The idea of an independent commission is primarily based on various legal and political contexts to bring together individuals of diverse views, expertise, and backgrounds to tackle legally difficult, technically complex, and often politically sensitive issues. These Commissions are "independent" of the political will exemplified by the executive branch, yet they are also multi-member organisations, a fact that tends towards accommodation of diverse or extreme views through the compromise inherent in the process of collegial decision making. The Commissions have the full range of regulatory authority, i.e., they can issue regulations, take administrative action to enforce their statutes and regulations, and decide cases through administrative adjudication.
One Judge in USA said "The Commission is to be non-partisan; and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative". Some of these are constitutional bodies and some formed under different legal regulating authority, and some are quasi-judicial bodies.
The Competition Commission (CC) of Bangladesh is a statutory body and may exercise the same power (section 3) as a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) and (Section 6) all proceedings before the Commission shall be deemed to be judicial proceedings under sections 193 and 228 for the purposes of the section 196 of the Penal Code, 1860 (Act XLV of 1860), and the Commission shall be deemed to be a Civil Court for the purpose of section 35 and 195 of the Code of Criminal Procedure, 1898 (Act V of 1898). But appeal against decision lies with the Ministry of Commerce (section 29). The Commission is stuffed with officials on deputation (section 12). The Secretary to the Commission is to be appointed by the government and terms and conditions of his service are to be determined by the government.
In many countries, appointment of Chairman and members of the Commission is done by an independent search committee. In some countries, the person thus nominated for appointment is a judge of a High Court having special knowledge and professional experience of not less than fifteen years. The relevant law of Bangladesh empowers the government to appoint Chairman and Members through interview process.
In contract, under Section 9 of the Indian Competition Act, 2002, the Chairperson and other Members of the Commission shall be appointed by the central government from a panel of names recommended by a selection committee consisting of a) the Chief Justice of India or his nominee as Chairperson; (b) Secretary of the Ministry of Corporate Affairs as Member; (c) Secretary of the Ministry of Law and Justice as Member; (d) two experts of repute who have special knowledge of, and professional experience in international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs or competition matters including competition law and policy as Members.
Section 8(2) of the Indian law mentions that the Chairperson or every other Member shall be a person of ability, integrity and standing and who has special knowledge of, and such professional experience of not less than fifteen years in international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs or competition matters, including competition law and policy.
In Hong Kong, the appointments are done with the recommendation of the Judicial Officers Recommendation Commission. The authority considers the person's expertise or experience in industry, commerce, economics, law, small and medium enterprises or public policy.
The nominating or search committee in some countries devise its own procedure for purpose of the selection of the Chairperson or Members of the Commission. The committee shall recommend a person, or a panel of not more than three persons in order of priority, as the committee may think fit, in respect of each appointment.
Bangladesh government in a recent notice no 26.00.0000.090.11.025.15.273 dated August 13, 2018 invited application for two positions of Members of CC. The required qualification mentioned for one post is "15 years' experience of export of goods and services, knowledge of international trade and law and rule of WTO and experience of working as commercial counselor or economic/commercial minister in Bangladesh missions abroad". The qualification specified has been to suit ex-bureaucrats only since the applicants should have experience of government job although the law mentions that experience in private sector is also illegible to be Chairman and member of CC. However, according to the notice, applicants for the other position of member should have the experience of a District judge or a legal practitioner for 15 years.
The culture of providing post-retirement extra benefits to former bureaucrats having right connections in the state's power and political corridors is not new in this country, which needless to mention, is fraught with perils that at times leads to gross inefficiency and incompetence. If this culture also defines appointments in the Competition Commission, one cannot hope to see it as an independent entity.
M S Siddiqui is a legal economist.
