Zong challenged 3G/4G auction of 10MHz block in 850MHz band to Telenor Pakistan

ISLAMABAD ( ABRAR MUSTAFA )

Zong challenged 3G/4G auction of 10MHz block in 850MHz band at base price of $395 Million to Telenor Pakistan held in 2016. Petition filed in Islamabad High Court with prayed that the Policy Directive dated 26.04.2016 and the Telecommunication Policy 2015 and all actions taken by the Respondents Pakistan Telecommunication Authority  pursuant thereof be declared without lawful authority and jurisdiction and hence illegal and void and a nullity in law.  Petitioner  is further prayed that the Respondents may be directed to strictly act in terms of their mandatory obligation under Article 190 of the Constitution of the Islamic Republic of Pakistan, 1973 and in accordance with law and undo all actions as may have been taken pursuant to the said impugned Policy Directive and Policy of 2015 and furthermore notify only those policy directives henceforth as may be duly approved by the Federal Government as provided for under Section 8 of the PTRA 1996. It is further prayed that the Respondent No.2 may be directed to refrain from implanting or acting upon either the Policy Directive dated 26.04.2016 or the Telecommunication Policy 2015 and to forthwith undo any and all steps or actions taken by it in pursuance of the same treating them to be valid policy directives under Section 8 of the PTRA 1996.

CMPak Limited,

A company incorporated under the laws of Pakistan

Having its registered office at 47 Kuri Road,

Chak Shahzad, National Park Road,

Islamabad

……..Petitioner

Versus

 

1 Federation of Pakistan

Through Secretary Cabinet Division,

Cabinet Secretariat, Government of Pakistan,

Federal Secretariat, Islamabad.

2 Pakistan Telecommunication Authority,

through its Chairman, PTA Head Quarters, F5  Islamabad

……..Respondents

 

WRIT PETITION under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

Respectfully Sheweth:-

That Petitioner is a private limited company licensed by Respondent No. 2 under the provisions of the Pakistan Telecommunication (Re-organization) Act 1996 (“PTRA 1996”), to provide inter alia Cellular Mobile services in Pakistan. The Petitioner operates a countrywide network of cellular mobile services providing 2G, 3G and 4G based cellular mobile services having invested billions of rupees and has over ___ million customers across Pakistan. The instant Writ Petition has been filed through the authorized attorney of Petitioner, duly authorized on its behalf by its Board of Directors.

That Respondent No.1 is the Federation of Pakistan as represented by the Federal Government being the Federal Cabinet and the Prime Minister of Pakistan as mandated under the Constitution of the Islamic Republic of Pakistan, 1973 and as conclusively held by the August Supreme Court of Pakistan vide its Judgment 18.08.2016 in the Mustafa Impex case and reported as PLD 2016 SC ___ and as maintained pursuant to the decision on the Review instituted by the Respondent No.1 in respect of the said Judgment. The Cabinet Division by virtue of the Rules of Business, 1973 represents the Cabinet Secretariat and hence the Federal Government.

That Respondent No.2 is the statutory regulatory authority established under the PTRA 1996 in respect of telecommunication matters with its regulatory jurisdiction extending to the whole of Pakistan, including implementation of any policies that maybe framed by the Respondent No.1 from time to time.

That the IT & Telecom Division of the Ministry of Information Technology & Telecommunication issued a Policy Directive on 26.04.2016 purportedly under Section 8(2) of the PTRA 1996 directing thereby the Respondent No.2 to sell the unsold Next Generation Mobile Services wireless spectrum through an auction. It was stated in the said Policy Directive that;

“Based on the recommendations of the Advisory Committee, the Federal Government, using powers conferred by the Section 8(2) of the Pakistan Telecommunication (Re-organization) Act 1996 (Amended 2006), is pleased to issue the following directives for compliance of the Pakistan Telecommunication Authority”. 

It was further stated in the said Policy Directive that;

“The Prime Minister has approved the issuance of this Policy Directive”

 (Copy of Policy Directive dated 26.04.2016 is attached herewith as Annexure A)

That the referred to Advisory Committee was constituted by the Prime Minister of Pakistan and was notified vide an apparent Notification dated 07.12.2015 issued again by the IT & Telecom Division.

(Copy of Notification dated 07.12.2015 is attached herewith as Annexure B)

That the Respondent No.2 bound by a Policy Directive of the Federal Government under Section 8 of the PTRA 1996, and without applying its mind as to whether the impugned Policy Directive was infact duly issued by the Federal Government, proceeded to act upon it to hold an auction of the relevant wireless spectrum. The Respondent No.2 has publicly and specifically on record admitted to having acted squarely in pursuance of the said impugned Policy Directive.

That Section 8 of the PTRA 1996 vests the Federal Government with the power to issue a Policy Directive in respect of different matters pertaining to the telecommunication sector. Such power has to be exercised specifically by the Federal Government and not any ministry or division thereof or even the Prime Minister on his own, as is the case with the impugned Policy Directive.

That the August Supreme Court of Pakistan in its afore noted Judgment not only categorically concluded that the “Federal Government is the collective entity described as the Cabinet constituting the Prime Minister and the Federal Ministers”. It was further held that a statutory power exercisable by the Federal Government if exercised by a Secretary, Minister or even the Prime Minister would be “constitutionally invalid and a nullity in the eyes of the law”.   The August Court on the touchstone of its said conclusions and findings vide its said Judgment further specifically declared ultra vires Section 2(fa) of the PTRA 1996 which sought to define the ‘Federal Government’ as being the Ministry of Information Technology and Telecommunication Division being contrary to the strict Constitutional definition of the Federal Government.

That the August Court in its said Judgment further declared Rule 16(2) of the Rules of Business, 1973 which enabled the Prime Minister to bypass the Federal Cabinet as ultra vires. Therefore, any and all powers exercised by the Prime Minister ostensibly acting pursuant to Rule 16(2) of the Rules of Business also stand as void and non est.

similarly in January 2016 the same Ministry of Information Technology & Telecommunication circulated the ‘Telecommunication Policy 2015’ referring to the same as a Policy approved purportedly by the Federal Government and the Economic Coordination Committee of the Cabinet (ECC). The said Policy of 2015 has since been termed as a Policy under Section 8 of the PTRA 1996 and hence binding on the Respondent No.2 and the Petitioner amongst all other telecommunication licensees.

(Copy of the Telecommunication Policy 2015 is attached herewith as Annexure C)

That the said Policy as is required under Section 8 of the PTRA 1996 required the approval of the ‘Federal Government’ and hence the approval by the Federal Cabinet which remains absent and hence the same at best can be termed merely a policy intent document issued by the stated Ministry of its Telecommunication Division but not a Policy of the Federal Government having statutory recognition.

That neither of the said impugned Policy Directive or the Telecommunication Policy of 2015 were duly approved by the Federal Government and thereafter duly issued by the Respondent No.1 as would be required of any directive or decision of the Federal Cabinet.

That as a consequence of the afore stated invalid policy directives, the Respondent No.2 incorrectly presuming the same to have been purportedly issued by the Federal Government has proceeded to act upon the same and furthermore continues to act upon the same in pursuance of its statutory regulatory obligations and where such actions of the Respondent No.2, stemming from an invalid directive, have a material effect upon the legal and licensed rights of the Petitioner as well as all telecommunication licensees of the Respondent No.2 as well as the millions of telecommunication users in Pakistan.

That in the absence of a valid exercise of any constitutional or statutory power the said impugned policy directive and policy of 2015 are a nullity and all actions pursuant to the same are non est. However, the Respondents No.1 and No.2 being fully aware of the invalidity of the both and more so since August 2016 consequent to the pronouncement of the aforementioned Judgment of the August Supreme Court, continue to recognize and act upon both the impugned policy directive and policy and have further failed to take necessary steps to undo all patently invalid and illegal steps taken pursuant to such impugned directives.

That the said impugned Policy Directive dated 26.04.2016 and impugned Telecommunication Policy 2015 are a nullity in law and all actions taken thereon are void ab initio on the following amongst other grounds;:

 GROUNDS

That under Section 8 of the PTRA 1996 only the ‘Federal Government’ can issue a policy directive which is binding upon the Respondent No.2 and consequent thereto upon licensees of the Respondent No.2 such as the Petitioner. The ‘Federal Government’ is conclusively and categorically defined under the Constitution of the Islamic Republic of Pakistan, 1973 as the Federal Cabinet and the Prime Minister together and so held and determined by the August Supreme Court of Pakistan.  Therefore, any act purporting to be an exercise of a statutory power vesting in the Federal Government without the explicit and actual approval of the Federal Cabinet and the Prime Minister as a singular unit would be a nullity and void ab intio.  The impugned Policy Directive dated 26.04.2016 as admitted by its own contents is a directive, which has been issued by a ministerial secretariat ostensibly on the approval of the Prime Minister alone.  Therefore, the said impugned Policy Directive dated 26.04.2016 is without jurisdiction and void and nullity in the eye of law and hence void ab initio.

That all actions arising out of or consequent to or pursuant to a void authority or direction are deemed non est in law. No act pursuant to a non-existent authorization can acquire legitimacy by virtue of any law and the same is incapable of any form of legal recognition.  Therefore, all actions of the Respondent No.2 which were taken pursuant to or consequent to the impugned Directive of 26.04.2016 being wrongly considered a Policy Directive under Section 8 of the PTRA 1996 being non est are void ab intio and of no legal consequence.

That the ‘Federal Government’ as defined under Section 2(fa) of the PTRA 1996 or the term ‘Federal Government’ as used in any provision of the said statute is by consequence of law the Federal Cabinet and the Prime Minister as defined under the Constitution of the Islamic Republic of Pakistan, 1973. It is for such reason that the August Supreme Court in its Judgment cited as PLD 2016 SC ___ declared Section 2(fa) of the PTRA 1996, which purported to define the ‘Federal Government’ as the Ministry of Information & Technology, as ultra vires.  Therefore, no policy or directive can be issued under Section 8 of the PTRA 1996 pertaining to telecommunication matters except by the Federal Government, which hence requires the approval of Federal Cabinet and the Prime Minister.

That the approval of the Prime Minister without the approval of the Federal Cabinet, as is the case of the impugned Directive of 26.04.2016, has been furthermore held by the August Supreme Court to be without any lawful authority and not an act of the ‘Federal Government’. The August Court has further held Rule 16(2) of the Rules of Business, 1973, which apparently enabled the Prime Minister to bypass the Federal Cabinet as ultra vires.  Therefore, the impugned Policy Directive is without authority and void.

That any rights that arise as a consequence of a void act being devoid of jurisdiction and legal validity cannot be maintained as a void or illegal act does not create consequent rights in favour of any party.

That the Telecommunication Policy 2015 admittedly was at no point approved by the Federal Cabinet and the Prime Minister. It was purportedly presented by a ministerial secretariat before the Economic Coordination Committee, which is a committee of the Federal Cabinet.  The ECC is neither the Federal Cabinet and nor does it carry the authority of the Prime Minister.  Therefore, an approval by the ECC cannot be deemed to be the approval of the ‘Federal Government’ and hence the impugned Policy of 2015 is without authority in so far as it is represented as or relied upon as a policy pursuant to Section 8 of the PTRA 1996.

That whereas Section 8(2A) of the PTRA 1996 provides that in addition to the ‘Federal Government’ as authorized under Section 8(1) and 8(2) of the PTRA 1996, the ‘Cabinet or any committee authorized by the Cabinet’ to issue a policy directive which may be binding upon the Respondent No.2. Without prejudice to the ensuing ground, while the ECC is an admitted committee of the Cabinet, the same requires specific authorization by the Federal Cabinet under Section 8(2A) of the PTRA 1996 to consider a policy matter and decide on behalf of the Federal Cabinet further subject to Rule 17(1)(c) of the Rules of Business, 1973 and specifically the Terms of Reference of the ECC as required to be framed under Rule 17(2) of the Rules of Business, 1973.  In the absence of the same, the ECC had no jurisdiction or authority to consider or approve the impugned Telecommunication Policy 2015 and for the same to be represented as a policy having the legality attached to directives issued under Section 8 of the PTRA 1996.

That the ‘Cabinet’ or its committees as referred to in Section 8 (2A) of the PTRA 1996 prima facie was provided as an exception to Section 8(1) and 8(2) when ‘Federal Government’ as provided for under such Section 8 was incorrectly understood to mean the Ministry of Information & Technology. Hence by providing the exception the power to issue policy directives was additionally vested in the Cabinet or its authorized committees.  However, subsequent to the Judgment of the August Supreme Court cited as PLD 2016 SC ___ it has become clear that the term ‘Federal Government’ would mean the Federal Cabinet and the Prime Minister together rather than any specific ministerial secretariat.  Therefore, the reference to the Cabinet in Section 8(2A) of the PTRA 1996 can only be read as meaning the ‘Federal Government’ since anything to the contrary would lead to the absurd conclusion and interpretation that by virtue of a legislative exception the Constitutional definition of the ‘Federal Government’ stands amended and the consequent exclusion of the Prime Minister from an authority otherwise vested in the Prime Minister as a part of the ‘Federal Government’.  Therefore, Section 8(2A) of the PTRA 1996 if not interpreted to mean that the reference to the Cabinet means the Federal Government by harmonizing all the sub provisions of Section 8 thereof, the said Section 8(2A) of the PTRA 1996 would be ultra vires the Constitution of the Islamic Republic of Pakistan, 1973.

That under Article 189 read with Article 190 of the Constitution of the Islamic Republic of Pakistan, 1973 it was incumbent upon the Respondents to have taken necessary steps to undo all that had been done pursuant to the admittedly void Policy Directive dated 26.04.2016 and Policy of 2015 as well as correct the public record previously incorrectly claiming both to be directives issued pursuant to Section 8 of the PTRA 1996. The Respondents have failed to do so even though a considerable time has elapsed since the said Judgment of the August Supreme Court of Pakistan, 1973.

Any other grounds or questions of law that may arise and may be submitted by the Petitioner at the time of hearing.

That in view of the grounds enumerated herein and as may be submitted during hearing it is respectfully submitted that the Policy Directive dated 26.04.2016 and the Telecommunication Policy 2015 being without lawful authority and void and not capable of recognition as statutory binding policies under Section 8 of the PTRA 1996, the Respondents be directed to refrain from acting upon or treating the same as statutory policies and take appropriate steps to forthwith undo all actions as may be taken in pursuance of such void directives.

WHEREFORE, it is respectfully prayed that the Policy Directive dated 26.04.2016 and the Telecommunication Policy 2015 and all actions taken by the Respondent No.2 pursuant thereof be declared without lawful authority and jurisdiction and hence illegal and void and a nullity in law.

It is further prayed that the Respondents may be directed to strictly act in terms of their mandatory obligation under Article 190 of the Constitution of the Islamic Republic of Pakistan, 1973 and in accordance with law and undo all actions as may have been taken pursuant to the said impugned Policy Directive and Policy of 2015 and furthermore notify only those policy directives henceforth as may be duly approved by the Federal Government as provided for under Section 8 of the PTRA 1996.

It is further prayed that the Respondent No.2 may be directed to refrain from implanting or acting upon either the Policy Directive dated 26.04.2016 or the Telecommunication Policy 2015 and to forthwith undo any and all steps or actions taken by it in pursuance of the same treating them to be valid policy directives under Section 8 of the PTRA 1996.

Ad-interim relief in terms of suspending the operation of the said impugned void directives and restraining the Respondents from acting upon the same be also granted.

Any other relief, which this Honourable Court may find just and proper may be graciously granted.

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