A division bench of IHC comprising Justice Aamer Farooq and Justice Moshin Akhtar Kayani heard the ICA moved by Pakistan Telecommunication Authority (PTA) and adjourned the hearing till the final judgement in a similar matter pending before the Supreme Court of Pakistan.
During the court proceedings, a deputy attorney general appeared before the court on behalf of the federation and said that ICA is not maintainable, adding that as per rules of PTA, it should approach the apex court in this connection.
At this, a lawyer of PTA informed the court that a case related to mobile phone services is already pending before the Supreme Court. Therefore, the IHC dual bench deferred hearing in ICA till the final decision of the Supreme Court in a petition pending before it.
In his 15-page detailed verdict, Justice Athar had said that the petitions are allowed and noted in it, "The actions, orders and directives issued by the federal government or PTA, as the case may be, which are inconsistent with the provisions of section 54(3) are declared as illegal, ultra vires and without lawful authority and jurisdiction."
He added that the federal government or PTA is not vested with powers and jurisdiction to suspend or cause the suspension of mobile cellular services or operations on the ground of national security except as provided in section 54(3) that is regarding proclamation of emergency by the President of Pakistan.
In their petition, CM Pak Limited and others had stated before the court that their fundamental rights are being violated when the cellular services are suspended. In this connection, they had challenged the directives of the PTA.
They had argued that they are licence holders and got radio frequency spectrum through open bidding. The petitioner is being compelled by PTA from time to time to suspend its services on the basis of mere apprehensions which on the one hand infringes on the fundamental rights and on the other causes a breach of company's obligations to the customers that is to provide uninterrupted voice and data services.
Similarly, the petitioners, who are common citizens, had contended that off and on suspension of mobile phone service on security pretext is irksome and a violation of their fundamental rights. They further maintained that the practice is also illegal under the Pakistan Telecommunications (Reorganisation) Act, 1996. They adopted that the mobile phone services usually remains suspended during the protests, sit-ins, Muharram, Rabi-ul-Awal, important funeral and Chehlum, and sometimes during the Lal Masjid cleric's sermons.
The counsel for CM Pak had argued that services under the licence could only be disconnected either under clause 6.21 or clause 6.71 and sub-section 3 of section 54 in case when the President of Pakistan proclaims emergency. The federal government through a policy directive issued under section 8 of the PTA Act cannot empower the Authority to suspend the cellular services in disregard to the provisions of section 54. And if operations are suspended under section 54 then the federal government is required to compensate the licensees for the losses.
The IHC bench said that the federal government is not empowered to issue any policy directive under section 8 of the PTA Act which is inconsistent with section 54(3) ibid. To the extent of inconsistency, the policy directive will be ultra vires and void.