t the end of 2024, Top10VPN (an independent platform collecting and aggregating data on internet disruptions around the globe) ranked Pakistan as the single most affected nation by internet shutdown ($1.62 billion), followed by Myanmar ($1.58 billion) and Sudan ($1.12 billion). This cost, according to the report, is calculated using the Cost of Shutdown Tool developed by NetBlocks, a global online internet monitor tracking internet censorship and disruption. Earlier, in 2023, the Pakistan Institute of Development Economics had calculated a direct cost of Rs 1.3 billion to the businesses (or 0.57 percent of daily gross domestic product) per day in the country.

In the age of digital transformation and artificial intelligence, online connectivity or access to uninterrupted and quality internet has become a necessity. The supply of uninterrupted and quality internet is so vital that the Senate’s standing committee on information technology also took up the issue last week. However, during the meeting, the issue of legality of internet shutdowns appeared to be critical on the agenda. The “committee members questioned the telecom regulator’s chief over the practice of shutting down internet services, particularly on orders from the Ministry of Interior.”

Maj-Gen Hafeezur Rehman (retired), the Pakistan Telecommunication Authority chairman, stated that “the rules allowed the Interior Ministry to direct the regulator to block content or services but emphasised that the law did not specify the blocking of internet services in any particular area.” Reportedly, he further said, “internet shutdowns have been taking place since 2016. Nevertheless, their legality has been questioned only recently.” He also admitted that “blocking access to the internet was a ‘legal grey area.’”

This statement by the PTA chairman calls for a thorough review of the legal framework and jurisprudence concerning internet shutdown as he himself asked the ministries of law and interior to justify its legality. This also opens the door to review and analyse the law relating to internet shutdown in Pakistan.

Apparently, the PTA treats internet as a “telecommunication service.” Therefore, it issues licences to internet service providers (ISPs) for provision of internet services to the consumers in Pakistan. The Pakistan Telecommunication (Re-Organisation) Act, 1996, hereinafter referred to as “the Act”, defines “Telecommunication Service” as “a service consisting in the emission, conveyance, switching or reception of any intelligence within, or into, or from, Pakistan by any electrical, electro-magnetic, electronic, optical or optio-electronic system, …” The term “intelligence” is defined as “any speech, sound, data, signal, writing, image or video.”

The legality of the shutdown/ disruption of cellular phone services as telecommunication services – not internet, specifically – was first questioned in the Islamabad High Court in 2017, when a cellular company challenged PTA orders for suspension of mobile cellular services. In CM Pak Limited vs The Pakistan Telecommunication Authority (PLD 2018 Islamabad 243), the IHC thoroughly assessed the powers of the PTA to suspend telecommunication services. The court observed that Section 8 of the Act empowers the federal government to issue policy directives to the authority as and when it considers necessary. However, such directives, issued by the federal government, cannot be inconsistent with the provisions of the Act of 1996. Specifically, Clause ‘c’ and Sub-Section 2A of Section 8 are relevant to the issue of suspension of telecom/ internet services. It states:

(2) The matters on which the Federal Government may issue policy directives shall be –

(c) requirements of national security and of relationships between Pakistan and the Government of any other country or territory outside Pakistan and other States or territories outside Pakistan.

(2A) Notwithstanding anything contained in Sub-Section (2), the Cabinet, or any committee authorised by the Cabinet, may issue any policy directive on any matter related to telecommunication sector, not inconsistent with the provisions of this Act, and such directives shall be binding on the Authority.

It appears that Sub-Section 2A of Section 8, authorises the federal cabinet or its authorised committee to issue any policy directive under this provision even if we ignore the famous Mustafa Impex Case. Besides, the term “national security” is used in short heading of Section 54 of the Act. Moreover, Sub-Section 3 of Section 54 is directly related to the issue of suspension of operation, functions or services of any licensee.” It states:

(3) Upon proclamation of emergency by the President, the Federal Government may suspend or modify all or any order or licences made or issued under this Act or cause suspension of operation, functions or services of any licensee for such time as it may deem necessary.

The IHC, in the case referred above, observed that the power vested under Section 54(3) has been expressly confined to the eventuality or happening of the “proclamation of emergency by the President.” The court also found that there is no other provision in the Act which vests the power or jurisdiction in either the authority or the federal government to suspend or cause suspension of operations, functions or services of a licensee on the grounds of “national security.”

For Sub-Section 2 of Section 54, the IHC held that “the said provision can only be invoked in the eventualities described therein i.e. (i) war; or (ii) hostilities against Pakistan by any foreign power; or (iii) internal aggression; or (iv) defence or security of Pakistan. “Apprehensions relating to public safety, law and order or the happening of an untoward incident can by no stretch of the imagination attract Section 54(2).” Moreover, Sub-Section 2 of Section 54 speaks about the federal government’s priority over the licensees in the use of telecommunication systems in the specific situations, and not about its powers to suspend telecom services.

It is important to note that the order of the IHC was overturned by a division bench of the Supreme Court of Pakistan, consisting of Justice Umar Ata Bandial and Justice Qazi Muhammad Amin Ahmed (PLD 2020 Supreme Court 551). The Supreme Court held that “the impugned judgment failed to examine the impugned suspensory directions [issued by the PTA] in the context of the power conferred on the PTA.” Therefore, the Supreme Court considered that the impugned judgment arrived at a hasty and incorrect conclusion.

With due respect to this decision of the Supreme Court of Pakistan, one must point out that the validation of power of the PTA to issue ‘suspensory directions’ under the policy directives of the federal government appears to be a misinterpretation of the law. The judgement (in PLD 2020 Supreme Court 551) does not address the question of legality of the impugned policy directives of the federal government. Nevertheless, the IHC judgement clearly stated that the federal government can issue a policy directive only in specific situations. It held that issues of public safety, law and order or untoward incidents did not constitute these ‘eventualities.’

The Supreme Court judgment apparently equates “national security” with “public safety.” This equation appears to be against the letter and spirit of the law. The SC judgment also takes an incorrect view in stating that Section 8(2)(c) of the Act empowers the PTA to take steps pertaining to matters of national security, diplomatic protocols and state functions. The section is about the powers of the federal government, not those of the PTA.

The SC judgment should ideally be impugned before a larger bench of the Supreme Court for further clarity on the subject. From a careful analysis of the legal provisions, it appears that the law allows the federal government to issue policy directives for “suspension of telecom services” or ‘internet shutdown’ only in the context of “national security” under Sub-Section 3 of Section 54 of the Act of 1996, if there is a proclamation of emergency by the president pursuant to powers vested under Part X of the constitution i.e. Articles 232 to 237. Any other directive is illegal and unconstitutional.

The writer is an Islamabad-based law and policy specialist on media, internet and communications and heads the Institute for Research, Advocacy and Development (IRADA) / IRADA Foundation. He can be reached at aftabadvocate@gmail.com