Absolute independence of
regulatory bodies is neither possible nor desirable. A regulator should not set
and implement its own agenda. “Independent” regulators are expected to be
subject to government oversight and a system of checks and balances.
Effective
regulation that supports sustainable investment requires some independence
from political influences, especially on a day-to-day or decision-by-decision
basis. The regulatory body must be an impartial, transparent, objective and
non-partisan enforcer of government-determined policies by means set out in
controlling statutes of the regulator, free of transitory political influences.
The regulator should also be independent from the industry that supplies ICT
services.
The regulator should
implement the policy of the government and only make decisions that are within
its legal authority. However, regulators need insulation from political
intervention, so that the regulatory process is not politicized, its decisions
are not discredited and the policy of the government is implemented. As
discussed in Module 6, Legal and Institutional Framework, a balance
is needed to ensure that the regulator is both independent and responsive to
the broad policies of the government. Several formal safeguards have been
employed to achieve such a balance, such as:
- Providing the regulator with a distinct statutory
authority, free of ministerial control;
- Prescribing well-defined professional criteria for
appointments;
- Involving both the executive and the legislative
branches of government in the appointment process;
- Appointing regulators (the Director General or Board/Commission
members) for a fixed period and prohibiting their removal (subject to
formal review), except for clearly defined due cause;
- Where a collegiate (Board/Commission) structure has
been chosen, staggering the terms of members so that they can be replaced
only gradually by each successive government;
- Providing the agency with a reliable and adequate
source of funding. Optimally, charges for specific services or levies on
the sector can be used to fund the regulator to insulate it from political
interference through the budget process;
- Exempting the regulator from civil service salary
limits to attract and retain the best qualified staff and to ensure
adequate good governance incentives; and
- Prohibiting the executive from overturning the
agency’s decisions, except through carefully designed channels such as new
legislation or appeals to the courts based on existing law.
There are
currently far more regulatory authorities independent from ministerial control around
the world than dependent regulators. 153
countries have established regulatory authorities that are separate from the
ministries. As shown in Figure 1,
Section 1.5, there has been a steady rise in the number of separate regulators
over the last 20 years. 125 of these
countries with separate regulators have also ensured that the regulator is autonomous – or independent – in the
decision-making processes. The separate
regulator in the remaining 28 countries must get approval from the relevant
ministry or other official body prior to issuing decisions.[1]
Figure 1. Number of Countries
with Separate Regulators around the World
Source: ITU
ENDNOTES
[1] ITU, ICT EYE, Regional Reports (2009).