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