Why the govt should take appointments at the Bangladesh Competition Commission seriously

The office of the competition commission may be compared with that of the Judiciary or any other public institution. The task of ensuring a fair field in the business is as important as those of other public institutions, if not more. Photo: Collected.

On 21 December 2022, the Ministry of Commerce published a 'Recruitment Notification' calling for applications for the positions of 'members'. As stated by the notification, the vacant positions fall in the Economics, Public Administration and Law categories, with one vacancy offered against every single specialised category. 

In the process of appointment, the government enjoys enormous discretionary power. Past appointments gave such an impression that the competition commission, despite being a public office entrusted with specific technical tasks, is something less important and functions rather as a retiring club of bureaucrats. 

Appointments of non-experts to run the show have led to the slow progress of the commission thus far. However, the country needs a well-functioning competition commission more than ever. On the eve of Bangladesh's graduation to Developing country status in 2026, it is high time the government should take the appointments at the Bangladesh Competition Commission seriously.

The theory of the 'Free Market' economy necessarily entails the need for regulating trade practices that restrict free trade and competition in the market. The prime reasons for such regulation revolve around two noble purposes. 

The first one is the necessity of competition in the market for the survival of the small and medium players. The other purpose is the protection of consumers' interests in an economic structure where oligopoly, if remain unregulated, may turn the market into a cartel and defy the most basic proposition on which a market economy stands – the law of supply and demand and its relationship with the price.

In the Bangladesh setting, the Competition Act (CPA), 2012 came with the objectives of promoting, ensuring, and sustaining a congenial atmosphere for competition in trade. At the same time, it aims at executing direct measures like preventing, controlling and eradicating collusion, monopoly and oligopoly. But with all its good intentions, it will remain a paper tiger until the appointments in its institutional positions are taken seriously. 

The global practice is that to check the anticompetitive trade practices in a domestic setting, the government appoints a separate bureau or commission. The need for so comes from the fact that regulating monopoly cannot be properly done by any non-expert group nor by using judicial or executive power independently. 

Rather, to this end, a separate body having the technical knowledge about the topic and exercising the judicial and executive power at the same time is needed.

The CPA established the Competition Commission as a statutory body comprising a chairperson and not more than four members. With the introduction of the Bangladesh Competition Commission (Chairperson and Members) Appointment Rule, 2015, there exists a procedural framework that works for the selection of eligible candidates to be recommended for appointments by the Government. 

In reality, however, the Commission has become a retiring bureaucrats' club, with the appointed persons having no or little prior experience in competition law and/or economics. 

The positions of members and chairperson in the competition commission are very important and require those persons to apply practical and theoretical knowledge of economics, commerce, trade, and law. 

Section 8 of the CPA, entrusts the commissions with a myriad of responsibilities including but not limited to inquiring into the anticompetitive acts, inquiring into any complaint made under this act, eliminating practices having adverse effects on the market, making rules, policies and instructions relating to the combination. 

On top of these, the commission (Chairperson or any member of it) has the same power as a civil court exercises under the Code of Civil Procedure (CPC), 1908 for some matters including the summoning of any person, examining and inspection of any document. 

So, to sum up, the members and the chairperson must have relevant technical and theoretical skills for the proper functioning of it. And if people unacquainted with competition law and policy are in the chair of members, they might end up making inappropriate policies, impairing the prospect of further growth of Bangladesh's economy.

As to the appointment of the Chairperson and members, the CPA only outlines the basic required credentials to pass the eligibility test under section 7. Accordingly, Persons who have knowledge in economics, matters relating to the market, public administration or similar subjects or legal profession or legal affairs in public-private offices or such other professional experience of not less than 15 years are eligible to be appointed as the Chairperson or Members of the commission. 

The rules of 2015 provide a detailed procedure of the selection of eligible persons to be recommended for the vacant persons. It establishes a Selection Committee which is headed by the Minister, the Ministry of Commerce. This committee recommends two persons to the Government for every single vacant position (Rules 4 and 5).

However, the discretion is endowed with the Government to decide if the condition of 'such other professional experience is useful' as laid in section 7 is fulfilled and to finalise the appointments. As the rules of 2015 imply, the final appointing authority can only select a person as a member or chairman if that person is recommended by the Selection Committee. 

This may give the impression that the Government or the final appointing authority does not have any discretionary power. But, in reality, this is not so. 

The Selection Committee selects the eligible Candidates by a simple majority vote and all 5 of the 6 members, including the president of the selection committee, are part of the Government (Rules 4 and 5). That leaves the other person who does not constitute a part of the Government with no power at all to exercise in the selection procedure.

The office of the competition commission may be compared with that of the Judiciary or any other public institution. The task of ensuring a fair field in the business is as important as those of other public institutions, if not more. 

The judicial tenures of Supreme Court Judges are not time-bound, and expire only on judges' attainment of 67 years, providing the judges with required time to adapt to their job. Conversely, the tenure of the Chairperson and Members of the Competition Commission is very short and ends after 3 years from the date of their appointment (Section 7(6) of the CPA). 

Although there is scope for re-appointment, the fact remains that this is a very short time to be trained, and for that reason, appointments should be made with due care and caution. Only picking bureaucrats or former members of the Bangladesh Judicial service without requiring them to have expertise on relevant economic, trade, and legal matters will only cause damage to the existing infrastructure of anti-competition regulation, if anything at all.

Sketch: TBS

Saurov Dash Roni is a freelance journalist and a former law student.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.