Losing contact

I have seen the White Paper on the proposed amendments to the Telecommunications (Regulation) Act and Malta Communications Authority Act.

I thank the minister responsible for telecommunications for giving me the opportunity as a citizen to comment and would like to register the following remarks on the material presented therein:

1. Numbers
I do not understand the premise that numbers are a scarce national resource; next someone will claim that sexual activity is a scarce national resource and will try to control it.

To claim that numbers are scarce is farcical when one considers that it is commonly acknowledged that there are an infinity of them. Infinity can be defined as "unlimited extent of time, space, or quantity; eternity; boundlessness; immensity". Take the largest number you are capable of thinking of, add one to it and voila - there is no limit.

The telecommunications numbering system presently used in Malta consists of eight digits, thereby giving us a total of 100 million possible combinations. Surely this is enough to cover a population of slightly under 400,000, counting every man, woman and child. Even if the first two digits are assigned to identify a service provider, giving us the possibility of 100 service providers, (when, in fact, we have three at the moment), that gives each of the service providers a million numbers to play with.

Adding a ninth digit to the local numbering plan will increase the available numbers by a factor of 10. Nine digits, grouped in sets of three, are still quite memorable. In the United Kingdom, residential numbers assume a 10 digit format.

So if numbers are not a scarce resource, what is behind the claim in the proposed legislation? Is the agenda the imposition of a financial levy on the use of numbers by operators? Is the government intending to sell its remaining shares in Maltacom through the process of privatisation but maintain its income through licensing fees? Will this not make the provision of telecommunications services more expensive?

2. Frequencies
In the new Telecommunications (Regulation) Act, no exclusive or special rights of use of radio frequencies shall be granted for the provision of electronic communications services.

Does this mean that the frequencies allocated to Go Mobile and to Vodafone may be used by others?

3. Interconnection
An operator shall be obliged to afford interconnection to other operators to ensure interoperability throughout the Community. This will empower Vodafone to deny interconnection to Go Mobile to countries outside the European Union and constitutes unfair competition.

4. Administrative fines
The proposed MCA Act gives the authority the power to impose a fine of up to Lm100,000. In some cases the penalty can go up to five per cent of the turnover of the victim. In the case of Maltacom, this would be in excess of Lm2.5 million. I doubt if the lawcourts have the power to inflict such a penalty.

Article 32 (1) "saves" a person committing a criminal offence from prosecution for that criminal offence if he has been fined under this act. This is better than the mahfra or proklama as no conditions apply. It may even be a most novel way of tampering with the jury system.

Article 32 (5) attempts to frustrate the court's right to issue a prohibitory injunction against the authority. The authority is almighty.

Article 33 states that the imposition of a fine shall constitute an executive title.

Article 34 makes the directors, managers, secretaries or other officers of a body corporate personally liable to punishment by the authority. The fines envisaged by the proposed legislation would ruin the most powerful corporate body. Individuals who possess the sort of money contemplated in the fines would be unlikely to spend their time messing about as an officer etc of a body corporate regulated by the authority.

Any normal person carrying out one of these functions would be pauperised by such fines and would live in constant fear of being subjected to this punishment, whether guilty of anything or not.

Ludicrously, article 45 of the same Act exonerates a priori members, officers and employees of the authority from any liability for loss or damages suffered by any person as a result of their actions or non actions.

The whole matter of the proposed administrative fines is indicative of the ranting of someone crazed for power who has a pathological need to be obeyed at all costs.

I maintain that the sections in the proposed laws empowering the Malta Communications Authority to impose administrative fines are unconstitutional. Specifically, they go against the provisions of article 37 of the Constitution of Malta in that they seek to empower the authority to take possession of property belonging to others without due process, whether civil process or after conviction of a criminal offence.

The methods of defence against an administrative fine imposed by the authority are ineffectual, seeking to limit the alleged offender's right of appeal to a real independent court only to matters of law; this can only be interpreted as a sop to Cerberus (and a weak one at that) and cannot remove the protection against deprivation of property guaranteed by the Constitution. One cannot remove the protection afforded to citizens of Malta, whether private or corporate, by the simple expedient of passing unconstitutional laws.

I believe in democracy, in the rule of law and in the courts of justice. To give powers to an authority to decide to impose a fine and to take property without due process in a court of law is legalised spoliation and is the thin edge of the wedge leading to the introduction of dictatorship.

Mr Zarb Adami is a former chairman of Maltacom. The above are extensive highlights from remarks he sent to the permanent secretary at the Ministry for Transport and Communications.