ISLAMABAD: The Competition Commission of Pakistan (CCP) has accused the Ministry of Information Technology of encroaching upon its jurisdiction by taking over the role of assessing the competition behaviour in the telecommunication sector.
In a strong-worded policy note the antitrust watchdog sent to the federal government on November 10, the CCP has warned that any such attempt will be seen as ‘negation of roles’ assigned in the Constitution of Pakistan.
The CCP has urged the government to review the Telecom Policy, 2015 in relation to the Competition Rules for the telecom sector, as the competition issue was legally the sole jurisdiction of CCP under the Competition Act, 2010.
“The Telecom Policy 2015 may be reviewed with particular attention to the competition matters, to avoid any actual or potential conflict between the explicit mandate of Pakistan Telecommunication Authority (PTA) and jurisdiction of the CCP,” according to the note.
The policy note has also emphasised on the need for collaboration between CCP and PTA to avoid any actual or potential conflicts in the future, to ensure a healthy competition culture and a higher growth rate in the telecom sector and related markets in Pakistan.
The CCP is an autonomous quasi-judicial body responsible to implement the Competition Act. However, in recent years the antitrust watchdog has remained unable to exert itself.
The national competition authorities are best equipped to deal with behavioural issues, to ensure free competition and to protect consumers from anticompetitive practices by dominant undertakings and cartels by ex-post enforcement of competition law, said the CCP. It said that the sector regulators are better equipped to deal with structural matters as has been envisaged in their respective legislations.
The CCP has observed that the Clause 5.1 of the Telecom Policy 2015 formulated and issued by the Ministry of Information Technology provides for the making of competition rules exclusively for regulation of ex-post competition issues in the telecommunication sector by the PTA.
“The Competition Act being an Act of Parliament takes precedence over the Rules being framed by MoIT which is a subordinate legislation,” it added. Hence, the Competition Act shall prevail in the event of any conflict or overlap between the CCP’s mandate and that of any other regulatory or public body in Pakistan to the extent of matters covered under the Competition Act.
Empowering PTA to regulate competition related matters in the telecom sector will not only create redundant duplication of jurisdictions but also engender legal uncertainty for the telecom operators and consumers as well as wastage of state resources, warned the watchdog.
The policy note underscored that the framing of the Rules by the MoIT will result in the negation of the exclusive mandate, enforcement powers and purpose on which the whole edifice of competition regime was built by the Parliament through the Competition Act.
The Article 18 of the Constitution clearly marks the distinction between the regulation of any trade and profession through a licensing system, it added.
“In the presence of a national competition authority established through an Act of Parliament, any attempt to create overlaps between the mandate of PTA and jurisdiction of the Commission by making of Rules by MoIT shall be a negation of the roles distinctively demarcated in Article 18 of the Constitution”.
The CCP said that the PTA’s role as a sector regulator was limited to regulation of technical and economic issues in the telecom sector. Therefore, making of rules to regulate ex-post anticompetitive behaviours in the market is in conflict with the intent of the legislature.
Courtesy : Express Tribune