muhammad aslam hayat regulatory consultant...•importance of legal analysis in policy proposal 3....
TRANSCRIPT
Muhammad Aslam Hayat
Legal Analysis
Muhammad Aslam Hayat
Regulatory Consultant
CPRsouth 5, Tutorials4- December 2010Xi’an, China
Agenda
1. • Policies in different sectors
2. • Importance of legal analysis in policy proposal
3. • Know the legal structure
4. • Different legal instruments4.
5. • Order of precedence of legal instruments
6. • Policy proposal should contain legal analysis
7. • Two case studies
8. • Piece of advice
Policies for different sector
Monetary Policy
Energy Policy
Mineral policy
Health Policy
Telecom policy
GMPCS Policy
Mobile cellularPolicy
ICT Policypolicy
Education Policy
Economic Policy
In every good policy there is always a chapter of legal analysis or proposed legal changes
Policy
Broadband Policy
Universal Service or
Access Policy
Importance of legal analysis
� Governments & bureaucracy believes in status quo
� Anyone can easily shoot down your proposal by saying its illegal or unconstitutional
Your reaction?
I have checked its not illegal, here is
my analysis
Its not in line with law but I have a proposal about
that too
Oooooooops, I never thought
about it
Your reaction?
Legal structure in a country
• Constitution
Top legal instrument
• National laws• Provincial laws• Local laws
State structure
• Principal legislation
Classification based of hierarchy
• Principal legislation• Act• Ordinance• Royal Decree• Codes (e.g., Civil Code)
• Secondary legislation
• Rules• Regulations• Case law (Judge made laws)• Other instruments of binding nature (Guidelines, notifications, administrative instructions, licenses)
International commitments
• Berne Convention• Budapest Treaty• WIPO
IPR
• Kyoto Protocol
Environment
• WTO
Trade
• WTO• Free trade agreements
• ASEAN• SAARC
Regional
• International Centre for Settlement of Investment Disputes (ICSID) Convention
• New York convention
Dispute resolution
Order of precedence
InstrumentMaker Status
Parliament Laws Binding on ALL
People ConstitutionBinding on all in
country
International bodies
International conventions & agreements
Binding on country
Government PolicyBinding only on
Regulator
Parliament Laws Binding on ALL
Government RulesBinding on Regulator/ sector
Regulator RegulationsBinding only on
sector
Regulator LicenseBinding only on specific licensee
Policy proposal & legal analysis
• Should you propose something which is unconstitutional or illegal?
Fundamental question
• National law • Constitution • an international commitments of country
What would be value of your policy proposal if a single criticism comes that its against
• an international commitments of country
• if its illegal but no legal analysis
No credibility of policy proposal
• its legal• within powers of policy maker/regulator• its his international obligation, which has not been discharged it
On contrary it would add value if analysis suggests that
Case study 1(Regulatory turmoil in Bangladesh)(Regulatory turmoil in Bangladesh)
Regulatory framework in Bangladesh
Laws
Regulator
Policies
Policy makers
National Telecom Policy (1998)
National ICT Policy (2009)
Telegraph Act(1885)
Wireless TelegraphyAct (1933)
BTA (2001)(Under review)
ICT Act(2006)
Broadband Policy (2010)
ILDTS Policy(2007 +2010)
Licensing Frameworks Regulations/Guidelines
MoPT MoS&ICT
MoFPlanning
Commission
BTRC
IGW
SMC
ICX
NIXs
IIG
NTTN
BWA
Call Centers
IPTSPISP with Cyber Café
V-SAT Hub
Interconnection Regulations 2004
Licensing Regulations 2004
NFAP
Numbering Plan 2005
Vehicle Tracking Framework
Video Conference Directive
Infrastructure Sharing Guidelines
Wi-Fi Guidelines
VAS GuidelinesInterim Directive on Tariff 2007
Circular Dec’08(Fees)
Bi-lateral Interconnection
VSAT
BWA License
Call Center License
NTTN License
IIG License
VAS Guidelines
Infrastructure Sharing
ICX License
IGWLicense
IPTSP Guidelines
SMC Guidelines
ISP with Cyber Cafe
NIXs
Pre-ILDTS licensing scenario
Mobile Cellular License ISP
License
NIXs
Call Center
Build BTSLay fiber
SMS/MMS
Voice
Content
Data Services
Cyber Cafe
Vehicle Tracking
WiFi
VSAT
IP TelephonyWiFi
Guidelines
V-Sat Hub License
Video ConfDirectiveVideo Conference
Vehicle tracking framework
Case study 2(License renewal: Tale of two regimes)(License renewal: Tale of two regimes)
License Renewal – A policy issue
Most licensing was done in mid and late ‘90s
License period was 15 to 20 years
Renewal is close but most regulators and governments are Renewal is close but most regulators and governments are not ready
A tale of two regimes
Important issues in renewal
Duration of renewed licence
Services to be covered by service/ operating licences
Tradability of licenses/spectrum
Technology neutral
Renewal fee & payment structureRenewal fee & payment structure
Administrative process or auction
Level playing field and non-discrimination
Eligibility to participate in process
USO / roll-out obligations
Tagging renewal with 3G
Legal framework in BD
Policies Laws
� National Telecom Policy’98
� ICT Policy 2009
� Telegraphy Act 1885
� Wireless Telegraphy Act '33� ICT Policy 2009
� ILDTS Policy 2010
Act '33
� BD Telecom Act 2001� Sec. 38
� BTRC (Licensing Procedure) Regulations 2004� R.5(7)
Nothing in these policies has any provision relating
to renewal
Nothing useful in these laws relating to renewal
Legal Analysis for BD
� Power given to BTRC to prepare framework for renewal gives legitimate expectation to licensees for renewal
No definite framework & process available for renewal
• Still a licensee can not claim renewal as of right
• One can apply for renewal and there is a “hope” of getting it
No vested right Legitimate expectation
licensees for renewal
� Mention of a loose clause in licenses also support this expectation and to some extent reduces absolute discretion of BTRC
there is a “hope” of getting it– but on what terms and
conditions renewal will be offered, is a very difficult question
• Existing provisions in regulatory instruments including licenses do not help in getting guaranteed renewal or renewal on existing terms and conditions
Legal framework in PK
Policies Laws
� Mobile Cellular Policy 2004
� Pakistan Telecommunication (Re-organisation) Act 1996Act 1996� Sec. 22(3)
� Pakistan Telecommunication Rules, 2000� Rule 8
Very clear framework for renewal with license
templates
Guaranteed renewal and licensing certainty
Renewal framework in PK
Rule 8 of Pakistan Telecommunication Rules, 2000
After expiry of initial term, license shall be renewed
Renewal will be on terms and conditions consistent with policy of Federal Government at relevant time
This notice shall terminate license on expiration of initial term
Regulator shall serve a written notice on licensee of at least 1/4th of initial license term
If license is not to be renewed
policy of Federal Government at relevant time
Notice & termination are subject to appeal & judicial review
Licensing certainty in PK
Sec. 22 of Pakistan Telecommunication (Re-organization) Act, 1996
Regulator can only modify a licence or its conditions with consent of licensee
No such amendment shall vary tenure or scope of a license
(1) both shall resolve difference or dispute by consultation/negotiation
In case of disagreement
(2) either party may approach High Court or ICT Tribunal for decision
Policy proposals for PK & BD
Pakistan Bangladesh
� Define process of application
All terms and conditions
� Prepare proper renewal framework (not ad hoc)
� Define rights of licenses� Ensure level playing field
� All terms and conditions of renewed license has to be acceptable
� Govt can’t propose something effect of which is refusal
� Decision be based on principle and international best practices
� Give confidence to renewing licenses (guarantee of tenure, terms, no mid-term change)
Piece of advise
Understand the legal framework of sector you are working on
See if policy proposal can work without change in law
If not, then an analysis that why change is necessary with If not, then an analysis that why change is necessary with some comparative examples and best practices
Explain policy proposal and proposed change in law
Always be upfront and honest if policy proposal is against or perceived to be against law or constitution and then
argue in favor of your proposal