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Regulators’ independence

Not all regulators in Malta are on the same footing in so far as their degree of independence from the Government is concerned. Some are more independent than others. For instance, there is no comparison between the constitutionally established Broadcasting Authority and the ordinary law-established Malta Communications Authority or Mineral Resources Authority.

Some are more independent than others

Independence from governmental control thus varies from one regulator to another. I am putting forward a hierarchy of independence of regulators, divided as follows: totally independent regulators; independent regulators; quasi-independent regulators; and government dependent regulators.

Totally independent regulators: I am not aware of any regulator in Malta that is totally independent, as all regulators are to a certain extent limited in their independence in so far as they depend on Parliament for their revenue, on Government for the taking of certain decisions in their respect and on the courts who hear appeals from, or judicially review, their decisions.

Independent regulators: This category fits perfectly well in the case of the Broadcasting Authority which has the final say in so far as decisions concerning constitutional broadcasting matters are concerned. The Constitution quite emphatically provides in article 118(8) that “In the exercise of its functions under article 119(1) of this Constitution the Broadcasting Authority shall not be subject to the direction or control of any other person or authority.”

Neither Parliament nor Cabinet may legislate or give directions to the authority in so far as its constitutional functions are concerned but may do so in so far as its legal functions under the Broadcasting Act (or any other ordinary law for that matter) are concerned. So in its prime function – the constitutional function – the BA enjoys full independence from the legislature and the Executive. The authority’s decision may, nonetheless, be challenged before a court of law. This is because article 124 (10) of the Constitution expressly provides that: “No provision of this Constitution that any person or authority shall not be subject to the direction or control of any other person or authority in exercising any functions under this constitution shall be construed as precluding a court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or any other law.” Therefore, it is only the judicial organ and not the two other organs of the state which can review the BA’s workings but such review is not absolute: it is limited only to ascertaining whether or not the authority has acted within its powers, that is, intra vires its powers.

Quasi-independent regulators: Those regulators which enjoy an element of independence from the Legislature and the Executive in their decision making but which have to refer certain matters to these organs of the State for decision are considered to be quasi-independent regulators because they have certain decision-making powers which are not subject to review by the Legislature and the Executive but by the courts and yet at other instances these powers have been divested from them and assigned to Parliament and Cabinet. A case in point would be the Malta Environment and Planning Authority.

Regulators with a low level of independence: These have some independent decision making powers but most of their decisions have to be endorsed by the Government or by Parliament. Such is the case of the Malta Communications Authority and the Mineral Resources Authority. In both cases the sword of Damocles hangs over each authority’s head in terms of article 6 of the enactment establishing such authorities.

In so far as the Mineral Resources Authority is concerned, article 6 of the law establishing it reads as follows: “The minister may, in relation to matters that appear to him to affect the public interest, from time to time give to the authority directions in writing of a general character, not inconsistent with the provisions of this Act, on the policy to be followed in the carrying out of the functions vested in the Authority by or under this Act, and the Authority shall, as soon as may be, give effect to all such directions.” It further provides that: “If the authority fails to comply with any directions issued under this article, the Prime Minister may make an order transferring to the minister in whole or in part any of the functions of the authority.”

Article 6 of the Malta Communications Authority Act is very similar to the above provision.

Government-dependent regulators: These regulators enjoy no independence from Government. A typical example would be a government department exercising regulatory functions such as the Commissioner for Inland Revenue. In this case, article 6(c) of the Interpretation Act applies to the Head of Department and the competent minister may, in writing, give directions to the head to decide such applications.

From the Council of Europe Recommendation, Rec (2000) 23, of the Committee of Ministers to Member States on the Independence and Functions of Regulatory Authorities for the Broadcasting Sector, the independence of the broadcasting regulator does not restrict itself to the actual decision making when the regulator is considering complaints by viewers and listeners or charges issued by the chief executive: independence goes beyond that.

It also requires the authority to enjoy institutional independence (in so far as the appointment, composition, dismissal and functioning of the authority are concerned), financial independence, regulatory independence (in terms of regulatory powers, granting of licences and monitoring broadcasters’ programme output) and operational independence.

An analysis of this fivefold taxonomy of independence demonstrates that the broadcasting regulator does not satisfy all the above tests of independence. Furthermore, the broadcasting regulator has certain of its functions exercised by Government.

It also exercises both a regulatory and service provider function, has the power to censor programmes, tends to over-regulate the broadcasting industry, has to fight for its regulatory territory from invasion by other regulators and, overall, has to embroil itself in a power struggle with Government’s attempts at excluding the broadcasting regulator from the very reason of its existence: regulation of the broadcasting media.

Seen in this perspective, the Broadcasting Authority’s independence leaves much to be desired. Whether this will change still has to be seen.

Kevin Aquilina is dean of the Faculty of Laws at the University of Malta.

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