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ISLAMABAD: The federal government has made the Competition Appellate Tribunal fully functional by appointing two technical members after a lapse of two years. It is learnt that Muhammad Asghar Chaudhary and Raja Saad Sultan have been appointed as new Technical Members of the tribunal, removing a major bottleneck in the implementation of Competition Commission of Pakistan’s (CCP’s) judgments.

As per two notifications issued by the Ministry of Law & Justice, Muhammad Asghar Chaudhary, a retired federal secretary, is appointed as Member Technical-I and Raja Saad Sultan, currently serving as the Assistant Attorney General for Pakistan, is appointed as Member Technical-II in the Competition Appellate Tribunal (CAT). Their appointment is “on contract basis for a period of three years.”

The CAT is established under Section 43 of the Competition Act, 2010, and it consists of a chairperson and two technical members. As per Section 42 of the Act, any person aggrieved by order of the Commission comprising two or more members or of the Appellate Bench of the CCP may, within sixty days of communication of the order, prefer an appeal to the Competition Appellate Tribunal.

Currently, Mamoon Rashid, former Chief Justice, Lahore High Court, is its Chairman, whose term started on July 17, 2020 and ends on July 16, 2023. The positions of two technical members have been vacant since January 2020. The additional charge of the vacant post of Member Technical-I was entrusted to Nasir Masroor Ahmed, Chairman, Anti-Dumping Tribunal, Islamabad for a period of three months w.e.f. October 7, 2020 which expired on January 6, 2021. While the additional charge of the vacant post of Member Technical-II was entrusted to Ms. Samaira Nazir Siddiqui, Member, Anti-Dumping Tribunal, Islamabad, for a period of three months w.e.f. November 5, 2020.

Business community welcomes selection of judicial members in CAT, ATIR

Legal experts were of the view that the beneficiaries of a dysfunctional CAT were the cartels who adopted the usual tactics of challenging the CCP’s orders and halting the enquiries in the High Courts on different legal pretexts. The CCP’s current chairperson Rahat Kaunain Hassan, who also headed the CCP from 2010 to 2013, has intensified the enforcement functions.

Soon after her appointment as Chairperson in July 2020, Rahat kicked off some high profile enquiries in cement, wheat, poultry, milk, and sugar. While some high profile anti-cartel enquiries are in progress, the CCP passed an order against the sugar cartel slapping a penalty of Rs. 44 Billion on Pakistan Sugar Mills Association and its 82 member sugar mills. This was the highest ever penalty the anti-trust watchdog has ever imposed.

In a normal legal course, the CAT would have heard appeals filed by the aggrieved parties, since the Tribunal was non-functional, the respondents also filed suits under civil jurisdiction before Sindh High Court and writ petitions before the Lahore High Court. Both courts, through various interim orders have suspended the operation of the Commission’s order.

Another high profile enquiry that the CCP concluded in December 2020 was against the cement cartel. The enquiry recommended: “the Commission, in light of hardcore evidence of collusive behaviour and cartelization of cement industry, many consider initiating proceedings under Section 30 of the Act against the All Pakistan Cement Manufacturers Association (APCMA) and its member undertakings in terms of the findings of the enquiry report.”

However, the proceedings against the cartel could not move forward as the cement manufacturers obtained stay order from courts. In December 2020, the Sindh High Court (SHC) restrained the CCP by granting a second stay order from proceeding against cement manufacturers and issuing an order in case of alleged cartelization. It was the second stay order granted by the Sindh High Court as in the first stay order, the court restrained the CCP from proceeding against those cement manufacturers falling into the jurisdiction of the Southern region.

The CCP made public its findings about the Northern region and alleged that they possessed ‘hardcore evidence’ to prove that cement manufacturers earned an unjustified additional Rs40 billion profits by establishing cartels. Once the inquiry report was made public, a cement company in Lahore approached the Sindh High Court again and obtained another stay order despite the fact that neither the cause of action (the inspections) arose in Sindh nor the defendant (CCP) has any office in Sindh. As a result, CCP was constrained from issuing show cause notices and passing the final order in the matter.

Sources told Business Recorder that the CCP was in possession of ‘crucial evidence’ of cartelization by cement companies and APCMA. The delaying tactics adopted by cement manufacturers went against the public interest as they will continue paying uncompetitive prices for cement.

With a fully functional Competition Appellate Tribunal, it is expected that CCP’s cases will move forward towards conclusion to provide relief to the general public.

Copyright Business Recorder, 2021

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