ISLAMABAD: The Islamabad High Court (IHC) dismissed the petitions of members of Pakistan Poultry Association (PPA) against the orders of the Competition Commission of Pakistan (CCP). The petitions have been pending before the IHC with stay for the last 10 years where huge fines were stuck due to stay.
The Federation had won the similar matter in the LHC pending for over a decade. The Commission in 2010 had ordered an inquiry into the conduct of the PPA and it also took into custody documents relating to meetings conducted by members of the PPA and decisions reached therein including fixing prices for products to be sold by members of the PPA.
On the basis of the Inquiry Report dated 08.07.2010, the Commission was satisfied that the PPA had entered into prohibited agreements in breach of Section 4 of the Competition Act. It thus proceeded against the PPA and imposed penalties on it.
The judgment authored by Justice Babar Sattar said petitions are liable to be dismissed for not being maintainable and held that the impugned show cause notices (SCNs) do not suffer from any jurisdictional defect. The petitioners have sought the IHC declaration that the Competition Act, 2010, the Competition Ordinance, 2010, the Competition Ordinance, 2009 and the Competition Ordinance, 2007 are all ultra vires the Constitution and devoid of legal authority having been promulgated by the Parliament that lacked the legislative competence to do so.
They also pleaded that the show cause notices issued to them on 26.10.2010 and 28.10.2010 suffer from jurisdictional defects and are liable to be set aside. There were two main questions before the IHC, did the Parliament have the legislative competence to promulgate competition laws, including the Competition Act, 2010, pursuant to which the impugned SCNs have been issued? Two, do the impugned SCNs suffer from any other jurisdictional defect that renders this petition maintainable?
Attorney General for Pakistan Khalid Javed Khan, who represented the federation and the Commission contended before the IHC that the Lahore High Court had already held the Competition Act intra vires the Constitution and the federation fully supported the opinion rendered by Justice Ayesha A Malik.
He submitted that the Parliament was competent to legislate on the subject of competition in view of Article 151 of the Constitution read together with item 58 of the Federal Legislative List. The judgment found that articles 18(b) and 151(1) and (2) read together with Article 141, 142 and Entry 58 of the Federal Legislative List identify Parliament as the competent legislature to promulgate a law to regulate trade, commerce and intercourse across provinces and within any part of Pakistan.
It further stated that the Competition Act is a law that applies fetters on the individual right to engage in trade and business in the interest of competition in order to provide for free trade, commerce and intercourse throughout Pakistan.
In view of such finding, there is no need to rely on any other item of the Federal Legislative List to find further support for Parliament's legislative competence to promulgate the Competition Act.
The Court also found that the impugned SCNs do not suffer from any jurisdictional defect on the basis that the inquiry report, in view of which the impugned SCNs have been issued, was issued in exercise of authority vested in the Commission under the Competition Commission Ordinance, 2010 and not under the Competition Act.
Copyright Business Recorder, 2021
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