocols and State functions.
“The purpose of the two sections is distinct. Section 54(3) is reactive and defensive in nature, coming into the field when on account of grave circumstances in the country or its provinces a proclamation of emergency is issued by the president potentially involving suspension of fundamental rights and the provincial government(s).
"Conversely, Section 8(2)(c) contemplates pre-emptive action as it allows for the disruption of services before any perceived threat in a specified area materialises. It further said that under Section 54(3) cellular services may according to the terms of the Emergency be disrupted for a lengthy period of time over an extensive area. In contrast, disruption of services under Section 8(2)(c) is likely to be event specific and localised, in effect applying only for a temporary period of time across a limited area."
The apex court noted that both sections operate in separate spheres and situations with no conflict between them nor any primacy being given to one over the other.
The court further observed that reasonableness and fairness are the criteria that bear nexus with the factual matrix of a grievance and with the object of the law.
"In the present case, the factual background for the impugned exercise of such power vide PTA's email dated 28.03.2016 has not been examined by the learned High Court," said the judgment.
Umer Gilani Advocate, counsel for citizen-petitioners, whose writ petitions in the IHC triggered this litigation, stated that section 54(3) of the PTA Act made it abundantly clear that the only situation where signals can be suspended is when there's a proclamation of emergency in place.
“However, the SC has completely obfuscated this settled law, simply to protect self-conceived notions of National security.
"Unfortunately, conspicuously missing from the Supreme Court's 9-page order is any mention of the term 'fundamental rights' or 'right to telecommunication'. This judgment will be noted with concern by the digital rights community in Pakistan and all over the world," said Gilani.
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