The Passing of the Anti-Corruption Law, and Planned Changes in Telecommunications – Sunday, 14.3.2010

Posted on 15 March 2010. Filed under: *Editorial*, Week 655 | Tags: , , , , , , , , , , , , , , , , , , , , , |

The Mirror, Vol. 14, No. 655

As regular readers of The Mirror know, we often quote the Constitution of the Kingdom of Cambodia to have a clear basis when trying to better understand certain actions and events. Today’s editorial is written hoping for discussions and explanations, and, if necessary, clarifications and corrections. Recently, there were actions and statements, which seem to call for explanations and clarifications, so that a common public understanding can be achieved. One issue is related to the Anti-Corruption Law, and the other to regulatory plans or decisions in the field of telecommunications.

As for the Anti-Corruption Law, this is not an attempt to analyze its content. It is only to share some observations, some of which seem to have implications related to the Constitution of the Kingdom of Cambodia.

The first observation is related to formalities, as this is the Cambodian law which has been drafted for the longest time compared to other laws – since 1994, and with active support for this process by the United Nations since 2004. Then, in December 2009, the spokesperson of the Council of Ministers announced that the draft is now ready, but he disclosed only one point: that also the heads of NGOs would have to declare their assets, adding that the text would be available for consideration as soon as it would be at the National Assembly. This too took a surprisingly long time; because of timing problems, the parliamentarians of the Human Rights Party declared not to take part in the parliamentary deliberations of this draft, as they did not have enough time to review this important text, which was actually distributed only on 5 March 2010, while a session of the National Assembly was scheduled to be held already on 10 March 2010. And then the draft, under deliberation since 1994, was adopted very fast, without any amendments, in just one and a half days.

An Anti-Corruption Law had been awaited eagerly since years, as Cambodia was ranked 158 out of 180 countries on the latest list of the corruption perception index of Transparency International, and it was ranked the second most corrupt Southeast Asian country after Indonesia, in an annual poll by the Political and Economic Risk Consultancy.

The UN country team in Cambodia, made up of 23 specialized agencies, had expressed its concern that an extra-ordinary session was convened only days after the draft had been shared with the members of the National Assembly. But the Cambodian government considered the call by the UN country team for “a transparent and participatory” process to be “flagrantly interfering in the internal affairs of a UN member state,” and to be a statement outside of its mandate, though “good governance and the promotion and protection of human rights” is one of the four fields of the agreed UN Development Assistance Framework, on which the work of the UN country team is based.

But not only the timing gives cause to questions. The UN country team was also advised by the Cambodian government to “refrain from acting as if it were the spokesperson of the opposition parties.” We are not aware that this had been the case, but the press had also quoted the Prime Minister as saying, “if somebody wants this law to be amended, they have to wait until they win the elections.” We cannot verify that the Prime Minister said so, but these words seem to indicate that the constitutional principle, stated in Article 51, “The legislative, executive, and judicial powers shall be separate” is not considered to be applicable. In normal parliamentary proceedings under the separation of the three powers of the legislative, the executive, and the judicial, no executive can know – before the deliberations in the legislative – if a draft will be amended or not. This is not only something which may happen because of efforts of opposition party members, but also any active member of the parliamentary majority may scrutinize drafts and propose amendments, before voting on a draft.

Besides, the Senate, and the Constitutional Council, are additional important stages to consider legislation passed by the National Assembly – irrespective of party allegiances of their members – which may result in amendments, before a law is presented to the King. Such considerations may not only come from opposition parties, but they are foreseen as possible in the Constitution itself. The Senate and the Constitutional Council were not created just to rubber-stamp what the National Assembly has decided.

There is a second issue, which seems to be of a more technical nature – but it has fundamental implications for the free flow of information, and for the basic principles for the management of the economy of the country, as laid out in the Constitution of the Kingdom of Cambodia.

The Articles 56 and 63 of the Constitution say: “The Kingdom of Cambodia shall adopt the market economy system” and “The State shall respect market management in order to guarantee a better standard of living for the people.”

Two weeks ago, under the 28.2.2010, The Mirror had presented, in more detail, considerations under the headline of “Internet Governance, Censorship, and the UN Multi-Stakeholder Approach” about plans to force all Internet communication between e-mail users of different Internet Service Providers in the country through only one Internet Exchange Point [IXP]. A deputy director of Telecom Cambodia – the organization to operate the IXP – had said that a Web site that attacks the government could then be blocked. As the Minister of Information said: there is no legal basis for this.

In the meantime additional information appeared and is discussed: Telecom Cambodia might get the right to operate a monopoly by becoming the only company in Cambodia with the right to internationally buy Internet connection, and all other Internet Service Providers would have to buy their international access from Telecom Cambodia, one of their competitors. Such interference into economic affairs is difficult to understand in view of the legal framework defined in the Constitution, where the state is ordered – rather than to interfere into the marked – to guarantee that the market can operate freely “in order to guarantee a better standard of living for the people” according to the forces of competition in the market.

It should be remembered that Telecom Cambodia was created in order to disengage the regulatory and the operational functions which formerly had been both combined in the Ministry of Post and Telecommunications.

The second term government of the Kingdom of Cambodia, starting from 1998, had adopted as its key orientation a “three pronged strategy” – the second prong was the re-integration of Cambodia into the international community – the UN, ASEAN, and the World Trade Organization. The other two elements were “establishing peace and security,” and “promoting administrative and judicial reforms.”

In a speech of the Prime Minister to welcome the Third Asian-German Editor’s Forum on 31 January 2000, he referred to this principle, “I think it is best to give everyone of you the role as an evaluator for your judgment to be made on the current situation of Cambodia. What I can share in this efforts is the three pronged strategy which I have put out… Essentially, one needs to have a clear and correct vision before one can develop Cambodia as a process.” This orientation led also to extensive consultations with advisors of the World Bank about the situation of the telecommunication sector in the country, which the Prime Minister had identified on several occasions as a crucial field for the future of Cambodia, in a situation, where the costs of using the telephone and the Internet was – and still is – high in Cambodia, compared to neighboring countries.

The International Telecommunication Union [ITU] is about 100 years older than the United Nations, but it is now part of the UN system. In the ITU’s World Telecommunication Development Report of 1998 it is stated that previously, investment in the “telecommunication services sector have been limited by the fact that most countries had state-owned monopoly carriers. This era is now coming to an end. Since 1984, 44 Public Telecommunication Operators have been privatized… telecommunications has a dual role as both a traded product and service, and as a facilitator of trade in other products and services… What are the benefits of trade liberalization? Freer trade in telecommunications promises to deliver at least three economic gains: new and improved products and services, lower prices, and additional investment. Open trade in telecommunication services should result in more competition, lowering prices for most businesses and for many consumers and providing both with a choice of different service providers.”

The World Bank advice, at that time, for Cambodia, showed the direction. The following direct quotes are from the final report and presentation of its “Public-Private Infrastructure Advisory Facility.”

  • World Bank project to strengthening the Cambodian Telecommunications regulatory framework with rules for fair competition – interconnection regime
  • Aims at cost effective communications – Doing nothing in not an option, the Ministry of Post and Telecommunication – MPTC – as it is cannot long survive
  • Mobile vs. Fixed Phones: THE BIG DIFFERENCE:
    • fixed: state sector, no money, no autonomy, slow progress
    • mobile: private money, growing fast, light handed regulation
    • competition in mobiles has produced, good services
    • state management has produced poor service, stagnation and lost opportunities
  • Principal Institutional Problem:
  • MPTC is an integrated, policy, regulatory, operational and asset management agency
  • Expert advice is unanimous that this leads to
    • conflicts of interest
    • poor asset management
    • business decisions suffer from political intervention
    • political priorities suffer from a preoccupation with business issues
  • All Advisers Recommend
  • MPTC should have its current functions located in separate agencies:
    • policy – the correct function for MPTC is regulation, an independent function
    • business operations – Telecom Cambodia a commercial entity with operational autonomy, eventually private

The present intentions, to re-establish, a monopolistic role for Telecom Cambodia, would revert what has been achieved under the Prime Minister’s guidance, related to the second of his three-pronged objectives: to place the policies of the Cambodian government, after decades of international isolation, into the present international context. Telecom Cambodia was created as an operator under the rules of the market, to have competition among other operators, and to establish the Ministry of Post and Telecommunications as a technical regulator. To give a mandatory monopolistic role to Telecom Cambodia is contrary to the efforts of a decade, and is contrary to the Constitution of the Kingdom of Cambodia.

I have observed these developments during the last two weeks form abroad, participating in the meetings of the Internet Corporation of Assigned Names and Numbers – ICANN – the institution coordinating the assigning and the functioning of the Internet addresses, which was held in the Kenyan capital Nairobi.

In a reception by the Communications Commission of Kenya – the main telecommunications regulator of the country – we received the following bag to carry our documents. It is inscribed with the words which show that the monopolies have been abolished in the telecommunication sector, and the results ensure fairness for all – and much lower costs than in Cambodia:

Fairness

Fairness


Ensuring fair play

Kenyan Broadband Pricing

Kenyan Broadband Pricing

.

The public is invited to sign up for Internet connections in this developing country in East Africa at a fair, low price:

1499 Kenyan Shilling per month, that is US$20 for unlimited broadband Internet access at a speed of 256 Kilobit per Second – how long will this remain a distant dream in Cambodia?

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The Ministry of Economy and the Ministry of Post and Telecommunications Are Seeking Solutions in the Mobile Phone Business Conflict – Friday, 16.10.2009

Posted on 18 October 2009. Filed under: Week 634 | Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , |

The Mirror, Vol. 13, No. 634

“Mobile phone businesses in Cambodia, working under unclear regulations, seem to encounter unexpectedly a stormy and disorderly time. For the morning of 16 October 2009, the Minister of Post and Telecommunications plans to organize a special meeting with representatives of mobile phone companies to intervene in the existing conflict, but it is expected that proper results cannot be found from just one coordination meeting.

“Mobile phone service providers said that the circular of the Ministry of Economy and Finance, administered by Minister Keat Chhon, from 29 September 2009, says to require all mobile phone companies to pay taxes for all types of calls by their clients [calls-in and calls-out]. But it is said that tax officials do not join now to work on taxes, which must always be settled at the end of every year.

“Mobile phone service providers note that the circular of Mr. Keat Chhon seems to bring a new restriction for mobile phone companies, as calls within the same system, which at some companies cost zero cents, will have to change soon. The free calls within the Beeline and the Smart Mobile systems will no longer be allowed to continue, while the Ministry of Economy starts to collect taxes from these call by their clients.

“It is noted that the initiative for a clear set of taxes on call led to this intervention, requiring all mobile phone companies to limit all call to be cost charged, in order to eliminate dishonest competition at the market, for which the Beeline company had been accused by the Mobitel company.

“The Ministry of Economy and Finance and the Ministry of Post and Telecommunications agreed to issue a license for a data management center to control the data of telecommunication and of information technology services, based on Decree 135, dated 15 September 2008. Through the plan to create a center to control data of telecommunication and information technology services, the government, represented by the Ministry of Post and Telecommunication, will cooperate with the private data management center as stated in the cooperation deal.

“This center for the control of data of telecommunication and of information technology services will be responsible for:

  1. Directly control all data of telecommunication and information technology services, and update them, based on the advance of technology in this sector;
  2. Control and monitor all activities of the center;
  3. Regularly report about the traffic and the figures of income, in order to facilitate the calculation of taxes, and the distribution of income between the state. and the telecommunication and information technology service providers and operators, who are partners;
  4. Provide accurate data for income forecasts, to analyze the economic potential, and for development projects in telecommunication and information technology.
  5. Broaden and control the inter-network connections, in order to ensure calls between different system to work smoothly to avoid traffic congestion between all operating networks;
  6. Support small operators to operate through the opening of special networks outside of the system;
  7. Disconnect illegal traffic exchanges, following the authorities’ orders and the telecommunication regulations;
  8. Regularly review the system at set times for all operating networks.

“Some mobile phone operators are not satisfied with this, because probably the Ministry of Post and Telecommunication lacks the capital and the technicians, and therefore will cooperate with private companies to control telecommunication and information technology services, leading to conflicts of interest among mobile phone companies. Actually, the state already has the a structure within Post and Telecommunications that can control telecommunication data, and it is not necessary to cooperate with a private data management center, a private company.

“Also the circular that restricts certain system call of the clients, according to mobile phone service providers, will create work for the private data management center and encourage this company to begin collecting call taxes. This might ease the tax collection of the Ministry of Economy, but it leads to conflicts of interest, as the state does not have the ability to work on this by itself, but offers this opportunity to a private company to easily take benefits.

“[The Minister for Post and Telecommunications] Mr. So Khun had tried to intervene to solve the conflicts between mobile phone companies which are competing with each other dishonestly, including the fact that some stopped to connect inter-system traffic, but it seemed to create problems between mobile phone businesspeople in Cambodia. These might be the result of uncertain laws and regulations for the operation of mobile phone businesses in Cambodia.

“There is one proper solution to end the conflicts among mobile phone operators, that is the suggestion to the government, especially to Prime Ministry Hun Sen, to cancel the license for a data management cente with full rights to control the telecommunication and the information technology data in Cambodia, and to encourage the state to administer this itself, because by doing so, at least some of the profits do not fall into the hands of a private company.” Khmer Amatak, Vol.10, #661, 16.10.2009

Newspapers Appearing on the Newsstand:
Friday, 16 October 2009

Deum Ampil, Vol.3, #312, 16.10.2009

  • Gold Sellers and Currency Exchangers Were Robed Again, Taking Away More Than US$50,000 [Phnom Penh]
  • Cotton Will Have Markets Again after There Is Investment for Export to International Markets
  • There Are Positive Signs of Recovering at Micro-Finance Institutions [Sthapana Limited, Amarith, and Prasak micro-credit-institutions claim that they are again giving out more loans]
  • Cambodia Asked for Financial Support from the United Arab Emirates to Develop Some Projects [in infrastructure and agriculture – no information stated if these were requests for loans or for grants]

Kampuchea Thmey, Vol.8, #2073, 16.10.2009

  • Cambodia Might Not Bring the Border Dispute to the ASEAN Summit [after the Thai Minister of Foreign Affairs sent an official response, to deny the intention to create a neutral unit in ASEAN to solve border disputes, to the Ministry of Foreign Affairs and International Cooperation of Cambodia – according to the spokesperson of the Ministry of Foreign Affairs, Mr. Koy Kuong]
  • Three Chinese Men Were Arrested for Questioning after Assaulting and Injuring Two Police Seriously [Kampot]

Khmer Amatak, Vol.10, #661, 16.10.2009

  • The Ministry of Economy and the Ministry of Post and Telecommunications Are Seeking Solutions in the Mobile Phone Business Conflict
  • Russia Will Intensify Cultural Ties with Cambodia to Open a New Historical Page [by showing Russian films about the victory of Russia in World War II, from 20 to 24 October 2009, at the Russian Center of Science and Culture along the Norodom Boulevard in Phnom Penh; and Cambodia and Russia will cooperate in film production in 2010]

Khmer Machas Srok, Vol.3, #510, 16.10.2009

  • Within the Last Four Months More Than 400 Trucks Loaded Wood from Ratanakiri to Carry to Yuon [Vietnam – according to a Ratanakiri official who reported it anonymously]

Koh Santepheap, Vol.42, #6780, 16.10.2009

  • Houses [of 28 families] Constructed on a Pedestrian Area at the Roundabout of the Chroy Chongva Bridge Were Removed [and destroyed, to widen the road – Phnom Penh]
  • [The head of the Directorate of Cinema and Cultural Diffusion of the Ministry of Culture and Fine Arts] Mr. Sin Chanchhaya [son of the well-known signer Sin Sisamut]: The Reason Why Khmer Films Cannot Progress, Is that Film Productions Are Made by Non-Professional People
  • Because of Losing Riel 60,000 [approx. US$15], a Cruel Man Got Angry with His Wife and Hit Her to Death [he was arrested – Kratie]

Rasmei Kampuchea, Vol.17, #5022, 16.10.2009

  • [Sam Rainsy Party Parliamentarian] Mu Sochua Decided to End the [defamation] Case against the Prime Minister [saying that she will not appeal to the Supreme Court]
  • Queensland Police [of Australia] Donates [five] Speed Checking Devices and [thirty] Alcohol Checking Devices to the Cambodian Police

Sereypheap Thmey, Vol.17, #1809, 16-18.10.2009

  • The Opposition Parties and a Civil Society Organization [the Cambodian Human Rights and Development Association – ADHOC] Said that if a New Demonstration Law [limiting the number of people to less than 200 to assemble at a public place with permission from the authorities, to be applied for at least 12 hours before] Is Not Corrected, It Would Be Just a Tool to Cheat about the Implementation of Democracy in Cambodia

Have a look at the last editorial – you can access it directly from the main page of the Mirror.
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