Monday, 22 September 2008 12:19 PM

DIGICEL and Basic Rights, TELEKOM and what Rights?

On 12 September (2008) DIGICEL was bestowed with the 'Organisational Human Rights Defender of the Year award for Papua New Guinea.' The interesting connection was that according to Archbishop of Port Moresby Sir Brian Barnes, "Digicel has provided affordable mobile communications across PNG, and sees this service as a basic right, improving the lives for the less well-off in this country [PNG].''

It's a case for what is internationally referred to as a 'right based approach to development. This seeks to integrate the norms and principles of human rights with policies and plans to promote development. Its basically a right that is composite in nature, and that which integrates civil and political rights with economic, social and cultural rights. These are human rights captured in the Covenant of Civil and Political Rights (1966), Covenant on Economic, Social and Cultural Rights (1966) and the Declaration on the Right to Development (1986). They have become 'soft law': not legally binding on states but generally accepted.

Is DIGICEL contributing to the realisation of a 'basic right'? I think so. It's a new entry to what is less known in our country as 'third generational rights'. Some of the other notable entries are: right to development, and environment, to name two. The first generational human rights are 'civil and political rights' while the second ones are 'economic, social and cultural.'

While discussions so far have failed to acknowledge that the Solomon TELEKOM monopoly case rests on legitimate legal allowances, certainly its role juxtaposed against the above DIGICEL award makes interesting discussions.

For the reader, SI does not have a 'competition policy', however, the Solomon Islands Consumer Protection Act 1996, has a 'Monopolisation' sub-section (Chapter 63 of the SI Constitution) and in its Article 29 (1), it stated that a 'trader .who is in a position substantially to control a market for goods or services shall not take advantage of the power in relation to that market. Either by to eliminate or substantially to damage a competitor in that market or in another market, to prevent the entry of a person into that market or into another market; or to deter or prevent a person from engaging in competitive behaviour in that market or in another market.'

Simply put, in the ordinary reading of the above, TELEKOM cannot 'prevent the entry of a person [DIGICEL] into the telecommunications market (service). Maybe. However, the legal breath from which it got the highly debated monopoly is the SI Telecommunications Act (Chapter 115, SI Constitution). Article 1 of the Act refers to the 'Telecommunication Authority' as the Controller of Posts and Telecommunications in Solomon Islands. This is the body that is mandated by law [Chap 115, Part II (4) (5)] to issue telecommunications license to investors in the telecommunication sector, and which on 17 November 2003, the SI government invoked to grant a fifteen years monopoly right to TELEKOM.

But all is not lost for SI-ders. The legal reason why DIGICEL has started talks with the current SIG regarding the TELEKOM license duration, was because in the above mentioned 'SI-TELEKOM monopoly document' by clause 13.6, a review of the exclusivity may be given to a company by the SIG 'within three months after the expiry of 5 years from the grant'. And the 'exclusivity issue' is solely a matter for the Telecommunications Authority and SIG to decide on. Simply put, by November 17 2008, this clause may allow for DIGICEL's entry. If SIG decides in the affirmative, by its legal reading, before 17 February 2009, DIGICEL will start its establishment in SI. These are my legal readings and I have the right to be wrong!

For the inquisitive reader, the High Court cases between the above two in Civil Case No. 394 (2006) and Civil Case No. 207 (2007) certainly make interesting reading.

Finally, by the end of 2008 SIG should table a bill for a 'Competition Policy Act' (PNG has one and established a Competition Commission in 2002). In 2009 DIGICEL may start to play an important role in the realisation of a basic right of SI-ders to affordable communication, and TELEKOM may see its legal right weathering away that it may have to compete for new rights.

I rest my case.


Disclaimer: The views and opinions expressed in this letter/article are those of George Hoa'au and do not necessarily reflect the official policy or position of Solomon Times Online.

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