Bangladesh - independent regulator

Telecoms watchdog made all too mighty

The caretaker government on December 22 approved an ordinance amending the Telecom Act, 2001 bypassing the telecoms ministry and in contradiction with existing laws, making BTRC extraordinarily powerful.

The approval appears surprising as earlier that month the finance ministry rejected BTRC's proposal to amend the Act to make it more powerful and financially independent.

The finance ministry observed that many of the proposals violate the constitution.

The ordinance gives Bangladesh Telecommunication Regulatory Commission (BTRC) authority to call law enforces for any reason and any time to arrest persons violating the Act without warrant. It also says in dealing with telecoms related crimes, the punishment outlined in the ordinance will overrule any other laws of the land.

One of the major parts of the amended ordinance styled "Amended Telecom Act-2008" is that the telecom watchdog will have full control of inquiry and investigation of any violation and at the same time no court can execute trial without report from BTRC investigators.

It empowers the BTRC chairman is to appoint any of commission officials as an investigation officer to investigate related offences.

As per the amended ordinance (Section-18, clause-18), BTRC can recruit manpower and fix up their salary as per their wish without notifying the government concerned bodies concerned.

Besides, it dictates a maximum financial penalty of Tk 500 crore instead of earlier Tk 10 lakh for violation of any section of the Act.

Telecoms ministry sources say in the all inter-ministerial meetings the ministry officials stood against the BTRC proposals. But the commission had it approved apparently by convincing the Ministry of Law and other authorities concerned, they add.

Finance ministry insiders say the new judicial power of BTRC officials enacted in the ordinance was beyond their knowledge. In the inter-ministerial meeting they rejected BTRC's intention to have independence in recruitment and salary.

Other parts of the ordinance could have been scrutinised by the Ministry of Law, the sources say.

"There is no scope for us to do anything about the ordinance. What we opposed was passed by the government," says a high official of the telecom ministry who attended a series of inter-ministerial meetings.

The amended telecom ordinance is out of 117 ordinances promulgated by the immediate-past caretaker government to be tabled as bills in parliament to make them laws.

Eminent citizens say it should not be passed in a democratic parliament, as laws of the land didn't follow its amendment.

"No government organisation can recruit manpower and fix up their salary as per their wish. Such ordinances should be dismissed," said former adviser Hafiz Uddin Khan.

Citing an example he said some other organisations like the Supreme Court, Auditor General Office and Election Commission had also sought such independence. But it did not happen as it mismatches with the present administrative rules and regulation.

"BTRC is not so important a commission, which must have independence in recruitment and fixing up employees' salary," said Khan.

He also expressed disappointment to see the ordinance approved just seven days before the parliamentary elections. "There was no reason to hurry. A caretaker government can amend laws that are very necessary to keep the country peaceful."

"It's an unfortunate job done by the earlier un-elected government," he observed.

Regulatory Reforms Commission (RRC) Chairman Dr Akbar Ali Khan said the ordinance should be discussed in parliament. "The concerned parliamentary committee should scrutinise the ordinance whether it is truly good for the country," he added.

According to the finance ministry's observation about BTRC's proposal of recruitment and fix up salary, as no organisations in the country requires such financial freedom and the telecom watchdog cannot exclusively get the power.

Besides, a regulator's job is to monitor whether any unlawful activities are occurring in the industry. It should not work as a revenue collector, the officials of the ministry repeatedly pointed out at the meetings.

The ministry sources say some other organisations such as the central bank had also sought such independence long ago. "But that did not happen due to constitutional obligations," comments a high official of the ministry.

The official adds the finance ministry rejected the proposal also because if one gets it, other regulators might seek such independence.

The BTRC chairman yesterday said the commission had no scope to amend the law. "The amendment came mainly after the telecom ministry's proposal and BTRC was present there as an audience."

He admitted that BTRC will enjoy more independence than what it enjoys now as per the Telecom Act-2001.

He said not only BTRC, Energy Regulatory Commission enjoys full independence in recruiting manpower and fix up salary. In this case, the establishment ministry approved the proposal.

"The finance ministry denied our proposal to keep 5 percent of the total annual earnings of BTRC for its expenditure. And then we cut the proposal."

Some salient features of the amendment to the Telecommunication Act, 2001

A) The BTRC can recruit officials or consultants and fix their salaries as per its wishes without government's permission [section-18, subsection-(3) (a) (c)].

B) If any operator violates the Telecommunication Act, regulations or licence conditions, the BTRC can penalise up to Tk 500 crore instead of the previous Tk 10 lakh [section-46 (3) (d)].

C) The BTRC can seize equipment of any operator if it violates telecom rules and regulations and can appoint administrators to run the company [section-46 (3) (f)].

D) All offences declared in the ordinance will be treated as cognisable and no court can commence trail without BTRC report [section-77 (1) (2)].

E) Trail of offences would be conducted by magistracy instead of sessions court [section-77 (3)].

F) The BTRC shall have full control over enquiries and investigations of any telecom offence. The BTRC chairman can appoint any of his officials as investigation officer to detect offences in the telecom sector [section-78 (1) (2)].

G) The investigation officer will act as an officer-in-charge of a police station and can impose any legal action [section-78 (5)].

F) A BTRC investigation officer's findings would be treated as a police report [section-78 (5)].

H) The investigation officer can seek necessary support from any government agencies which are obliged to provide support [section-78 (11)].

I) The BTRC can appoint its own lawyers as special public prosecutors and especial government pleaders [section-80 (1)].