23 March 2018
By Haroon Baloch, Journalist and Digital Rights Researcher
In late February 2018, in a landmark judgment, the Islamabad High Court (IHC) ruled that shutting down telecom networks was illegal, rejecting the State’s rationale that security considerations made such shutdowns necessary.
Pakistan has a history of network shutdowns during public gatherings and events. The court termed the shutdowns as ‘illegal’ and ‘inconsistent’ with legal provisions.
For some years now, the prevailing practice in Pakistan has been that citing apprehensions of unforeseen security circumstances, including potential terrorist attacks. The Pakistan Telecommunication Authority (PTA), the country’s telecom regulator, has suspended mobile networks in major cities. In some cases these suspensions have lasted for prolonged durations. The shutdowns are often unannounced.
In 2016, with the help of four citizens, advocate Umer Gillani launched and filed a public interest petition in IHC against this unjust practice.
The report 'Security V. Access: The Impact of Mobile Network Shutdowns in Pakistan' contained very important findings on this practice and established that such network interruptions are disproportionate,
Gilani said:
“This wouldn’t have been possible for me, had the wonderful research on this issue not been available. "Security V. Access: The Impact of Mobile Network Shutdowns in Pakistan" contains very important findings on this practice and established that such network interruptions are disproportionate, and do not justify the denial of fundamental rights and access to emergency services merely on apprehensions of unforeseen security challenges.”
The report was based on research in 2015 in Pakistan, which was conducted by Bytes for All Pakistan, an Islamabad-based organisation, with its international partners, IHRB, and Center for the Internet and Human Rights.
Security vs Access
This unprecedented verdict has been largely welcomed by individuals and groups which are at the forefront of digital rights struggle in Pakistan, and across the globe. It has in fact become a precedent for other countries’ courts in the region where similar network shutdown trends are rampant, for instance in Indian-held Kashmir.
In Pakistan, these network disruptions have left citizens handicapped, as they are unable to access emergency health services, online banking, transport...
The verdict is significant and will contribute to global efforts of fight against arbitrary network disruptions.
Such disruptions are grave because of the scope of fundamental rights being violated. In Pakistan, these network disruptions have left citizens handicapped, as they are unable to access emergency health services, online banking, transport, and so on.
The state can challenge the verdict in the supreme court.
Umer says the case could have been decided on larger grounds, which go beyond the confines of section 54 of the Pakistan Telecommunication (Re-organization) Act, 1996, and does justice to the fundamental rights guaranteed under the constitution.
The honorable judge in the case, Justice Athar Minallah, did not specifically acknowledge the fundamental right to access telecommunications as being an integral part of the right to life protected under article 9, read with articles 4, 10(a), 15, 16, 17, 18, and 19(b) of the Constitution.
In several instances in the past, higher judiciary in Pakistan has interpreted the right to life as a right defined to encompass access to basic necessities such as electricity, natural gas and healthy environment. For example, in 1994, the Supreme Court had ruled in Shehla Zia v. WAPDA [PLD 1994 SC 693] case that access and maintenance of healthy environment for citizens is their right to life. Similarly, in Khawaja Asif v. the Federation [PLD 2014 SC 206] case, the apex court termed the access to natural gas as the right to life.
This shows growing recognition that in modern times, life without these necessities would be crippled, because these services are essential to facilitate our day-to-day activities. That is the essence of the Supreme Court’s interpretation. In the network shutdown petition, the petitioners had pled to the court to declare telecommunication right as the right to life, but the court did not rule on that.
The Responsibility to Respect Requires Action
The judgement is also silent on the issue of telecom companies’ responsibility vis-à-vis its consumers. Under telecom rule 7, a telco is bound to give prior notice of suspension, interruption, or disconnection of services to its telecom consumers. Such notices must also disclose the reason for suspension or disconnection of services.
Telcos had never challenged PTA’s directives, and through their silence, they became part of government’s encroachment upon citizens’ human rights.
Moreover, the responsibility of providing continued access to emergency services’ numbers during disconnections lies with the telcos. However, the majority of telcos and internet service providers of Pakistan do not do this. Companies operating in the sector in Pakistan include global telecommunication players including VEON (formerly VimpelCom), Telenor Group, and China Mobile Telecommunication Company.
According to UN Guiding Principles for Business and Human Rights, business enterprises should respect human rights, which means they should not infringe upon human rights of others; rather, they should address adverse human rights impacts due to their conduct. The telecom sector has significant impacts on human rights, which include privacy, government surveillance, supply chain labour standards, health and safety, and access to telecommunications. Many telcos have expressed their commitment to uphold international human rights standards. However, their efforts to vigilantly protect rights falls short, at least partly because of governmental actions and orders in Pakistan.
Arbitrary shutdowns in Pakistan are not new. Officially, they have been happening since 2012. However, telcos had never challenged PTA’s directives, and through their silence, they became part of government’s encroachment upon citizens’ human rights.
The UN Guiding Principles are very clear on human rights due diligence. Business enterprises are bound to identify and assess any actual or potential adverse human rights impacts with which they may be involved either through their own activities or as a result of their business relationships.
In Pakistan, the telcos had never consulted their consumers or concerned stakeholders on the issue of arbitrary shutdowns by the government. Such consultations would have enabled them to gauge the range of human rights being affected or violated, and they could have sought their opinion on future course of action.
It was only in 2016 that China Mobile Communications Pakistan submitted its First Appeal Against Order (FAO), and that too only after the IHC sought responses from the telcos while hearing a public interest petition.
Telenor Pakistan did however cooperate with Bytes4All and IHRB in its 2015 research on network shutdowns, which provided the basis for the current petition.
Proportionate and Lawful
Now is the right time for companies to positively engage with the Government and other stakeholders for future course of action.
Network shutdowns by the state have been justified as a counter-terrorism measure, but the IHC verdict has shown that the measure is disproportionate. According to the Court's interpretation of Section 54(3) of Pakistan Telecommunication (Re-organization) Act, 1996, the only available legal ground for shutting down telecommunications networks is proclamation of emergency in the country by the President of Pakistan, which is a rare case. That also means, if there is not emergency imposed by the President, network shutdowns should not happen.
If there is not emergency imposed by the President, network shutdowns should not happen.
However, security is a legitimate concern for the state, and most security and human rights experts agree that time-bound, legal shutdowns to address a specific imminent risk are justified under law. But governments have often used the powers to justify disproportionate and widespread shutdowns. Among the recommendations outlined in the 2015 report, the following remain relevant today.
- Network shutdowns should only be invoked in cases of real and imminent threats.
- Shutdown should be limited in duration and area and be proportionate to the perceived risk.
- Where possible, the public should be informed of the shutdown, geography, and duration.
- Emergency services should remain available during shutdown.
- Laws should be subject to ongoing review.
Only such clearly established procedures will ensure that shutdowns are proportionate and lawful, and it will clarify to the companies what their obligations are – to the state and to the users, who are the rights-holders
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