Introduction
Two very important pieces of legislation to which the Jagdeo administration had committed itself are now before Special Select Committees of the National Assembly working feverishly overtime to ensure that this legislation is passed before the Ninth Parliament comes to an end. The two are the Access to Information Bill 2011 and the Telecommunications Bill 2010. A third issue being addressed by a Select Committee is one dealing with campaign financing introduced by AFC prime ministerial candidate Sheila Holder, although it is reportedly receiving little support from the PPP/C which with the resources of the state at its disposal seems to have little interest in such esoteric matters.
In today’s column I will consider the Access to Information Bill and begin a review of the Telecommunications Bill which I believe has a number of implications even beyond the development of the telecommunications sector and by extension the rest of Guyana. When these two Bills emerge from their respective select committees they will not have had the full benefit of the parliamentary opposition because it opposed the deferment of the recess by the government, which is determined to ensure that the two bills are passed and assented to by President Jagdeo before he leaves office.
Access to information and campaign financing were two of the areas on which US President Carter might have thought he had had some kind of commitment from President Jagdeo when he left Guyana in 2003. Indeed President Carter, whose Center had spent years and millions of dollars on the now forgotten National Development Strategy, in his parting press statement on August 19, 2004 – a full seven years ago – noted that he had offered his Center’s technical and financial resources to the Government of Guyana in developing access to information and political campaign financing legislation.
Access to Information
Last Friday I appeared before the Special Select Committee on the Access to Information Bill to which I had earlier made a written submission. Based on some research on similar legislation particularly that closer to home I am convinced that our Bill serves no purpose other than to say we have access to information legislation. The whole structure of the Bill is wrong: only one of seven directors is to be appointed on the recommendation of the Leader of the Opposition; the control of information is in the hands of a single political appointee; there is no provision for an oversight mechanism; the only effective complaint mechanism is the High Court; the information czar is allowed a period of thirty days of receipt of a request merely to acknowledge it and sixty days to advise the applicant if the request is approved or denied. On top of these the Bill provides for so many exemptions that I would be surprised if it will ever be used by more than a dozen or so persons annually.
Systemic problems
As I reflected on my past experiences with select committees there are at least five problems that struck me concerning the formulation of legislation in Guyana. The first is the adversarial nature our parliamentary culture which extends to the select committees. This culture places persons and citizens in rival camps and the camp becomes more important than the contribution or the message. This would mean that if a submission comes from Clive Thomas or a Christopher Ram it must be rejected since that is considered as yielding in to the “opposition.”
The second which derives partly from the first is that a Bill is either a government Bill or an opposition Bill. If the Bill comes from the opposition, as sometimes happens, the government members of the select committee feel compelled to oppose it. If it is a government Bill, the government members likewise are compelled to support it – even if it or any part of it offends their principles or their intellect. For example there are several pieces of legislation that have passed through select committees and the National Assembly which seem to be unconstitutional. I cannot accept that an Anil Nandlall or a Raphael Trotman who are on the Access to Information Select Committee would not be aware of such instances, and possibly in respect of the Access to Information Bill they are considering. I would, under normal circumstances, expect them to say to the Chairperson: “We cannot support such or such a clause and if the weight of the majority still goes against our knowledge and principles we will produce a minority report.”
The third is the system we have adopted in preparing for legislation. In the Westminster model, governments intending to introduce important pieces of legislation would issue a Green Paper, which is a statement by the government on a particular topic setting out propositions to the nation for discussion. My information is that that used to be done here but we have thrown away the baby with the bath water and by the time a Bill is presented it is the party’s Bill and the party line must be followed. That hardly results in good policy or legislation.
The fourth problem appeared ironic in the context of the ATI Bill. One of the principles recommended by the International NGO Article 19, is that meetings of governing bodies – which should obviously include the National Assembly and its committees – must be open to the public. When I pointed this principle out on Friday, Ms Gail Teixeira, acting Chairperson of the Select Committee, with a straight face sought to inform me that the National Assembly recently voted to keep such meetings private. Perhaps the irony of her statement and the occasion escaped the country’s governance czar.
The fifth and final one is that we still have legislation that is premised on the fundamental assumption that “we” will always be in power. The PPP/C it seems has not learnt from the PNCR’s lesson that your own rod whips you hardest. The constitution that they passed when they enjoyed the fruits of power is now their biggest obstacle to preventing the excesses of their successor. The time may come when the PPP/C in opposition may need information. Then they will know how flawed, lopsided and undemocratic the present draft of the Access to Information Bill really is.
Telecommunications Bill
This Bill has as much importance to foreign investment, technology and development as the Access to Information Bill has to freedom of speech, democracy and governance. But with the opposition parties no longer taking part in any parliamentary activities the government is once again likely to push this Bill through the National Assembly. Whatever may be the government’s intention in bringing the Bill at this late stage, it must also be counting on receiving much public support; one of the Bill’s effects is the end of the monopoly which GT&T has enjoyed for twenty years under an agreement its parent company entered into with the Hoyte administration.
The Bill is a huge piece of legislation extending to ninety-five clauses. Yet perhaps the most important effect is included or addressed only by implication and that is GT&T’s monopoly over key segments of the telecommunications sector.
This monopoly goes back to 1991 when it was granted to ATN as an inducement to have them buy an 80% stake in the then Guyana Telecommunications Corporation. Monopolies are of course “utterly void” under our Civil Law Act, which is second only to the country’s constitution in terms of legal significance. (That Act saw the country breaking away from Roman-Dutch law and adopting, with a few exceptions, the civil law of England.) Yet, the matter is not so simple and GT&T will naturally seek to protect what they consider their rights.
The Explanatory Memorandum to the Bill states that it “provides for an open, liberalised and competitive telecommunication sector that will be attractive to new market entrants and investors, while preserving the activities of the current sector participants.” I doubt whether GT&T is likely to share that view not only because it impliedly loses its monopoly, but also because it gives favoured treatment to some of the President’s friends..
The Explanatory Memorandum goes on to state that it seeks to “creat[e] a competitive environment for telecommunications [which] is expected to result in greater choice, better quality of service and lower prices for consumers. To further national and regional social and economic development, the Bill also specifically addresses the expansion of telecommunications networks and services into unserved and underserved areas through the institution of a new universal access/universal services programme.”
It also states that along with consequential amendments to the Public Utilities Commission Act 1999 which has also been introduced in the National Assembly and regulations expected to be published once the Bill is assented to, the country will have a clear, harmonized framework and a level playing field for the sector that is lacking in the current laws.” It expects that these would bring us in line with “other countries in the world, including most Caribbean countries”.
The authors are confident that the legal framework inherent in the Bill will provide for transparency and non-discrimination in the issuance and monitoring of licences and authorisations to use the spectrum; seamless interconnection and access between and among telecommunications networks and services; and price regulation where required to ensure competition and protect consumers.
Next week I will examine the extent to which these objectives are reflected in the Bill and consider the implications – legal and otherwise – of the state’s attempt to remove unilaterally the right of the company to have its exclusive licence extended.