 |
Joydeep Chowdhury |
“Crack the silence of closed doors.
Peel back the velvet drapes of economic secrecy.
Let sunlight scald the shadows where monopolies thrive.
Let the gavel echo louder than backroom deals.”
In a
rule-based market system, openness is essential; it serves as the foundation
for legal responsibility. The Bangladesh
Competition Commission (BCC) was founded under the Competition
Act of 2012 to foster and uphold fair competition, prevent the
abuse of market dominance, and regulate anti-competitive conduct in Bangladesh.
Despite
being in operation for almost a decade, the BCC
has not fulfilled one of the essential duties of a quasi-judicial
entity: the publication of its orders, decisions, and
reasoned judgments.
The Legal Framework: Text vs. Enforcement
The
Competition Act, 2012, particularly in Sections 15–19, explicitly
delineates the forbidden anti-competitive
behaviours. These encompass agreements that significantly impair
competition, the exploitation of a dominating position, and mergers or
acquisitions that may result in market concentration. The BCC, pursuant to Section 24, possesses
the authority to undertake enquiries, call witnesses, require the production of
documents, and provide determinations.
Nonetheless,
the Commission's failure to systematically publish its findings substantially
hinders the evolution of Bangladesh's emerging competition jurisprudence. The
entitlement to reasoned judgements is not only a hallmark of effective
administration; it is a constitutional need grounded in the notion of natural
fairness. Union of
India v. Mohd. Ramzan Khan [(1991) 1 SCC 588] established
that reasons are the essence of administrative adjudication. This emphasizes
the importance of reasoned administrative decisions.
Furthermore,
although the Act allows for an administrative appeal to the Government under Section 29, there
exists no legislative right of appeal to the courts. Aggrieved parties may
pursue judicial review utilising writ petitions under Article 102
of the Constitution. Nonetheless, in the absence of
written rulings or disseminated legal rationale from the Commission,
substantial judicial review becomes exceedingly challenging—compromising the
openness and accountability anticipated in regulatory governance.
Comparative Jurisprudence: Transparency as a Norm
Around the
world, competition authorities understand that institutional legitimacy and
regulatory efficacy depend on openness and publishing. Established under the Competition
Act, 2002, the Competition
Commission of India (CCI) offers a robust comparative case. It
not only publishes all its orders (including closure reports and prima facie
opinions) but does so with reasoned analysis grounded in economic and legal
evidence.
Take, for
instance, the CCI’s seminal decision in Hyundai
Motor India Ltd vs Competition Commission Of India & Ors, where the
Commission fined the company for imposing resale price maintenance. The ruling
was publicly available, cited relevant market theory, and became a precedent
for vertical restraint cases. Such rulings have had both deterrent and
educational value, shaping market behaviour and legal advice alike.
Even more
advanced jurisdictions—like the UK’s
Competition and Markets Authority (CMA) or the European
Commission’s Directorate-General for Competition—maintain
extensive online repositories that include not just final orders, but also
investigative reports, economic analyses, and dissenting opinions.
Structural Consequences of Silence
The
non-publication of judgments by the BCC is not a technical oversight; it is a
structural anomaly with wide-ranging consequences:
- Legal
Uncertainty: Businesses lack clarity on the scope of
prohibited conduct. For example, in sectors where exclusive distribution
agreements or price coordination are common (such as cement,
pharmaceuticals, and mobile telecom), the absence of interpretive guidance
leaves market actors in a legal vacuum.
- Lack of
Predictability in Adjudication: In
the absence of published decisions and a developed jurisprudence, courts
and counsel are left without guiding precedents, while judicial
oversight, limited to writ
jurisdiction, remains largely ineffective in practice
- Procedural
Deficiency: Without publication, there is no way to assess
whether the BCC has followed due process, upheld principles of audi
alteram partem, or relied on empirical
evidence as required by Sections 25 and 26 of the
Act.
Moreover,
the BCC has the authority to impose penalties of up to 10% of an enterprise’s
average annual turnover under Section
20(1)(a)(ii) of the Competition Act, 2012—a power
that reflects its quasi-judicial mandate in regulating market conduct.
The absence
of reasoned and published decisions in such cases undermines procedural
fairness and violates the doctrine of
proportionality, as elaborated in Om Kumar v.
Union of India [(2001) 2 SCC 386].
Why Transparency is a Legal Necessity, Not Just a Norm
The legal
principle that “justice must not only be done but must also be seen to be done”
(as famously stated in R v.
Sussex Justices, ex parte McCarthy [1924] 1 KB 256) applies
with equal force to administrative and regulatory bodies. As a quasi-judicial
authority, the BCC is obliged to render reasoned, reviewable, and public
decisions. This is not an aspirational ideal but a constitutional requirement
under Articles 27 and 31 of the
Constitution of Bangladesh, which guarantee equality before law and protection
of law.
If the BCC’s
orders are not published:
- The
right to information is negated;
- The
doctrine of legitimate expectation is breached;
- The
rule of law is diminished in its very foundation.
The failure
to publish judgments also violates the basic standards of administrative
accountability under international norms. For instance, the OECD's 2022 Competition
Assessment Toolkit underscores that the absence of
published rulings “can lead to arbitrary enforcement, reduce legal certainty,
and dampen the deterrence value of competition regimes.”
Potential Remedies and Legal Reform
The solution
lies in structural reform, statutory clarity, and digital infrastructure:
- Mandatory
Publication Clause: The Competition Act must be
amended to require that all final decisions and penalty orders be
published within a fixed timeline (e.g., 30 days), with anonymization
provisions where necessary.
- Digital
Judgments Portal: The BCC should be directed,
through appropriate amendments to the existing legal framework or by
issuing regulatory rules under the authority of the Government, to
maintain a publicly accessible, indexed database of its rulings, in both
English and Bangla.
- Parliamentary
Oversight and Reporting: The Standing Committee on the
Ministry of Commerce should require the BCC to submit annual reports
detailing the number of complaints received, decisions issued, and actions
enforced.
- Capacity
Building: The BCC must be staffed with in-house legal
officers, economists, and data analysts to ensure that decisions are based
on sound legal and empirical grounds.
These
reforms are not radical. They are legally justified, institutionally sound, and
constitutionally required.
The Cost of Inaction: A Legal Perspective
The
continued invisibility of BCC decisions undermines the doctrine of legal
certainty, a cornerstone of any functioning legal system. It also threatens the
enforceability of administrative law, making BCC orders susceptible to being
quashed for being non-speaking or arbitrary, as per the ratio in Maneka
Gandhi v. Union of India [(1978) 1 SCC 248].
In practical
terms, the silence of the BCC:
- Prevents
benchmarking against previous decisions;
- Erodes
voluntary compliance among businesses;
- Creates
a regulatory void that emboldens cartels and monopolies.
It is worth
recalling that anti-competitive conduct thrives in legal darkness. The absence
of precedents is itself a form of deregulation.
Conclusion: Law Must Be Seen to Be Heard
If
Bangladesh is committed to building a robust, fair, and transparent economic
regime, the Bangladesh Competition Commission must speak—not in
whispers, not through unpublished warnings, but through reasoned judgments made
public.
The voice of
law is not in its enactment but in its enforcement. Until that voice is heard
clearly, the Competition Act, 2012, remains a statute in waiting—aspirational
in text, anaemic in application.
The law is not a mirror for
power—it is a lamp for justice.
In every judgment withheld, a truth is
buried. Dig it up. Let justice breathe.
The writer,
Joydeep Chowdhury, is a Lecturer in Law and Assistant Course Coordinator at
Sonargaon University (SU), Dhaka. He is also an Advocate at the District and
Sessions Judge Court, Dhaka, and a researcher in Bangladesh dedicated to
advancing legal reforms and promoting digital rights for a just society. He
also regularly writes op-eds in various national English dailies.