No phone calls and no text messages could be the future for Papua New Guineans who haven’t registered their SIM cards, while telcos could receive fines. Will they get a second chance? Amanda Watson explores.

Ombudsman Commission in-house lawyers Mathew Kik, Vergil Narokobi and Robert Homi leaving the court on their way to discuss SIM card registration. Credit: Amanda H A Watson

Last month, the Supreme Court of PNG declined to answer questions asked of it regarding the SIM card registration regulation of 2016. The direct impact of this court hearing is that unregistered SIM cards currently in use in mobile phones around the country will likely be deactivated.

A recent news article suggested that 40 per cent of SIM cards in use are unregistered. Unless the regulator, the National Information and Communications Technology Authority (NICTA), grants the users of these unregistered SIM cards additional time, these people will find themselves no longer able to make phone calls, send text messages and so on.

A full bench of the Supreme Court heard the case on Wednesday 18 December 2019. The five judges sitting were justices Salika, Kandakasi, Cannings, David and Hartshorn. They did not reach a decision as such. Instead, they declined to give an opinion regarding questions asked of the court by the Ombudsman Commission.

The court proceeding was Supreme Court Reference 1/2019, which was instigated by the Ombudsman Commission early in 2019 as a special reference pursuant to section 19 of the constitution.

In essence, what this means is that the Ombudsman Commission questioned the constitutionality of mandatory SIM card registration. The significance of this case is that deactivation of SIM cards was on hold for most of 2019 whilst this matter was awaiting resolution.

The SIM problem

The SIM card regulation stemmed from the NICTA Act. The Commission tried to argue that the regulation restricts certain freedoms enshrined in the constitution and therefore such a regulation should have to go through Parliament.

The Commission’s first question of the court did not specify any act or regulation, but instead asked the court to consider whether or not a regulation which impacts upon freedoms should be passed by a majority in Parliament even though it is linked to an act which has been through the same process. The Commission submitted two further questions to the court, but these were not discussed in detail because judges interrupted the Commission’s presentation to ask about the express rights being infringed.

‘The outcome of this court hearing could have a very real impact on the people who live in rural and remote communities across PNG, where mobile phones provide the only available form of communication.’

Lawyer Charles Kaki from Kawat Lawyers was representing NICTA. He said that the first question was too general and stated that the second and third questions stemmed from the first one. He said that the submission was incompetent and suggested that perhaps the court could direct the Ombudsman Commission to re-frame the questions. Lawyer Tauvasa Tanuvasa Chou-Lee, the Solicitor General of PNG, suggested the court should decline to answer the questions raised by the Ombudsman Commission.

The judges conferred amongst themselves and then announced they had decided to decline to give an opinion on the three questions put to them. They said that the questions have no immediate relevance to circumstances in PNG.

Outcome and real impact

The outcome of this court hearing could have a very real impact on the people who live in rural and remote communities across PNG, where mobile phones provide the only available form of communication. There is now no legal impediment to NICTA imposing the regulation, which means that telecommunication companies will face large fines if there are unregistered SIM cards in use.

I hope that NICTA will choose to grant additional time for SIM card registration. Ideally, financial resources could be mobilised so that additional efforts can be made to promote registration and explain the reasons for registration. To effectively reach the remaining users, registration teams would need to travel to remote areas, which would obviously be a costly and time-consuming process.

At this time though, with the PNG economy struggling and government coffers stretched towards their limits, it is difficult to imagine where such resources would come from.

Dr. Amanda H A Watson is a Research Fellow with the Department of Pacific Affairs, Australian National University. Her research focuses on mobile phone use in PNG, including strategic uses and regulatory issues. This is an edited version of the article first published in Devpolicy.