The power to effect ICT change

The first set of cyberlaws in Malaysia which were passed in 1997 and 1998 included the Malaysian Communications and Multimedia Commission Act 1998 (MCMCA), which came into force in that year. The MCMCA establishes and gives the Malaysian Communications and Multimedia Commission (MCMC) the power, amongst other things, to supervise and regulate communications and multimedia activities in Malaysia and to enforce the relevant laws. The role of MCMC is to implement and promote the national objectives of the Malaysian Government for the communications and multimedia sector. You can look at MCMC as Malaysia's single regulating body for the converging industries of communication and multimedia – thus, it can be looked at as Malaysia's internet, telecommunications and broadcasting regulator. In addition to that, MCMC is also the regulator for the postal industry and was appointed the Certifying Agency under the Digital Signature Act 1997. Some basic information on MCMC, its constitution and its workings is important as there seems to be a dearth of material on its activities – perhaps the relevant licensees in the industry are familiar with MCMC as the industry's regulator, but not the layman. The two Acts which give MCMC its powers are the MCMCA and the Communications and Multimedia Act 1998 (CMA). In this month's column, we shall discuss the MCMCA in detail. MCMC rules and regulations According to the MCMCA, the MCMC shall consist of a Chairman, one member representing the Government and two to five other members who will be appointed for a period of two to five years. The Chairman is responsible for calling meetings as often as is necessary for the efficient performance of MCMC's functions. The MCMC may also invite experts to a meeting for his/ her advice on a specific matter being discussed in the meeting. Decisions of the members are made by resolution. Minutes of all meetings must be kept and in any legal proceeding, is admissible as evidence. The MCMCA provides that the Chairman and members are to be remunerated for their work. There are provisions for revocation of and resignation from an appointment. To protect the integrity of the MCMC, the MCMCA provides for the duties of disclosure where a person has some interest in a communications and/ or multimedia business. It also requires that upon his or her appointment, the member makes a statutory declaration stating whether or not he or she has an interest in any undertaking involving any communications and multimedia activity. He or she must also give notice in writing if the member acquires a relevant business interest during the tenure of his or her appointment. The MCMC may establish any committee that it feels necessary to assist it in its functions. It may elect any of its members to be the chairman of a committee. Any person can be appointed to a committee. A particular committee is subject to the directions given by the MCMC. A committee can invite any person to attend its meetings to advice it on any matter discussed in its meetings. Under the MCMCA, members of a committee shall be paid allowances. The MCMC shall have all the powers under MCMCA and other relevant law, including the following functions: a) To advice the Energy, Communications and Multimedia Minister on all matters concerning national policy objectives for communications and multimedia activities; b) To implement and enforce the provisions of communications and multimedia laws; c) To regulate all matters relating to communications and multimedia activities which are not provided for in the communications and multimedia law; d) To consider and recommend reforms to the communications and multimedia law; e) To supervise and monitor communications and multimedia activities; f) To encourage the development of the communications and multimedia industry including in the areas of research and training; g) To encourage self-regulation in the communications and multimedia industry; h) To promote and maintain the integrity of all persons licensed or otherwise authorised under the communications and multimedia law; i) To render assistance to and to promote cooperation and coordination amongst persons engaged in communications and multimedia activities; and j) To carry out any function under any written law as may be prescribed by the Energy, Communications and Multimedia Minister. Working with the Minister The MCMC shall have all powers as may be necessary for or in connection with the performance of its functions under the communications and multimedia law. MCMC may delegate any of its functions or powers, except the power to make subsidiary legislation, to the Chairman, a member or a committee. The Energy, Communications and Multimedia Minister may give directions to the MCMC regarding the performance of the functions and powers of the MCMC, and the MCMC is obliged to give effect to such directions. The Chairman of MCMC is also the chief executive. He or she shall be responsible for the overall administration and management of the functions, the day-to-day running of the MCMC and the general control of its employees. In discharging his or her duties, the chief executive shall act under the general authority and directions of the MCMC. The management and discipline of employees is specifically detailed in the MCMCA. Communications fund The MCMCA also establishes a Malaysian Communications and Multimedia Commission Fund, which is to be administered and controlled by the MCMC. Money for the fund may be amounts provided for by Parliament, from licence fees, administration charges, levies and other charges imposed by the MCMC, income from its investments, monies derived from the sale, disposal, lease or hire of property, mortgages or charges acquired by the MCMC, money earned from consultancy and advisory services provided by its borrowings. One wonders whether or not the provision of services like consultancy and advisory services as mentioned in the paragraph above are appropriate to be performed by a regulator. What if it came into competition with licensors which it also regulates? Monies from the fund is disbursed to: a) Pay any expenditure lawfully incurred by the MCMC; b) Pay remuneration, allowances and any expenses of members of the MCMC, members of its committees and its employees; c) Pay any expenses, costs or expenditure in relation to the procurement of goods or services including the engagement of consultants and legal fees; d) Purchasing or hiring equipment, machinery and any other related material, acquiring land and any assets and carrying out any other works in the performance of its functions; e) Repaying any borrowings; f) Granting loans and advances to its employees; and g) Paying any expenses for carrying into effect the provisions of the communications and multimedia laws. The MCMC may appoint investigating officers to exercise powers under the communications and multimedia laws. The officers shall have powers to inspect and investigate any offence under the communications and multimedia laws. The members of the MCMC, its committees, its employees, agents or any other person attending any meeting of the MCMC or any of its committees are all bound to keep secret any information obtained by them in the course of their duties. If any person contravenes this obligation, it will be a criminal offence. MCMC also has the power to employ agents like lawyers, bankers and consultants to transact business in the performance of its functions.