BY an unexpected coincidence, the decision of the Islamabad High Court to disqualify the chairperson and two members of the Competition Commission of Pakistan (CCP) came just a day after the observation of the federal cabinet that the commission was incompetent and involved in malpractices.

However, the federal cabinet failed to support its observations as the spokesperson of the government at that time, Dr Firdous Ashiq Awan, even acknowledged that most of the decisions and orders of CCP had not been implemented.

Currently, there are around 127 cases and stay orders pending in the courts of law against CCP orders which include fines worth Rs27 billion imposed upon various sectors including flour mills, health care, sugar, cement, telecom, real estate, capital markets, etc. Some of the cases have been pending for more than a decade, while the performance of the CCP has been one of the few common topics among respective government functionaries, including the incumbent PTI-led setup.

While issues related to some sectors pop up repeatedly, the recommendations and findings have not been considered by the respective governments, such as the show-cause notices issued to the Pakistan Sugar Mills Association (PSMA) and sugar mills in 2009, when the CCP found that the mills were behaving like a cartel by fixing the price of refined sugar and engaging in collusive bidding.

‘There are only two ways to protect corruption in businesses — one is to dilute competition law and the other is to dilute the Competition Commission of Pakistan’

However, the PSMA members obtained a stay order from the Sindh High Court restraining the CCP – the case is still pending in court. Despite repeated requests by several CCP chairpersons all the cases have not been clubbed in one court or the Competition Appellate Tribunal (CAT).

Former chairman CCP Khalid Mirza said that the commission has been accused of underperformance only because those in power want to protect the corrupt and exploiters. “There are only two ways to protect corruption in businesses – one is to dilute competition law and the other is to dilute the competition commission,” Mr Mirza said.

“Several attempts have been made to dilute the competition law and cases have been filed against the legality of CCP; these cases were clubbed at the Lahore High Court but have been pending for almost 10 years,” he explained. The judgement in the case was reserved on June 22, 2017. He added that to dilute the powers of the commission, the best way is to defy its orders by obtaining stay orders against the decision of the CCP.

“All governments have tried to keep the CCP underfunded and there is always one person in the federal cabinet who continuously criticises the performance of the CCP or hurls criticism at the chairman or members of the CCP,” the former chairman of CCP said.

Incidentally, advisor for institutional reforms and austerity Dr Ishrat Husain, in his report presented to the federal cabinet, recently pointed that penalties imposed by the CCP have not been recovered due to court injunctions and stay orders, while the federal and provincial governments have failed to take actions over the recommendations made by the commission regarding the sugar industry in April 2018 and the auto sector in September 2018.

While there is general criticism that the CCP orders have not been implemented, the CAT has been rendered non-functional for more than a year as the term of one of CAT’s technical members Justice Miftah-ud-Din expired on January 16, 2019, and the term of the chairperson Justice Fasih-ul-Mulk expired on April 7, 2020. Similarly, the term of the second technical member CAT Mr Ahmed Owais Pirzada will expire on June 3, 2020.

However, the federal cabinet in its meeting held on April 21, 2020, directed the attorney general of Pakistan to fill the vacant positions of CAT members and report to the cabinet. The federal cabinet also noted that the cases filed against the decisions of the CCP should be clubbed and directed the attorney general to take measures in this regard.

Dr Ishrat Hussian’s report has recommended to the government to clear a stumbling block in the functioning of the CCP as a large number of businesses claim that the jurisdiction of the CCP does not apply to the provinces after the 18th Amendment and have filed lawsuits against the commission. This matter has been pending since 2010.

Published in Dawn, The Business and Finance Weekly, May 4th , 2020