It is natural that the government's move to amend the Bangladesh Energy Regulatory Act 2003, to provide for the executive branch to bypass the energy regulator established by the legislation, has caused many a raised eyebrow. Energy is a sector where transparency should always be at a premium, and the government seems to have overlooked the need to explain its moves to the public. It was only on Monday (Nov. 28) that we learned the cabinet had given its approval for the amendment to empower the government to set fuel tariff on its own, i.e. by executive order, in certain 'special circumstances' - effectively bypassing the regulator, and its legislated process spread over 90 days, that it allows for scrutiny, feedback, and perhaps most generously, public hearings.
It's an ennobling idea, to involve citizens in the democratic process, for something that clearly has great bearing on their lives. The trouble is those who have actually bothered to participate in such processes - and the BERC is far from the only ones to have them, they are now in fact pretty widespread across government agencies - initiated by the government, have almost always reported back on the complete ignorance of their feedback and suggestions. The aggregate of such reviews has led to the generally popular perception that these public hearings were an eyewash, since the authorities hardly ever incorporated any of the feedback into what came of these sessions, and probably never meant to either.
That was the popular perception. Yet it is also true that BERC never increased the price or tariff in line with, say, one of the distributors' proposals. In the past, BERC has approved hiking the electricity price by 20 percent, despite a proposal to increase it by 66 percent at the wholesale level. Once a proposal suggested increasing the gas price by 117 percent, but BERC only allowed an increase of 23 percent. The regulator is also known to include various conditions while increasing the prices.
Now the question is whether the said amendment, that has now been passed as an ordinance with the president's signature, can be used to clip the BERC's wings. It is important to understand that either today or tomorrow, we would need to find some way around the BERC's 90-day process. But as the energy and BUET professor Dr M. Tamim has said, the monitoring powers BERC has in this sector will no longer be there after the law has been amended.
When asked if the amendment would indeed curtail the regulator's authority, the cabinet secretary told reporters that BERC would still set the tariffs in normal times, while the ministry will exercise the power in "special circumstances". As you might guess, there is already a considerable degree of confusion brewing over the definition of "special circumstances". When asked to explain, all the cabinet secretary could say was that we presently find ourselves in special circumstances, presumably in light of the war in Ukraine. Does that mean any war in Europe could potentially be passed off as special circumstances? We fail to be clear, thanks to the government never bothering to explain its manoeuvering. It may have found itself in a much happier place today, if only it had bothered to do so.
Having said that, it is equally preposterous to subscribe to some of the more extreme views that have been making the rounds on this - that it is meant to destroy the BERC, or counts as a strike against oversight and accountability. At the end of the day, the worth of any piece of legislation is always in its application. Even well-meaning laws can be abused, as we well know in Bangladesh. In the coming months, we shall have to see how the government, or the executive branch in particular, goes about using the new powers it has granted itself.
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