Posted in Legislative Analysis, Political Institutions on Nov 04, 2019

The Bill’s objective is to create an independent body to supervise the information and tele-communications industries, and the postal service. The Commission aims to make decisions, in line with law, that are transparent and based on technological understanding and expertise.

Formation of the Commission

To form the Myanmar Telecommunication Commission, a Commission Member Selection Committee (CMSC) will first be formed and will call for applications. A list of candidates who meet the prescribed criteria in the Bill will be sent to the President, and he will finalise the commission’s membership of between 3 and 5 members.

Calling for applications is to be a transparent process, publicised online and in the media, al-lowing suitably qualified individuals to compete for selection. This is the first such applica-tion process for a Union-level position.

This open process for committee membership is a positive step and an improvement on the normaly quite opaque procedures the government takes to appoint committee membership. However, we should watch the process with interest to see whether biases and other irregu-larities can be overcome, and a fair selection made.

Policy & Accountability

However, alarmingly, the Bill says that the Chair of the Commission will be at ‘Union Min-ister level’. Creating a ministerial-level position with law is very dangerous for setting poli-cy and accountability.

Currently, the government body with overall responsibility for information and telecommu-nication technology laws, rules and regulations is the Ministry of Transport and Communica-tions (MoTC). The creation of a new commission under this Bill, would have the effect of establishing a parallel body to monitor the same sector. And the Commission is not answera-ble to the MoTC, but directly accountable to the President. Therefore, this Bill is like adding layers of new complexity, creating an overlap of two bodies, both able to set policy and take decisions. It has not been adequately explained how this is intended to work.

Furthermore, does creating a Commission with a ‘Union Minister level’ Chair effectively create a new Ministry, and therefore contradict the NLD manifesto commitment to “reduce the number of government ministries in order to decrease government expenditure and estab-lish a lean and efficient government.”?

Recommendations

(1) Confusing interaction with other laws

It is not clear how the role of the new Commission differs from the current duties of the MoTC, and this clarity should be provided. There are also a number of ways that the duties of the new Commission are confused with existing laws.

For example, there is a question of whether the powers of administering penalties included in other information and telecommunication technology laws (i.e. the Telecommunications Law 2013 & the Electronic Transactions Law 2004) should be transferred to the new Com-mission after the approval of this Bill.

The Bill says the Commission can exercise powers relating to implementation and manage-ment of existing information and telecommunication technology laws. It can also investigate matters relating to the violation of these laws, and the conduct of licence, permit and certifi-cate holders. Article 53 of the Bill adds that when a by-law, announcement, order, directive or procedure of other information and telecommunication technology laws are against its provisions, the new Bill overrides the former.

But the Electronic Transactions Law 2004, which formed an Electronic Transactions Central Body and Supervisory Body, also says that if the provisions of existing laws are against this Law, that Law takes precedence. How are the telecommunications industry or the courts supposed to interpret two separate pieces of legislation that both claim supremacy over the other?

Putting Articles in Bills of this nature is a slightly lazy alternative to properly reviewing and repealing Laws that may be contradictory, and points to the need for a proper pre-legislative review of existing Laws before new legislation is drafted.

Article 60 of the Bill says the Commission can exercise the provisions of Chapters 16, 17 and 18 of the Telecommunications Law 2013. Those chapters concern administrative penal-ties, formation of the appellate body and penalties.

In the Telecommunications Law, those who are dissatisfied with the decisions of the Posts and Telecommunications Department can make an appeal to the Ministry and from there, to an appellate body formed by the Union Government.

However, under the new Bill, if the Department is to become the administrative office for the new Commission it is left unclear whether the Ministry, or the Commission, will hear ap-peals. Before approving the Bill, these issues should be examined closely.

(2) Should existing laws be amended/ revoked?

The Electronic Transactions Law 2004 is outdated, passed during the Military Junta by the State Peace & Development Council. It is widely viewed as a law designed to control and suppress media freedom. Therefore, the legislature should consider whether discussion of this new Bill creates an opportunity to repeal the 2004 law, or combine it with the forthcom-ing Cyber Security Law.

Similarly, Article 66(d) of the Telecommunications Law 2013 has been widely abused to curtail freedom of expression. Could this new Bill present an opportunity to repeal this arti-cle which is so open to abuse by authorities looking to deny people their rights?

(3) Is the law necessary?

As the country is heading towards a market-oriented economy, the information and tele-communication sector needs a coordinating body to ensure a level playing field for competi-tion and to ensure consumer choice. However, the creation of such a body does not neces-sarily mean a new/separate law.

The current Myanmar Telecommunication Commission was formed with Announcement No. 125/2015 of the Union Government. Its formation was stipulated in Article 86 of the Tele-communications Law. The Article identified the need to form an independent Myanmar Tel-ecommunication Commission, albeit without setting out exact procedures. The Union Gov-ernment announcement in 2015 placed a duty on the existing commission to draw up a law to create the new Commission. Did this announcement override the provisions of the Tele-communications Law?

Also, the formation of the National Telecommunications Advisory Committee was made with Announcement No. 19/2014 of the Ministry of Communications, Post and Telegraph. Does this precedent mean that the Myanmar Telecommunication Commission can be created through a government announcement rather than with a new law? And if legislation is re-quired, it would seem more straightforward to amend the Telecommunications Law so that it incorporates the formation of the commission, rather than to draw up a separate/new law.

Lastly, one could be forgiven for wondering what this unusual process is really all about. What is the purpose of creating a new Union Minister level position? Why is the government appearing to bypass the authority of the MoTC? What is the purpose of creating commis-sions to create commissions to create commissions? Such strange goings-on lead us wonder what is really happening in the corridors of power.