Licensing / Media Regulation
The Case of Patrick Chitongo
On Appeal Expands Expression
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The Islamabad High Court of Pakistan struck down a governmental policy directive allowing the suspension of the licenses of mobile cellular services providers in circumstances outside those provided for under the Constitution. The Respondent Telecommunication Authority argued that the Federal Government was vested with the jurisdiction to issue policy directives on grounds of national security under the Pakistan Telecommunication (Reorganization) Act 1996 (“Act”). The Court reasoned that the policy directive issued by the Government was inconsistent with the Act which only allows suspension of operation of a license when the President has proclaimed an emergency in the exercise of powers conferred under the Constitution, specifically Part X which provides for the suspension of fundamental rights in such emergency .
The appellant, CM Pak Limited, is a licensed service provider of cellular services and the Respondent, the Pakistan Telecommunication Authority, is the Government Regulatory Authority (“Authority”) that grants licenses to service providers. The case was heard together with connected petitions from the customers of the licensed providers of telecommunications services such as the appellant. The appellant claimed that it was compelled by the Authority from time to time to suspend its services on the basis of mere apprehensions relating to avoiding an untoward incident and that this both infringed the fundamental rights guaranteed by the Constitution under Articles 10-A, 9, 15, 16, 17, 18, 19 and 19-A and caused a breach of its contractual obligations to its customers to provide uninterrupted services.
The case centered on the interpretation of Sections 8 and 54 of the Pakistan Telecommunication (Reorganization) Act, 1996 (“Act”). Section 8 empowered the Federal Government to issue policy directives to the Authority while also providing that directives could not be inconsistent with the provisions of the Act itself. Section 8 (2)(c) specifically stated the directives could pertain to requirements of national security and of relationships between Pakistan and the Government of any other country. Section 54(2) provided that “during war or hostilities against Pakistan by a foreign power or internal aggression or for the defense or security of Pakistan, the Federal Government shall have preference and priority in telecommunication systems over any licensee”. Section 54(3) of the Act empowered the Federal Government to suspend or modify an order or license issued under the Act for such time as it may deem necessary, but only “[U]pon proclamation of emergency by the President” and further, that the Federal Government is then required to compensate the licensees for losses suffered as a result of the suspension.
The appellant argued that Section 54(3) only allowed suspension of operations under the licenses if the President exercises the power relating to the proclamation of an emergency under Part X of the Constitution.
The Respondent countered that the Federal Government was vested with the jurisdiction to issue policy directives regarding the closure of telecommunication services due to national concerns, defense and security of Pakistan under Section 8(2)(c) read together with Section 54(2) .
Thus, the issue for the Court’s determination was the “scope of the powers vested in the Federal Government or the Authority to direct the licensed service providers of mobile cellular services to suspend its operations.” [para 8].
Judge Athra Minallah sitting as a single judge delivered the decision of the Court. The underlying issue was “whether the Authority 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 of the Act”.
The Court rejected the submissions of the Respondent Authority and held that, “the legislature, by using clear and unambiguous language, has confined 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)…the Policy Directive issued by the Government is inconsistent with Section 54(3) as the only eventuality contemplated under the Act of 1996 to cause suspension of operation of a license is when the President has proclaimed an Emergency in the exercise of powers conferred in this regard under the Constitution i.e such proclamations which have been described under Part X of the Constitution.” [para 10]. Part X empowers the government to suspend fundamental rights, during an emergency period.
Thus, the Court allowed the appeal against the orders made by the Authority. It declared the impugned “Policy Directive void and without lawful authority and jurisdiction, to the extent of the inconsistency under Section 54(3).” Further, it reaffirmed that “causing the suspension otherwise may expose the Federal Government or the Authority to claims of compensation or damages by the licensees or the users of the mobile cellular services” [para 12].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case expands expression by finding that the Telecommunication Authority’s suspension of telecommunication services by licensed providers was inconsistent with the Constitution.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The judgment originated from the court of a single Judge of the Islamabad High Court and has a binding value on lower courts. However, the judgment was appealed and, on March 21, 2018, a Division Bench of the Islamabad High Court imposed a stay pending its own judgment which is expected in May 2018.
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