PORT VILA – Vanuatu Supreme Court has upheld the independence of the telecommunications regulator.
Justice Oliver Saksak ruled Monday that the Prime Minister and the Government Chief Information Officer be restrained from any attempt to “direct, control or pressure her as to how to perform her duties, functions, powers and responsibilities as Regulator”.
The judgment stated that Prime Minister Charlot Salwai’s attempt to summarily suspend the Telecommunications and Radiocommunications Regulator was unlawful.
He further quashed the PM’s second attempt at suspending the TRR after a notice period. His appointment of Utilities Regulatory Authority CEO Hasso Bhatia as interim Regulator was quashed as well.
The court filings appear to show a sustained, if slipshod, effort to exert influence over Baniala on a number of issues, the most significant of which related to a series of decisions enforcing price and quantities for bandwidth purchased by local telcos and ISPs from Interchange Ltd.
Interchange operates Vanuatu’s only international fibre optic cable. It was determined by the Regulator to be in a ‘dominant’ position in the local bandwidth market as a result of its de facto monopoly on high-speed, high-capacity bandwidth services.
In October last year, the Daily Post reported that the Prime Minister had written a letter to Baniala informing her that she “had been suspended on half-pay for a period of 28 days, pending an investigation into her professional conduct”.
It listed nine reasons for this, and alleged that together, they constituted a breach of Baniala’s employment contract. It accused Baniala of mismanaging her role such that the telecommunications sector was ‘paralysed, handicapped and stagnant’.
The 2017 sectoral report, prepared by the Regulator, claims that between 2014 and 2016, mobile data downloads rose from 16.2 million to nearly 273 million megabytes. Gross revenues in the telecoms sector rose by about 15 per cent in the same time period, according to the report.
Soon after the first suspension letter was issued, the State Law Office determined that an immediate suspension was contrary to the TRR Act, which defines the roles and responsibilities of the telecoms regulator, as well as outlining the selection and removal process.
A week later, another letter was sent to the TRR, restating the Prime Minister’s concerns, and putting her on 28 days’ notice. At the time, the Daily Post reported that “Industry figures, who declined to be quoted because of the dynamic of their professional relationship with the Regulator, said the suspension took them by surprise.”
Court filings reveal a formal complaint received from Interchange by Minister of Infrastructure and Public Utilities Jotham Napat. It outlined a series of concerns relating to changes in the market allegedly resulting from decisions made by the regulator. A bandwidth wholesaler, FCC, informed Interchange of its decision not to purchase any more bandwidth blocks to be on-sold to local ISPs, attributing its decision to pricing orders issued by Baniala.
Prior to this, FCC was the only source of leased cable bandwidth, although no one was prevented from competing with them for these large bandwidth blocks.
Napat forwarded the letter in an email to the Prime Minister, urging him to ‘intervene’ in the matter, citing shareholder interest.
The Government of Vanuatu has a 12.5 per cent share in Interchange.
Shortly after that, the suspension letter was issued.
But the pressure allegedly didn’t stop there. Court filings reveal that Baniala claims to have received communications from Gerard Metsan, offering a settlement in the issue, providing that she reverse an order concerning Interchange bandwidth prices. Baniala responded to him, stating that she was prevented by the TRR Act from reversing any order currently under judicial review.
Baniala further alleged that Metsan and a member of the TRR’s legal staff were engaged in improper contact, and submitted evidence alleging that the legal officer disclosed confidential information to Metsan near to or during the time of the attempt to suspend the regulator.
Following the legal staff member’s termination by the TRR,Metsan reportedly informed the regulator that this person would be working for OGCIO to assist with conducting her professional review.
Contacted for comment, Metsan stated that his understanding of the affair was that he was conducting official correspondence with TRR’s legal staff pursuant to the PM’s instructions. “If Margaret breached confidentiality, that’s a matter between her and the Regulator,” he told the Daily Post by telephone from Noumea.
He insisted that the decision to suspend had nothing to do with his office, and that the Government Chief Information Officer’s actions were all pursuant to instructions received from PMO.
Metsan rejected allegations of pressure, stating that he was simply making a good faith effort to find a way out for the Regulator, without having to resort to the courts.
The court filings show communications from Interchange staff also requesting that she reverse the pricing order.
The TRR has since made efforts to resolve these and related disputes. Interchange CEO Simon Fletcher reported that his relationship with the regulator was much improved of late, and he indicated that a settlement in another related issue was very close to completion.
The Daily Post submitted a request for comment to the Prime Minister’s Office, but had yet to receive a response.
In his judgment, Justice Saksak suggested that some of the conduct in this matter “may possibly be in violation of the Leadership Code Act but this is a matter for the ombudsman….”
In response to the ruling, Regulator Dalsie Baniala wrote to the Daily Post defending the legal battle, and insisted that the “decision to go that far was mainly to protect the institution’s credibility”.
She cited her office’s contribution to “positive development” and concluded by reiterating “the need to make sure TRR remained the trusted institution to all its key stakeholders both at the national and international level.”
