Licensing / Media Regulation
The Case of Al Jazeera Journalist Peter Greste
Closed Contracts Expression
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The Supreme Court of Pakistan upheld the Ministry of Information and Technology’s Policy Directive concerning the suspension of mobile operator licenses as constitutional. The Supreme Court set aside the High Court of Islamabad’s decision which held the Pakistan Telecommunication Authority’s (PTA) direction to mobile cellular operators to suspend their operations and Policy Directive are inconsistent with the Telecommunications Act and declared them as illegal, ultra vires. The case arose after CM Pak Limited, a licensed service provider of mobile services filed a petition challenging the powers of the Pakistan Telecommunication Authority to suspend services based on mere apprehensions of a violation of the Constitution and a breach of its obligations to the customer. The High Court held that Pakistan Telecommunication Authority doesn’t have the power to suspend the services, because such power is only vested with Federal Government. The Supreme Court rejected the High Court’s reasoning and observed that the High Court failed to examine the policy taking into consideration the statutory powers conferred to the Pakistan Telecommunication Authority. The Supreme Court observed that there was a legitimate need to suspend cellular services, and the same was taken as protective measures at the request of law enforcement authorities to protect national security. The Court upheld the constitutionality of the Policy Directive and the powers of the PTA and disposed of the appeal.
CM Pak Limited (the Respondent) is a Licensed Service Provider (‘LSP’) of cellular services in Pakistan who filed a petition against the Pakistan Telecommunication Authority (‘PTA’) (the Appellant) before the High Court of Islamabad, challenging the power and jurisdiction of PTA concerning the suspension of mobile cellular service. The Respondent was compelled by the PTA to suspend its services, firstly, on the based apprehensions of violation of fundamental rights guaranteed under the Constitution of Pakistan and secondly on the breach of its obligations to the customers i.e. to provide uninterrupted cellular voice and data services. The High Court heard the Respondent’s petition along with other similar petitioners.
The Respondent first, contended before the High Court that, PTA is under an obligation to ensure that the licensees get reasonable & expected returns. Subsequently, according to Section 54(3) of the Pakistan Telecommunication (Reorganization) Act 1996 (‘Telecommunication Act’), the suspension of operations can only be justified if the President exercises the power relating to the proclamation of an emergency under Article 232 to 237 of the Constitution. Further, the Telecommunications Act also doesn’t confer any powers to the PTA or Federal Government to direct the suspension of cellular mobile operations based on mere apprehension e.g. to avoid any untoward incidents. Therefore, the PTA’s directions to mobile cellular operators to suspend their operations without prior notice or information are without lawful authority and jurisdiction. (Para 4, HC Decision)
Secondly, the Respondent referred to Khushi Muhammad v. Mst. Fazal Bibi (2016), Shahida Bibi v. Habib Bank Limited (2016), and Muhammad Akram v. Mst. Zainab Bibi (2007) to contend that the expression ‘security of Pakistan’ defined under Article 260 of the Constitution has explicitly excluded the term ‘public safety’, thus, any suspension of services can only be ordered or directed under Section 54(3) of the Telecommunication Act. The Respondent concluded that the Federal Government’s policy ought to satisfy the law laid down by the Supreme Court in Mustafa Impex v. Government of Pakistan (2016). Therefore, the suspension of mobile phone services by the PTA is ultra vires of Section 54 of telecommunications and violated Articles 10-A, 9, 15, 16, 17, 18, 19 and 19-A of the Constitution by depriving mobile phone users of availing the services, wherein the access to telecommunication services has become a fundamental right. (para 4, HC Decision)
The Appellant contended that Federal Government is vested with the jurisdiction to issue Policy Directives under Section 8(2)(c) read with Section 54 (2) of the Telecommunication Act. Therefore, the Policy Directive dated December 26, 2009, regarding the closure of telecommunication services due to national concern is constitutional. (para 5, HC Decision)
Judge Athar Minallah of the High Court of Islamabad delivered the decision. The central issues for the Court were to determine, first ‘whether the PTA had the power to direct mobile cellular services to suspend their services in the context of the powers vested in the Federal Government under Sections 8 and Section 54 of the Telecommunication Act.’ Second, ‘whether the Policy Directive is in conflict with Section 54 of the Telecommunication Act and, if so, then what are the ensuing consequences.’
The High Court observed that by taking into consideration of the clear and unambiguous language of the Telecommunication Act, it is apparent that the Legislative intention was to confine the power and jurisdiction of the Federal Government to issue Policy Directives by using the expression “not inconsistent with the provisions of the Act” in Section 8(1) and Section 8(2) of the Telecommunication Act. Further, the Court observed that the Policy Directive issued by the Government is inconsistent with Section 54(3) of the Telecommunication Act because the suspension of operation of a license can only be directed when the President has proclaimed an emergency under the Constitution. (Para 9-12, HC Decision) The High Court held the PTA’s direction to mobile cellular operators to suspend their operations and Policy Directive are inconsistent with the Telecommunications Act and declared as illegal, ultra vires and without lawful authority and jurisdiction. (para 14, HC Decision)
An Appeal was filed against the High Court decision before the Supreme Court of Pakistan.
J. Umar Ata Bandial and J. Qazi Muhammad Amin Ahmed of the Supreme Court of Pakistan delivered the judgment. The central issue before the Court was to re-examine the High Court’s reasoning.
The Court first, remarked that there is a consensus among the parties that national security or public safety priorities justify the imposition of restrictions and directions. Second, the Court observed that the Respondent failed to file a grievance before the Federal Government or its concerned agencies about the Policy Directive dated December 26, 2009, in the seven years that elapsed before the filing of its appeal [paras. 3-4].
The Court observed that Section 54 and Section 8 both cater to different circumstances, thus both have distinct purposes. The Court reasoned that Section 54(3) of the Telecommunication Act confers 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 the Constitution. On the other hand, Section 8(2)(c) empowers PTA to take steps about matters of national security, diplomatic protocols and State functions. The Court observed that the former section is reactive and defensive, coming into the field when on account of grave circumstances in the country or its provinces a proclamation of Emergency is issued. Whereas the latter section is pre-emptive action as it allows for the disruption of services before any perceived threat in a specified area materialises [para. 5].
Furthermore, the Court noted that under Section 54(3) of the Telecommunication Act cellular services as per the terms of Emergency may be disrupted over periods and areas. However, disruption of services under Section 8(2)(c) of the Telecommunication Act is likely to be specific and localised. Thus the Court mentioned that both Sections operate in different spheres and situations with no conflict between them and neither one being superior to the other [para. 5].
The Court referred to Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan (2015) to observe that the Policy Directive is an instrument of delegated legislation, as it sets out the purpose, causes and parameters of suspensory action by PTA. The Court observed that the Policy Directive stipulates law enforcement authorities the authority to forward written requests to PTA specifying the cellular services to be closed, the time and duration of the closure and the specific area where such closure is to be implemented in case of significant threat of “hostilities against Pakistan by a foreign power” or “internal aggression by terrorists/groups.” The Court observed that since both of these events fall under public safety and national security, the Policy Directive can be held as contravening Section 54 of the Telecommunication Act. Conversely, the Policy Directive strengthens the very purpose of the Telecommunication Act by adding national security situations that fall outside the scope of Section 54(3) [para. 6].
The Court referred to Muhammad Amin’s case to determine whether the PTA exercised its power under the Policy Directive reasonably, fairly, justly and for the advancement of the purposes of the Act. The Court observed that ‘reasonableness and fairness are criteria that bear nexus with the factual matrix of a grievance and with the object of the law.’ The Court assessed different factual circumstances including the Ashoora in Moharram, the Pakistan Day Parade by the Armed Forces, and the Protest at Chehlum of Mumtaz Qadri. The Court held that taking consideration of these events, there was a legitimate need to suspend cellular services. These protective measures are taken at the request of law enforcement authorities because of past experiences 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 [para. 7].
The Court concluded that the power of the PTA under the Policy Directive does not conflict with Section 54(3) which deals with a different field, because it is regulated by Section 8(2)(c) of the Act read with Section 24-A(1) of the General Clauses Act and the law laid down by this Court controlling the exercise of delegated authority. The Court set aside the High Court decision and held that the High Court decision arrived at a hasty and incorrect conclusion. The Supreme Court observed that it was pre-matured and vexatious of CM Pak Limited to approach the Court of law directly because they should have approached the Federal Government first. The Court upheld the constitutionality of the Policy Directive & the powers of the PTA and disposed of the appeal [para. 8.].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case contracts expression by finding that the Telecommunication Authority’s suspension of telecommunication services by licensed providers was consistent with the Constitution.
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