The Supreme Court turned down the request of cement manufacturers and other industries to grant a stay against the Competition Commission of Pakistan (CCP)’s orders.
A three-judge bench, headed by Justice Maqbool Baqir, on Wednesday heard appeals of various industries, mostly the cement producers, against the Lahore High Court (LHC) and the Islamabad High Court (IHC)’s verdicts.
Attorney General for Pakistan Khalid Jawed Khan opposed the pleas of the industries’ lawyers. He said the companies since 2009 were on stay. If the apex court grants stay then the finance system of the country would be disturbed, he added. He informed that whenever the CCP issues a notice to a company it gets a stay from the high courts.
The cement producers’ counsel argued that the Parliament does not have legislative competence to make law on competition. He said that the CCP after the 18th constitutional amendment is a provincial subject and not of the federation.
Justice Baqir directed the lawyers, representing the parties, to file written submissions before the next date (March 15). He said after their submissions, the court would hear them. He further said the Court would examine the IHC, the LHC, and the Sindh High Court (SHC)’s judgments.
Various industries including cement, oil and gas, energy, fertilisers, healthcare, education, telecom, in 2008 had invoked the LHC jurisdiction on the same grounds and were granted stay against the Commission’s notices over alleged prohibited agreements and deceptive marketing practices.
However, in October 2020, it dismissed petitions of almost all the industries who have challenged the vires of Competition Act, 2007, 2009, and 2010, and the legislative competence of the Parliament to legislate the Competition Act and the Ordinances.
The cement manufacturers and others have urged the apex court to set aside the LHC’s verdict in the matter while granting them a stay order against the Commission’s actions.
They further requested the apex court to decide a question of law whether the LHC has erred in failing to appreciate the substantial devolution of powers from the Federation to the Provinces via the 18th amendment to the Constitution and thereby, arrived at a conclusion, which is diametrically opposite to what the intention was of the legislature in enacting the said amendment.
The appellants also urged the top court to decide whether the LHC has erred in disregarding the deliberate deletion of the entry relating to legislation in respect of monopolies and competition in the Federal Legislative List (FLL) of the 1973 Constitution.
They submitted that there was no entry in the FLL, which allowed the parliament to enact law on the subject of competition, adding that the parliament did not have the power to make laws on matters which were not enumerated in the FLL as the residue power was vested with the provinces after the 18th Constitution Amendment.
They submitted that the FLL did not contain any entry on the subject of competition or monopolies or in any manner with reference to antitrust restrictions.
About the question of parallel judicial system in terms of Competition Appellate Tribunal (CAT), the LHC has observed that the establishment of administrative courts and tribunals for federal subjects was provided for in the FLL of the Constitution, which authorised parliament to establish administrative courts and tribunals in relation to federal subjects.
“We do not agree with the petitioners’ contentions that a parallel judicial system has been created or that administrative tribunals cannot be established for any other purpose other than Article 212 of the Constitution or that CAT is a ‘court’ under Article 175 of the Constitution,” the LHC verdict said.
