Staff Correspondent, NewAge, September 6, 2008
The Bangladesh Telecommuni-cation Regulatory Commission appears to have taken some controversial decisions by clearly exempting some mobile phone operating companies from harsher legal punishment.
The owners and directors of these companies, who were illegally terminating international calls and are therefore liable to imprisonment and financial penalties through public trial in the courts of law, have been allowed to escape the legal procedure in exchange of only financial penalties determined arbitrarily by the BTRC authorities.
The BTRC fined four mobile phone operators — GrameenPhone (majority shares owned by Telenor), Banglalink (OrasCom), Aktel (Telekom Malaysia) and CityCell (SingTel)— only Tk 838 crore in spite of allegations that the companies in question have terminated international calls worth hundreds of crores of takas, which were siphoned out of the country.
The BTRC lodged four cases against the errant companies with different police stations in the city in 2007 after law enforcing agencies, including the Rapid Action Battalion, discovered their involvement in voice over internet protocol (VOIP) for international call termination without having licences to do so.
The BTRC, however, submitted a ‘final report’ instead of charge-sheet with the local courts in four cases, dropping the charges against the companies after imposing Tk 168.40 crore penalty on GrameenPhone, the country’s largest mobile operator, Tk 145 crore on Banglalink, Tk 125 crore on Aktel and Tk 150 crore on CityCell after negotiations with them.
Later, in 2008, the BTRC again uncovered illegal practices by the GrameenPhone, but the BTRC authorities preferred not to implicate the high-profile directors of the company for reasons unknown, although the concerned law obligates them to do so. They rather implicated eight serving and former officials of the company in the case. Subsequently, the BTRC decided to submit to the court a ‘final report’, clearing the GrameenPhone officials of the crime, instead of pressing charges against the guilty company, after negotiations which led the GrameenPhone to pay Tk 250 crore as penalty.
When a director was asked why the BTRC decided not to take the companies to court, he told New Age that they imposed ‘administrative fine’ on the companies to recover the revenue lost because of the illegal call termination by them.
However, the Bangladesh Telecommunication Act 2001, under which the BTRC was set up and according to which it is supposed to operate, shows that it does not have the jurisdiction to settle the ‘crime’ of illegal call termination outside the court.
However the chairman, Major General (retd) Manzurul Alam, believes that the BTRC has the jurisdiction either to impose penalties on the errant companies or go to court for their trial.
‘The commission has the right to choose what steps it will take. We told them [operators] that they have caused these amounts of financial loss to the public exchequer. We had two options, we could impose penalties or we could go to court. They agreed to pay the penalties. We took the penalties for the greater interest of the country,’ Manzurul Alam told New Age on August 26. ‘We did not go to court as it would take time to get the issue settled.’ But the law does not seem to support his views.
Section 35 (1) (Kha) of the Telecommunication Act says, ‘No person will provide the telecommunication service in Bangladesh and to foreign countries from Bangladesh without any licence.’ Section 35(2) says, ‘If the person violates the earlier Section, it will be a crime, and for that he will be sentenced to imprisonment for 10 years or fined Tk 10 lakh or both.’
Section 65 (2) of the law, referring to ‘administrative fine’, says, ‘In addition to the provisions included in this Act for imposing administrative fine, the commission can take steps to impose administrative fine by enacting regulations for violating other rules and regulations of this Act. But there is a condition that such provisions for administrative fine will not be enforced for violating Sections 35(1), 55(1) and 57(2).’
Legal experts said that the companies in question have violated Section 35(1), which can be dealt with, as per Sections 77 and 79 of the Act, only by the court of a first class magistrate or metropolitan magistrate or courts higher than them. These courts should take into account the crime under the Act and the investigation, trial and appeal will have to be in accordance with Code of Criminal Procedure, added the experts.
When his attention was drawn to the fact that BTRC’s decision had directly violated certain Sections of the Act, the BTRC’s boss asked the reporter whether he was ‘being interrogated’. ‘I will not submit to any examination by anybody.’
Manzurul also refused to explain the basis of fixing the amounts of the penalties imposed on the errant companies.
When he was reminded that there are allegations that these companies had terminated calls worth hundreds of crores of takas, Manzurul said, ‘It could have happened. But we fined them on the basis of the documents and evidences that we found.’
Notably, GrameenPhone earned revenue of around Tk 2,800 crore in 2007, Banglalink Tk 1,340 crore and Aktel Tk 1,440 crore. The CityCell’s revenue could not be ascertained. Apart from GrameenPhone, all the companies claimed that they incurred losses.
When asked why only eight officials of GrameenPhone instead of its owners and directors were sued for illegal VOIP in the second case, Manzurul said, ‘We lodged the case against people who operate Grameen as per their documents.’
But the law suggests otherwise. Section 76 of the Act says that if any company violates any rules, every owner, director, manager, secretary or other staffers or employees or representatives should be considered guilty unless s/he can prove that the violation has happened beyond his or her knowledge or he or she tried his or her best to stop the violation.