Lack of Government Transparency Regarding Draft Regulations on Network and Frequency Sharing Raises Questions

Indonesian Version

 

 Ricky Pratomo, Nando Narenda Putra

 

 
The government, via the Ministry of Telecommunications and Information Technology (Ministry), is currently deliberating draft amendments to Government Regulation No. 52 of 2000 on Telecommunications Provisions and Government Regulation No. 53 of 2000 on the Management of the Radio-Frequency Spectrum and Satellite Orbits. These deliberations are ongoing, in spite of strong criticisms which have been aired regarding the various provisions set out in the amendments, as well as the government’s reluctance to seek any public participation and input into the discussions.
 
Speaking on behalf of the Ministry and as a member of the Indonesian Telecommunications Regulatory Authority (BRTI), I Ketut Prihadi admitted that the deliberation process into the draft regulations were not transparent. Prihadi went on to state that he did not understand the reason behind such secrecy. “As far as I am aware, the two drafts in question are now in the hands of the Coordinating Ministry for Economy Affairs,” he explained.
 
Danny Buldansyah, Secretary General of the Indonesian Telecommunication Providers Association (ATSI), also confirmed the lack of government transparency regarding the current draft-regulation deliberation process. Mr. Buldansyah also acknowledged that he had yet to receive any drafts of the regulations in question and, as a consequence, had little understanding of them.
 
According to Law No. 12 of 2011 on the Establishment of Laws and Regulations (12/2011 Law), the government is obliged to ensure that the general public has access to all relevant information relating to draft regulations. Furthermore, Article 96 (1) of the 12/2011 Law ensures the right of any members of the general public who are concerned about any draft regulations to offer input into the drafting process. Such access and input may take the form of Public Opinion and Input Hearings (RDPU), work visits, information-dissemination sessions, and also seminars and workshops.
 
Reflecting on these issues, current Indonesian Ombudsman Commissioner, Ahmad Alamsyah Saragih, noted that the Ministry had yet to hold any public consultations regarding the draft regulations, even though such consultations are mandatory if the President is ultimately going to sign off on the drafts in question. “In the absence of any public consultations, then the Ombudsman is fully within his or her rights to classify any such procedures [relating to the deliberation process] as defective,” Mr. Saragih emphasized at a discussion forum which was held in Jakarta on Wednesday 5 October 2016.
 
Problematic Draft Provisions
 
Addressing the contents of the draft regulations, Hanafi Rais, Vice Chair of House of Representatives (House) Commission I, stated that the two drafts clearly contradict the various provisions which are set out in Law No. 36 of 1999 on Telecommunications (Telecommunication Law). Mr. Rais went on to explain that the draft regulations allow for the transfer of frequencies based on decisions made by the Ministry, but that this provision violates Indonesia's Telecommunications Law, which states quite clearly that authority over the control of frequencies lies solely with the State, and that frequencies cannot therefore be transferred between users.
 
Rais then went on to pledge that House Commission I would convene a special meeting in order to discuss the draft regulations. Rais also stated his expectation that Rudiantara would attend any such meeting on behalf of the Ministry and would present detailed clarifications of the regulations in question. “[Additionally], in order to avoid any contradictions with the Telecommunications Law, the House should consider establishing a working committee,” Rais added.
 
Maragarito Kamis, an expert in constitutional law has also weighed into the debate surrounding the drafts and has stated his belief that the regulations in question are ultimately unconstitutional. Kamis explained that, hierarchy wise, all government regulations should further regulate the provisions stipulated in higher regulations, which in this case is the law. Thus, in order to avoid any departure from this hierarchy, the contents of any law should be made as general as possible. “New drafts should be able to overcome any loopholes and problems,” Kamis advised.
 
According to Hukumonline records, at least two articles in each draft regulation have come in for criticism.  Firstly, Article 12 of the Draft Amendment to Government Regulation No. 52 of 2000, which regulates the various obligations of telecommunications operators in Indonesia as regards network sharing, has been criticized. Network sharing should involve the joint management of certain network elements which are divided into two types, specifically passive networks (e.g. towers, network shelters and power supplies) and active networks (e.g. Radio Access Networks or RANs, network switching/cores and antennas). Secondly, Article 25 of the Draft Amendment to Government Regulation No. 53 of 2000 regulates the issuance of permits for the transfer of frequencies or spectrums managed by telecommunications operators, however frequencies are ultimately owned by state and are thus considered non-tradable and non-transferrable.
 
(rfs/sp)