Why Bangladesh Competition Commission needs reform
History has given us multiple chances to reform our institutions, nonetheless, we could not grab those opportunities to build strong, accountable ones or enhance their capacities. Our economy and market are very much interconnected with a competition-friendly market where all stakeholders can compete, buy, and sell according to their own choices and abilities. However, have there been any major changes in this field since our independence, except for the introduction of a new act by repealing an old one? It should be noted that The Monopolies and Restrictive Trade Practices Ordinance, 1970 was the earliest legislative effort which was never implemented. Therefore, the Competition Act, 2012 marked a substantial shift, influenced by structural reforms advocated by the International Monetary Fund (IMF) and World Bank. Bangladesh Competition Commission (BCC) came into action in 2016, and since its inception, no major impacts have been seen. Hence, BCC requires significant reforms in line with global competition policies and best practices.
At present, BCC is working under the Ministry of Commerce, but we have to introduce some checks and balances to ensure its impartiality and transparency. In this regard, the High Court should be the appellate authority forum and not the government as currently stipulated in section 29 (1) (b) of the act. Even in India, they have a competition appellate tribunal to try appeal cases. Excessive control of the Ministry of Commerce over BCC's decisions is affecting its operational autonomy. So, this change will create operational independence and judicial accountability. To erase institutional gaps and governance constraints, there should be some changes in BCC's structural body. The appointment criteria of BCC members should be more transparent. A superior selection board comprising the chief justice, attorney general, cabinet secretary, and a renowned academician should nominate the chairperson and other BCC members, prioritising people with knowledge of the competition field. Officers working in the BCC are currently only from the administration cadre but judges from the district judiciary, lawyers, and expert academicians should be included.
For all latest news, follow The Daily Star's Google News channel. 
The investigation department is the nucleus of BCC's operation. According to the 2022-2023 Annual Report of BCC, the total number of cases is 66; among them, 47 are in the hearing stage, and 19 are under investigation. BCC's capacity should be improved by using technology to detect anti-competitive content and a separate investigation wing without the involvement of any BCC member. Since the commission plays both prosecutorial and adjudicatory roles, its slight involvement in the investigation stage should not be expected.
According to the statistics of 2022-2023, 48 cases were filed before BCC, and only six were filed upon a complaint, and the rest on suo moto basis. In this regard, global methods for tracing anti-competitive issues must be incorporated. First, we should introduce "dawn raids," which are frequently used by antitrust authorities globally, such as the European Commission, Singapore, India and Japan. If BCC can authorise the investigation unit to conduct dawn raids, it will raise fear in the minds of market syndicates playing behind the screen.
Newspaper reports frequently inform us about the market syndicates behind the price fixing of daily necessities in Bangladesh. To address this cartel issue, our anti-cartel enforcement mechanism has to be more comprehensive. Along with public enforcement, there should be a private enforcement mechanism as well, so that the aggrieved party can seek remedies before the authority. To incentivise people with cartel tips, it is high time to introduce "leniency mechanism" in our competition law with transparent penalty reduction guidelines. More than 60 jurisdictions have been using leniency mechanism to detect cartels and bring them before the authorities. Countries like Bangladesh, where resources are limited, the leniency mechanism works since it is cost-effective and reduces time for case proceedings. So, there is scope for more comprehensiveness in the regulatory framework of the act. Recently, BCC has signed an MoC with the FTC, Japan, which is praiseworthy, but we need to sign MoUs with other competition authorities as a part of international co-operation to enhance activities.
An effective competition law is essential for a healthy and thriving economy, ensuring fairness, efficiency, and consumer welfare, which can be a game-changer for developing countries like Bangladesh. Institutional reforms are crucial in the present situation to tackle anti-competitive agreements. Taking inspiration from the best practices of the world, BCC should look forward to making substantial changes in its legal and institutional framework.
Shuvadeep Paul is an attached officer (senior assistant judge) at Ministry of Law, Justice and Parliamentary Affairs of Bangladesh and MEXT (YLP) fellow at Kyushu University, Japan. He can be reached at [email protected].
Views expressed in this article are the author's own.
Follow The Daily Star Opinion on Facebook for the latest opinions, commentaries, and analyses by experts and professionals. To contribute your article or letter to The Daily Star Opinion, see our guidelines for submission.
Comments