December 17, 2018

Islamabad High Court declares cellular network shutdown illegal

ISLAMABAD: Islamabad High Court has declared cellular network shutdown by government illegal here today. 

This decision was given by Justice Atar Minullah in response to the petition filed in April 2016. Four residents of Islamabad had approached the court through advocate Umer Gilani in response to intermittent mobile network shutdowns around March 23 parade celebrations in Islamabad as it affected their life and liberty. Government, Pakistan Telecommunication Authority and mobile telecom companies were made respondents in the case.

A copy of the decision is available here.

According to Advocate Umer Gilani, who led the case, the court noted that the government’s exercise of powers under section 54 (3) of Pakistan Telecommunication Act, to suspend mobile networks under the pretext of law and order and national security was in contradiction with the constitution. He noted that section 54(3) allowed government to shut down cellular services in emergency situation, which had happened only twice or thrice in Pakistan. “To impose emergency, the procedure had been laid down in the constitution and government simply cannot use section 54 (3) to suspend networks.”

Mr. Gilani called this judgment a great victory for digital rights and called it a strong judgment. “This judgment has far reaching implications for mobile users in other areas of Pakistan. Anyone can now approach Islamabad High Court for contempt of court in case his mobile services are suspended.”

It is to be noted that the cellular services including mobile internet are often suspended on special orders from the federal government, implemented by Pakistan Telecommunication Authority ahead of landmark events and religious and political processions to ‘avert possible law and order situations’.

Judgment reserved in September:

Earlier in September 2017, Islamabad High Court reserved verdict on the petitions praying to ‘restrain’ the Pakistan Telecommunication Authority from suspending cellular services in the name of security. Justice Minahllah after hearing the final arguments of both parties reserved the verdict and directed them to submit written arguments by 20th of October.

During the hearing of the petitions, the petitions argued that the suspension of cellular services are illegal under the Telecommunication Act 1996 and did not empower the government to suspend telecommunication services unless there was an order of proclamation of emergency from the President of Pakistan.

Speaking to Media Matters for Democracy, Umer Gilani, the petitioners’ counsel said, “there are 70 million users of mobile services in and 10 million or more use banking services online. Telecommunication services are like water and air; it’s a fundamental right and everybody needs it”. On the legality of the suspension of cellular services, he said: “suspensions are in complete violation of the law”.

On the other hand, the federal government maintained that the suspensions of cellular services to avoid law and order situations are completely in line with the Telecommunication Act 1996 and the government is empowered to do so under Section 54 sub-section II of the Telecom Act.

Sub-section II of Section 54 of Telecom Act reads:

During a war or hostilities against Pakistan by any foreign power or internal aggression or for the defence or security of Pakistan, the Federal Government shall have preference and priority in telecommunication system over any licensee.

Gilani countered the arguments saying that there is only one way for the government to lawfully suspend cellular services and that is through Section 54 sub-section 3, which requires the President of Pakistan to declare the state of emergency.

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