COMPETITION LAW AND POLICY IN PAKISTAN

COMPETITION LAW AND POLICY IN PAKISTAN* <!--[if gte mso 10]> COMPETITION LAW AND POLICY IN PAKISTAN* By Ikram ul Haq Qureshi, Director Law, Competition Commission of Pakistan. * Disclaimer.--The views expressed in this article are in personal capacity of the author and are general in nature, they neither bind the Competition Commission of Pakistan (the "CCP") nor are they a substitute for the Competition Ordinance, 2007 (the "Ordinance") or the relevant Rules, Regulations or decisions made thereunder. Undertakings are advised to seek their own legal advice to ensure compliance with the Ordinance. I. Introduction All laws have their merits and shortcomings, depending from which perspective it is being looked at - a glass half full or half empty! The Competition Ordinance, 2007, (the "Ordinance") is the particular case in point. To us who are part of the Competition Commission of Pakistan (CCP) the glass may appear half full whereas to the undertakings (subjected to the Ordinance) it may appear, half empty; nonetheless, from critics it is only fair to expect, that they will have, a non-partisan and a balanced approach in order to give a fair and objective view to the readers. Since, the Ordinance was placed on the statute book in November, 2007 through a constitutionally promulgated presidential Ordinance, it has received more than its fair share of criticism. Business leaders and other stakeholders in the country have, during the course of stakeholder dialogues organized by the Competition Commission of Pakistan (CCP), raised concerns on the need for the new competition regime in these trying economic times and its continuity; while legal advisers have raised challenges to the constitutional wires and other substantive and procedural aspects of the Ordinance. Perhaps, the article titled "the .Competition Ordinance, 2007--A Critical Analysis" published in July, 2008 CLD (the "Article") provides a good reference point to address recorded misgivings about the validity and purpose of the Ordinance. On a general note, it appears to us that such criticism and continued discounting of the government initiative to bring anti-trust to Pakistan arises out of a somewhat deep-rooted inclination to steer away from a holistic consideration of the law. This article attempts to undertake an objective assessment of some of the more critical objections on the basis of which the validity and purpose of the Ordinance is being challenged. Without indulging in jurisprudential or policy polemics, this article presents the reader another perspective of the Ordinance with a view to remove misconceptions, which continue to be generated by partisan commentators and vested interests. To what extent the law was debated and stakeholders consulted prior to' its promulgation, it can be stated with certainty that at least three consultative, stakeholders workshops were held which included participation by the business community, professional bodies as well as sector specific regulators. In this regard, it may be pertinent to add that when the stakeholders are the very entities with vested interests, to reach an objective criterion as a result of consultation with such "stakeholders" is not possible and perhaps not always advisable. It is important to highlight upfront that promulgation of laws cannot always await the ideal economic and legal environment. At times, the promulgation and the implementation of the laws help to create such an environment. The importance of anti-trust laws is being increasingly recognized across the globe, and there is no credible argument to deny Pakistan's entry into this area of government regulation. The US Supreme Court, over three decades ago, observed: "the anti-trust laws ... are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free enterprise system as the Bill of Rights is to the protection of our fundamental freedoms". [United States v. Topco Associates Inc., 405 US 596 at 610 (1972)] II. CCP versus Monopoly Control Authority With respect to the difference in the structure and status of the two organizations i.e. the former Monopoly Control Authority (the "Authority") under the MRTPO and its successor, the CCP, and matters relating to the difference in the appointment of their respective members and their terms of office, there are certain inaccuracies in the Article that need to be addressed: * It is stated that "the Government had appointed Members of the Authority for a term of five (5) years or, in case they were Government employees, for such time as they remained in service." By using the word "or" it seems to suggest that a Member who was a Government employee could hold office as long as he remained in service. Factually, the maximum period to hold office was five (5) years unless the Member resigned earlier or otherwise ceased to hold the office or being in service of Pakistan retired from such service; * To state that Members of the Authority could not be reappointed is incorrect. The law did not put any restriction to this effect and there have been Members who were reappointed under MRTPO; (para-7) * It needs to be pointed out that "a Member could not continue to be a Member of the Authority if he/she acquired any financial or other interest likely to prejudicially affect his functions as a Member of the Authority" under the MRTPO, such condition acted as a bar to the appointment of the Member or for him to continue the office. However, this condition is not akin to the power to terminate appointment or removal from office in terms of subsection (6) of section 14 under the Competition Ordinance, 2007 (the "Ordinance"). Also to preserve the independence of the Members or Chairman under the Ordinance, their removal by the Federal Government has been made subject to an inquiry by an impartial person or body of persons unless disqualification arises from judgment of a court or tribunal of competitive jurisdiction. III. Role of CCP: The CCP is established as a quasi judicial, quasi regulatory, law enforcement agency having a specialized umbrella jurisdiction over business enterprises across the various sectors of the State economy. It has the responsibility to ensure free competition in all spheres of commercial and economic activity and of endeavouring to prevent or eliminate anti-competitive behaviour in order to promote economic efficiency and to protect the rights of the consumers. Its regulatory function is narrow and restricted mainly to the processing or granting clearance to mergers or granting exemptions in respect of prohibited agreements. In drawing distinctions between the old and new law--apart from difference in status of the organization or the mode of appointment of members or their number, it needs to be appreciated that the dynamics of law have substantively changed: from a prescriptive approach, the thrust is now towards a more reasoned approach. Primarily, the differences can be summarized as follows: * As opposed to the MRTPO, the Ordinance does not seek to curb or reduce a dominant position; it prohibits the abuse of dominance. Although it provides a threshold in terms of market share beyond which there is a presumption of dominance, it does not rule out either dominance or abuse thereof at a level lower than the threshold for market share. * Unlike the MRTPO, which prohibited only "restrictive" trade practices resulting in unreasonable lessening of competition, the Ordinance prohibits any agreement that reduces competition within the relevant market whether or not it is "unreasonably restrictive". Furthermore, C.C.P. has power to grant block exemptions on grounds of efficiency or economic merit which did not exist earlier. * The Ordinance stipulates ex-ante merger control procedure i.e. mandatory procedure for review and prior clearance of mergers and acquisitions meeting the thresholds specified by the C.C.P. * Under the Ordinance, the requirement of registration of agreements has been done away with thus eliminating unnecessary transactions or compliance costs. * In order to create awareness regarding competition issues, C.C.P. has to engage itself in advocacy. Holding of open public hearings on matters affecting the state of competition in Pakistan and the issuance of non-binding opinions in this connection is another important aspect in which Ordinance differs from the MRTPO. * Unlike the MRTPO, the power of forcible entry, to search any premises and to grant leniency or a reprieve as may be merited under the Ordinance also considerably strengthens the investigative capacity of the C.C.P. * To preserve independence of the C.C.P., a certain degree of protection from arbitrary removal and security of tenure is given under the Ordinance. * Tied sources of funding to meet operational needs have been catered for without resort to subventions from the Federal Budget. The MRTPO had no such provision and the MCA was wholly dependant upon allocations from the Federal Budget. * Penalties under the Ordinance are much higher than those provided in the MRTPO to make implementation effective. Recovery powers are also not restricted to recovery as arrears of land revenue but it can now be through attachment, and appointment of receiver. * Orders of the MCA were appealable to the High Court. Under the Ordinance, an order by a single member or an authorized officer can be appealed before an Appellate Bench (consisting of at least two members). However, judicial redress can always be sought against the final orders of the C.C.P. Any person aggrieved by order of the C.C.P. comprising two or more Members or of the Appellate Bench can prefer an appeal to the Supreme Court. IV. Important aspects of the Ordinance: The four essential aspects of the Ordinance are:-- * Section 3. Prohibiting abuse of dominant position by undertaking(s) of all such anti-competitive practices that prevent, restrict, reduce or distort competition in the relevant market. Such practices include predatory pricing, tie-ins, boycotting and refusal to deal; * Section 4. Prohibiting agreements or practices that restrict free trading and competition between business entities. This includes in particular the repression of cartels; obtaining individual or block exemptions with respect to prohibited agreements provided, it can be established that, benefits of the transaction outweigh its adverse effect; * Section 10, Prohibiting deceptive marketing practices which aim at protecting consumer interests and enhance consumer welfare; and * Section 11. Supervising the mergers/acquisitions of undertaking(s), including some joint ventures. Mergers/ acquisitions that are considered to threaten the competitive process can be prohibited altogether, or approved subject to conditions as deemed appropriate under the circumstances. Importantly, it needs to be appreciated that essentially the above aspects are not "areas of regulation" as suggested in the Article and viewed generally. "Most competition agencies see their primary job as enforcing a set of economy vide prohibitions that, together with the other framework laws of general application, constitute a type of market constitution. Intervention, by the agency is focused on the maintenance of the competition as a process rather than on the survival of individual competitors". (*competition policy and regulated markets: experience of Turkey by Halilbaha Karabudak). Agencies such as the C.C.P., therefore, administer framework laws primarily intended to protect consumer interest from anti-competitive practices and behavior. However, it is with respect to mergers in particular, pre-merger notification and to a certain extent grant of exemption in regard to prohibited agreements that the C.C.P. has a greater regulatory role. As for the remaining: abuse of dominant position, prohibited agreements and deceptive marketing practices, the C.C.P. acts as a law enforcing agency. Both in respect of regulatory areas and for the enforcement of law C.C.P. has been vested with quasi judicial powers. (i) Abuse of Dominant Position: In the Article, it is correctly noted that under the Ordinance, dominance is not stated to be in terms of percentage alone but it is also deemed to exist if an undertaking or undertakings has/have the ability to behave to an appreciable extent independent of competitors, customers, consumers and suppliers. However, it is important to appreciate and emphasize that dominant share is not barred by the Ordinance; it is the abuse thereof that constitutes an offence. Undertakings can even hold 90% of the market share and they may be allowed to continue to do so, provided they do not abuse such dominance. Significantly, the behavioral aspect of an undertaking or undertakings having even less than 40% of share in the market may manifest dominance if such undertaking on its own or with other undertakings can act independent of its competitors, customers, consumers and suppliers and engage in practices which prevent, restrict, reduce or distort competition in the relevant market. The C.C.P. can take cognizance of the matter, only when such dominance is abused as envisaged under section 3 of the Ordinance. Presumption of dominance under the Ordinance has been kept at forty (40) per cent share in the relevant market, although globally it varies between 20% to 70%. UK, Poland and Denmark have a threshold similar to Pakistan i.e. 40%. (ii) Prohibited Agreements: In line with best international practice, and similar to EU and Singapore, the Ordinance prohibits all agreements (including vertical or horizontal agreements) that have the 'object' or 'effect' of preventing, restricting or reducing competition. Each of the terms, 'object' and 'effect' in section 4 of the Ordinance entails a distinct feature. Agreements having the object "of preventing, restricting or reducing competition" are those to which the per se rule applies e.g. agreements directly affecting price or output are considered inherently suspect. Since, the anti-competitive effect of such agreements is readily apparent they are made subject to per se treatment and there is no further need to probe into its effects. As for examining the anti-competitive effects of an agreement the "rule of reason" applies. The following observation of the C.C.P., in this regard, in a recent case (C.C.P's. order dated 10-4-2008 in a banking matter) would be helpful in understanding the context. "The term 'object' in section 4 does not refer to the subjective intention of the parties but to the objective meaning and purpose of the agreement. The words object or effect do not have a cumulative impact and are to be read as importing distinct meanings...The effects test requires an examination of the economic conditions prevailing in the relevant market and effects of the agreement on competition in the said market. It is in such eventuality that "appreciable effects" may have relevance. However, in EU and as well as in the US, competition authorities have taken the view that certain types of agreements (hardcore horizontal cartel agreements)--direct or indirect price fixing (as in the present case), limiting or controlling production, markets, or agreeing levels of output or dividing markets--by their very nature always restrict competition and so are prohibited per se regardless of effect, impact or the fact that very small undertakings are involved." In the banks' order, reliance has also been placed on Volkswagen AG vs Commission of Euro can Communities July 06, 2000 wherein the European Court of the first instance observed:-- "It is settled case-law that for the purpose of the application of Article 85(1) there is no need to take account of the actual effects of an agreement when it has as its object the prevention, restriction or distortion of competition within the common market. Consequently, it is not necessary to show actual anti-competitive effects where the anti-competitive object of the conduct in question is proved (see Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, 342, and C-219/95 P Ferriere Nord v. Commission [1997] ECR I-4411, paragraphs 12 to 14)" It is explicitly stated in subsection (3) of section 4 of the Ordinance that any agreement entered into in contravention of the provision in subsection (1) (of section 4 shall be 'void. Therefore, parties to such agreements cannot insist upon the performance of their obligations arising from such agreement. Besides declaration of such agreements as void under law, the C.C.P. is empowered to annul such an agreement or require the undertaking concerned to amend the agreement and not to repeat the prohibitions. Additionally, penalties can also be imposed under section 38 of the Ordinance. While the door to exemption is open, it has narrow scope and places the onus of proof on the parties to the agreement. Exemption can be granted with respect to prohibited agreements if it can be shown in terms of section 9 that:-- (a) it contributes to the efficiency or production; (b) It promotes technical or economic progress, while allowing consumers a fair share of the resulting benefit; or (c) the benefits clearly out weigh the adverse effects of absence or lessening of competition. Individual exemptions: sections 5 and 6.--(1) The C.C.P. may grant an exemption from section 4 with respect to a particular agreement, if a request for an exemption has been made to it by a party to the agreement and the agreement is one to which section 9 applies. In case of an individual exemption, exemption is granted to a particular agreement or multiple identical agreements pertaining to the same undertaking on application. (In granting an individual exemption, the C.C.P. has adopted the approach to entertain applications for template exemptions). Block exemption sections 7 and 8.--(1) If agreements falling within a particular category of agreements are, in the opinion of the C.C.P., likely to be agreements to which section 9 applies, the C.C.P. may make a block exemption order giving exemption to such agreements. A block exemption is granted to a sector or industry for a particular category of agreements. (iii) Deceptive Marketing Practices: The power given to the C.C.P. to prevent deceptive marketing practices is a natural corollary to its mandate and aims at protecting consumer interests and enhances consumer welfare. The consumer protection mandate is in line with the international trend followed by inter alia EU, US, Canada, Australia and New Zealand. Certain practices have been deemed to constitute deceptive marketing practices under law. Such practices are not easily avoidable by the consumers and are likely to cause substantial injury to them. It may be relevant to add that certain other laws may also cover such practices, however, they are narrow in scope, unlike the Ordinance. Also, enforcement provisions in the Ordinance are far more effective, as C.C.P. is empowered to impose significant penalties as opposed to nominal and non-deterring penalties under such other laws. It must also be appreciated that the Ordinance is by no means extraordinary in providing higher penalties as a deterrent against deceptive practices. As compared to Pakistan, EU and Canada enjoy much wider scope and authority with respect to curtailing deceptive market practices. (iv) Mergers: International experience shows that 80-85% mergers and acquisitions do not raise competition-- related concerns and are generally approved between 30 to 60 days. The remaining may take a longer time depending upon the complexity of issues involved in such cases. The Ordinance is consistent with international models for allowing due opportunity to CCP to evaluate such issues. It important here to note that out of over a hundred countries with Competition Law regimes, less than ten (10) have adopted a voluntary notification regime for merger clearance. Pakistan, India and EU are part of the overwhelming majority of jurisdictions which prescribe a mandatory notification regime. The substantive test to be applied in merger control is to see whether the merger/ acquisition substantially lessens competition. In Pakistan, similar to EU and India, clearance would only be required with respect to such mergers/acquisitions that cross certain thresholds prescribed with reference to turnover or the value of gross assets of the undertaking(s). Here, it is indeed critical to examine the term 'merger' as used under the Ordinance. Clearly, it has a much wider scope and meaning than it is generally understood, particularly in the context of company law. In terms of clause (h) of subsection (1) of section 2 of the Ordinance "merger" means: (a) Merger (b) Acquisition (c) Amalgamation (d) Combination or joining of two or more undertakings or part thereof into an existing undertaking (e) Combination or joining of two or more undertakings or part thereof to form a new undertaking It may be noted that the thresholds prescribed under Competition (Merger Control) Regulation, 2007, (the "CMCR") for seeking clearance may be rightly perceived as somewhat low but these are likely to be gradually raised over time based on experience and a better understanding of commercial exigencies. There has already been a modification in the initial thresholds prescribed, and these are expected to be revised from time to time. It may be helpful for readers to understand, the scheme envisaged under section 11 of the Ordinance: (i) Prohibition: Section 11(1) sets out the prohibition as to what kind of mergers are prohibited and what will constitute an offence. (ii) Procedure for obtaining prior Clearance: Section 11(2) stipulates mandatory prior clearance by C.C.P. to ensure that a merger may not result contravention of section 11(1). The procedure for obtaining this clearance details: (a) Filing of Application: Making of application by the parties intending to merge. (b) Threshold for parties/transaction subject to scrutiny: Applications are to be filed by parties meeting the thresholds stipulated in the regulations by C.C.P. (c) Determination of abuse of dominance: Determination by C.C.P. under section 115) with respect to the aspect of dominance in terms of section 3. Such determination is to be made within 30 days of the receipt of application. If no determination is made within 30 days as required under section 11(5), it shall mean C.C.P. does not have any objection to the intended merger. (d) Conclusion of first phase review: Only, where the determination of dominance under section 11(5) is in the affirmative, C.C.P. shall initiate second phase review. (e) Determination with regard to lessening Competition: During the second phase, C.C.P. shall review the intended merger to assess whether it substantially lessens competition by creating or strengthening a dominant position in the relevant market and shall give its decision on the proposed transaction. This would conclude the second phase review which has to be completed in 90 days and failure to render a decision within this period it shall be deemed that C.C.P. does not have any objection to the intended merger. (iii) Approval after determination: In the event, C.C.P. determines that the intended merger substantially lessens competition by creating or strengthening a dominant position, CCP may still approve the transaction provided the parties discharge the onus of proving and satisfying the criteria laid down in clauses (a) to (d) of subsection (10) of section 11. (iv) Powers of C.C.P.: Where the transaction under review does not qualify under the criteria specified in subsection (10) of section 11, C.C.P. can either prohibit the consummation of the transaction or approve it subject to conditions in terms of subsection (11) of section 11. (v) Merger without prior clearance: Subsection (12) of section 11 particularly envisages a situation where merger is consummated without seeking prior approval (as provided in subsection (1) to subsection (4) of section 11). It empowers C.C.P. to make appropriate orders under section 31 after giving an opportunity of hearing to the concerned parties. Section 31(d) in effect envisages the same procedure i.e. it can either authorize the merger (in the first phase) or if it has doubts regarding the merger, it shall open a second phase review. It is only upon completion of the second phase review that C.C.P. can undo or prohibit the merger. (vi) Powers of review: Approvals granted subject to conditions can be reviewed within one year from the date of granting such approval. (vii) Undoing of merger and modification power: If it is determined by C.C.P. that the approval was based on false or misleading information or the conditions imposed have not been complied with, C.C.P. can undo the merger or prescribe modifications to the original order. (v) Enforcing the Ordinance With respect to enforcement, it is alleged in the Article that C.C.P's. power of enforcement is "bolstered" by the fact that appeals lie first before the Appellate Bench (consisting of the two Members of the C.C.P.) and from the order of this Bench directly to the Supreme Court of Pakistan. The nexus of the forum of appeal with the enforcement aspect needs some explanation. It is perhaps relevant to point out that only an order passed by a single Member can be appealed before the CCP Bench and an appeal against an order passed by more than one Member shall lie before the Supreme Court of Pakistan. Again there are some factual inaccuracies in the Article in comparing the powers/functions of the C.C.P. with the Authority. It is not correct to state that the C.C.P. has retained powers such as the registration of undertakings, individuals and agreements and to conduct enquiries into the general economic conditions. C.C.P. does not have these instead of requiring regulation, it is now in the discretion of undertakings to decide and evaluate whether or not to apply for exemptions. The conducting of inquiries into general and economic conditions of the country is quite distinct from the C.C.P's. power to conduct the enquiries into the affairs of any undertaking necessary for the purposes of the Ordinance. With regard to the aspect of Advocacy, it may be useful to add that Advocacy is often referred to as 'compliance without enforcement', thus, competition advocacy and enforcement are mutually complimentary. The European Court of Justice has encouraged national competition authorities in the EU to critically examine legislation which frustrates competition objectives. "The role of the competition authority in issuing its specialized opinion is to make clear the benefits of preserving and promoting competition, and the costs of maintaining anti-competitive structures or measures." CCP advocacy responsibilities include: conducting studies for promoting competition, creating awareness about competition issues and creating a competition culture, holding of public hearing on matters affecting the country's commercial activities or state of Competition in Pakistan and giving as non binding opinion. While various enforcement provisions/tools are mentioned by the commentators, some of the more important enabling provisions are totally ignored and overlooked. For instance, apart from forcible entry, unlike the Authority, the C.C.P. has the Power to enter and search premises under section 34 of the Ordinance. Power to search includes the power to have full and free access to any place or documents, the power to impound and retain any document, or hard disk of computer. Another significant provision for enforcement is the Power to issue interim orders (although this power is similar to that of Authority's power under MRTPO), which is a natural corollary to effective implementation of the law. It may be noted that unlike India, where interim orders can be issued without giving notice, Ordinance requires giving the concerned undertaking an opportunity of hearing. These powers are similar to the powers enjoyed by other authorities e.g. SECP's powers under the Securities and Exchange Ordinance, 1969. Yet another important aspect, which seems to have been missed by the commentators, is that of leniency. The experience of Competition Authorities worldwide shows that leniency programs have greatly benefited in facilitating effective investigations in cartelization. Leniency provisions enable Competition Authorities to grant full immunity or reduction in penalties that would be otherwise imposed on a participant (generally in cartel cases) in consideration of volunteering disclosure of information. Leniency regulations have also been prescribed by the C.C.P. providing the procedure for requesting immunity and the grounds to be taken while granting reduction in financial penalty. Generally, factors that govern the reduction in penalty are: the stage at which the undertaking comes forward; the evidence already in the C.C.P's. possession; and the quality of the information provided by the undertaking. (vi) Imposing and recovering penalties The power to recover penalty has some how also been given a different colour in the Article. Section 38 read with section 40 of the Ordinance provides a clear picture regarding the powers of C.C.P. in the imposition and recovery of penalties and other amounts due to C.C.P. It may also be relevant to mention that non-payment of penalty or amount due does not automatically empower C.C.P. to proceed with the attachment of immovable or sale of any movable property, as is the perception given in the Article. For recovery purposes, the C.C.P. is first required to serve a notice to the concerned person and require such person to pay the said amount within the time period specified and it is only upon failure or default in payment within the prescribed time that C.C.P. may proceed in any of the ways envisaged under section 38 of the Ordinance. It is correct that the penalties (if) recovered by C.C.P. shall form part of the C.C.P. Fund in terms of section 20 of the Ordinance. However, the Fund does not consist of penalties alone (as appears to have been wrongly propagated). It shall also include: (a) allocations by the Government; (b) contributions from local and foreign donors or agencies with the approval of the Federal Government; (c) returns on investments and income from assets of the C.C.P.; (d) all other sums which may in any manner become payable or vested in the C.C.P.; and (e) a percentage of the fees and charges levied by other regulatory agencies in Pakistan as prescribed by the Federal Government. Moreover, penalties forming part of the C.C.P. Fund is very much in line with the laws administered by sector specific regulators such as SECP, NEPRA, OGRA or PTA etc. In any case, C.C.P. cannot spend more than its approved annual budget. Further, to ensure transparency and accountability, C.C.P. is required to maintain proper accounts which are be audited by the Auditor General of Pakistan or by a firm of Chartered Accountants nominated by the Auditor General of Pakistan. The annual report is to be published in the official gazette and to be laid before both the houses of Majlis-e-Shoora (Parliament). V. Promulgation of the Competition Ordinance, 2007: The Competition Ordinance, 2007 is neither the first nor the last Ordinance to be promulgated pursuant to the provisions of the Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"). Several other laws of utmost economic importance (for instance: the law relating to the development of alternative energy resources for power generation in the country) derive similar legitimacy. Contesting the legitimacy of the Ordinance by emphasizing the point that a law promulgated under Article 89 is temporary in nature unless put to the Parliament appears a hair splitting exercise. Moreover, knowing well that the Ordinance is not the only Presidential Ordinance that has attained permanency due to the peculiar constitutional dispensation in the country, it is lopsided to argue that such sanction somehow dilutes the mandate of the Ordinance and the content it embodies. The Ordinance must be appreciated or criticized on the basis of its content. Only that will encourage a healthy discourse on the way forward to develop appropriate competition law jurisprudence in Pakistan. Nevertheless, it would be appropriate to discuss the scope of legislation under Article 89 of the Constitution. The President may exercise the legislative powers given to him when: (i) the National Assembly is not in session; and (ii) the President is of the opinion that immediate is necessary in the circumstances of the case. It is not necessary for the exercise of the powers under this Article that an emergency must exist. The Constitutional test for legislation under Article 89 is that it is the President who is to be satisfied. The sole judge of existence of circumstances rendering it necessary to take immediate action is the President and it lies within his subjective satisfaction. This fundamental point seems to have been conveniently overlooked in disparaging the legitimacy of the Ordinance on the ground that it was not passed by the two houses Parliament. Furthermore, superior courts have already dealt with this issue that it is immaterial whether the session was imminent or whether it was in session just prior to the promulgation of the ordinance. Article 89 (1) of the Constitution is designed to cover all situations, where the National Assembly is not in session for any reason whatsoever, including a situation where it stands dissolved.* Furthermore, Constitutional validation and affirmation by virtue Of Article 270AAA has been conferred in terms of sub-article (3) thereof which reads as under: "All proclamations, President's orders, Ordinance, Chief of Army Staff Orders, laws, regulations, enactments, including amendments in the Constitution, notification, rules, orders or bye-laws in force immediately before the date on which the Proclamation of Emergency of the 3rd day of November, 2007 is revoked, shall continue in force until altered, repealed or amended by the competent authority." The contents of the Ordinance and its promulgation:-- As for the legislative power of the Federation, it may suffice to state that the Parliament has express powers under the Constitution by virtue of Article 151 to impose by law restrictions on the freedom of trade or commerce within any part of Pakistan. This power, read with entry 58 of the Fourth Schedule should remove any doubt whether the same falls within the ambit of Federal Legislative or the Concurrent Legislative List. The text of the relevant provisions is reproduced for ease of reference: Article 151(2) of the Constitution [Majlis-e-Shoora (Parliament)] may by law impose such restrictions on the freedom of trade, commerce or intercourse between one Province and another or within any part of Pakistan as may be required in the Public interest. Entry 58 of the (Federal) Legislative List Part-I of the Fourth Schedule to the Constitution: Matters which under the Constitution are within the legislative competence of [Majlis-e-Shoora (Parliament))) or relate to the Federation. It has been held by the Superior Courts that "none of the items in the list is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which fairly and reasonably are said to be comprehended in it". * * The State V. Zia-ur-Rehman PLD 1973 SC 49; Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151; Shireen Munir v. Government of Punjab PLD 1990 SC 295 and United Province v. Mst. Atiqa Begum and others AIR 1941 FC 16 ref. Circumventing the High Courts; Whether the right of appeal is before the Supreme Court or the High Court, it really does not make much difference from a federal agency's perspective. However, judicial reform efforts are towards removing appellate stages and somehow reducing judicial uncertainty caused by too many appellate stages, particularly when protracted litigation and overloaded dockets in higher courts have been recognized as hindrances to access to justice. The right of appeal directly to the Supreme Court serves the interest of litigants providing access to justice without going through protracted stages--which at best frustrate the aggrieved party and continue to be employed as a tool for avoiding or delaying administration of justice. It is not out of place to note that courts owe their creation to Article 175 of the Constitution, which provides that courts would not have any jurisdiction save as is or may be conferred on them by the Constitution or by or under any law. It is also a settled principle that wisdom of the legislature in enacting any law in any manner is not to be questioned by the courts. In terms of Article 175 (2) of the Constitution, the Legislature is competent to confer the jurisdiction and power on all courts. In this regard, it may be relevant to mention Entry 55 of the Federal Legislative List, the plain and ordinary meaning whereof is that: the powers on any other court can be conferred and restricted, except that the powers of the Supreme Court cannot be restricted. However, there is no bar on the Legislature to enlarge and or enhance the jurisdiction of the Supreme Court or to confer supplemental powers on it. With regard to the constitutional objection that all courts and tribunals must be under the administrative control and supervision of the High Court, attention is drawn to Mehram Ali's case wherein the Supreme Court itself has observed:-- "that the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution." Since the right of appeal under the Ordinance is envisaged before the Supreme Court in terms of section 42 of the Ordinance, therefore, prima facie there appears to be no issue of constitutional vires in this context. Without further going into the merits or constitutionality of the relevant provisions, the fact that needs to be appreciated is that as far as providing another forum before the final decision is concerned, the Ordinance envisages a hearing before the appellate bench. If parties are really looking at resolving the issue which is time and cost effective this provision certainly seeks to serve their interest. However, if the intention is to protract and delay proceedings one can offer many arguments in the garb of denial of rights. Overlapping Powers: The C.C.P. is not to be viewed as usurping the important functions of sector specific regulators. Consistent with its legislative mandate and also consistent with contemporary best practices extant in the civilized world, the C.C.P. role is confined to enhancing economic efficiency by acting as a bulwark against' anti-competitive practices in all sectors of the economy. The C.C.P. makes due efforts to consult relevant agencies. A Competition Consultative Group (CCG) has already been set up which comprises about 15 participants drawn primarily from sectors specific regulators, relevant professional bodies the private sectors and academics. This forum meets periodically to consider any concerns and suggestion and to get informal feed back and guidance for C.C.P's. on going activities and proposed initiatives. Most comforting factor is that despite initial reluctance by some of the regulators CCG has been able to achieve participation from all sector specific regulators, including State Bank of Pakistan. The C.C.P. and the State Bank of Pakistan Much has been said about exempting banks from the purview of the Ordinance as they have the State Bank of Pakistan as their regulator. It needs to be appreciated that granting exemption to the banking sector from the application of the Competition Ordinance would not be in sync with recognized practice and can well be regarded as counter-productive. Such an exemption can neither be termed "in the interest of the security of the State" nor can it be justified on grounds of "public interest", which are necessary conditions for invoking section 52 of the Ordinance. In fact, it would defeat the very objective of the Ordinance that is "to provide for free competition in all spheres of commercial and economic activity", sector such as the banking sector, which forms the jugular vein of all commercial and economic activity must, in the public interest, volunteer themselves to adopt globally accepted practices to curtail anti-competitive practices rather than advocate carve outs for whatever parochial reasons, if Pakistan is to stand up with head held high among the comity of civilized nations. The people of Pakistan certainly do not wish to repeat history by rendering the Ordinance ineffective as was achieved by vested interests in the case of its predecessor legislation. Paying heed to such retrogressive suggestions will nullify the initiative towards promoting competition in the economy. It is preposterous to argue on one hand that the competition law lacks legitimacy (simply became it was not enacted) through a puritanical constitutional process and on the other hand advocate at length that primary sectors of State economy be carved out of the competition regime in Pakistan, contrary to established practice in the civilized world. The Commission's power to attach bank accounts for recovery of amounts due to the Commission has also been blown out of proportion. The attachment of bank accounts is a natural corollary for effective recovery of penalties. This power is neither unique to C.C.P. nor does it in any way affect banking operations. It is interesting to note that in countries where such power is not granted to competition agencies the implementation of the law is rendered ineffective. There is some misconception that C.C.P's. powers in relation to recovery of penalties are intrusive upon the powers of the State Bank and potentially disruptive of the banking sector". The Commission can affect recovery of amounts due to it either by attachment, appointment of a receiver or as arrears of land revenue. Secondly, under section 38(1)(d) of the Ordinance, CCP may require the bank, receiver, district revenue officer or any person to deduct and pay the sum specified for purposes of recovering penalty. The rules for recovering the amounts due under this section require approval of Federal Government. This provision merely seeks to ensure effective recovery of penalty, and gives due protection to the banks, receiver, district revenue officer or any other undertaking that payment on their part shall constitute good and sufficient discharge of their liability to the extent of the sum paid. It is worth-mentioning here that out of the 110 countries which have competition legislation in place, only a handful exempt the banking sector from its purview. However, to rectify this anomaly, the International Competition Network (the international standard setting organization for enforcement of competition norms) in its Annual Conference in Bonn (June, 2005) strongly recommended "the elimination of exclusions from competition law for financial institutions." Also, the European Court of Justice has unequivocally held that like all other undertakings, "banks have to respect the EU competition rules." The C.C.P. and PTA It is importantly to note that the C.C.P's. scope and power to regulate anti-competitive practices is sector blind. The mere fact that a sector specific regulator is empowered in sonic way to regulate competition in that relevant sector does not create any conflict. The regulatory domains remain clearly distinct. For instance, lets consider the Significant Market Power (the "SMP") status in the telecom sector, i.e. 25% of the relevant market share under the Telecom Rules. In terms of theses rules, on SMP is subject to the following constraints which provide that: * Tariffs are subject to floors (and cap). Also tariffs cannot be changed without the approval of PTA; * SMPs are required to be non-discriminatory in providing services to retail customers and whole sale operators whereas non-SMPs can vary their rates and charges. * SMPs has are required to give call by call carrier choice to their customers. * Account separation requirement for every activity As per Rule 17 of the Telecom Rules, SMP can also be determined at a market share below 25% by PTA taking into account the operators ability to influence market conditions, its turnover relative to the size of the relevant market, its control of the means of access to customers, its access to financial resources and its experience in providing telecom services and product in the relevant market. None of these provisions are in conflict with the Ordinance. It is understandable that PTA has placed certain measures to prevent abuse by an entity enjoying SMP status but essentially these have an industry focus. On the other hand, C.C.P's. focus is really wider and extends beyond this. The 40% market share test for dominance under the Ordinance is not an absolute test. Dominance can be extant well below 40% so longest the undertaking or undertakings in question have the ability to behave to an appreciable extent independent of the competitors, customers, consumers and suppliers subsection (3) of section 3 enumerates the practices which are deemed to constitute the abuse of dominant position. None of these are addressed under the PTA laws. Moreover, violation of these constitutes an offence under the Ordinance. Therefore, a conflict with PTA on account of overlap of jurisdictions is simply not conceivable. C.C.P. and other sector specific regulators With reference to PEMRA, ensuring that open and fair competition is facilitated is not similar to providing "for free competition all spheres of commercial and economic activity to enhance economic efficiency and to protect consumers from anti-competitive behavior," Moreover, the context is different. PEMRA's obligations are in connection with grant of a license whereas C.C.P. has an over arching role focused on competition aspects which are neither sector specific nor time bound. C.C.P. and the Registrar of Trademarks vis-a-vis deceptive market practices. In Pakistan, recourse to other laws is available to redress deceptive marketing practices. Some of the laws which are in place to protect consumers in Pakistan include:-- * Pakistan Standards and Quality Control Authority Act * Drugs Act, 1976 * Pakistan Penal Code 1860 * West Pakistan Pure Food Ordinance, 1960 * Cantonments Pure Food Act, 1966 * Pakistan Hotels and Restaurants Act, 1976 * Patents Ordinance, 2000 * Copyright Ordinance, 1962 * Defamation Ordinance, 2002 * Registered Designs Ordinance, 2000 Trade Marks Ordinance, 2001 * Intellectual Property Organization of Pakistan, Ordinance, 2005 Some of these laws have a narrow and fairly limited scope. The ones of a wider import, like the intellectual property laws, do not embody any regulatory approach to competition issues. The alleged overlapping of jurisdictions is by no means, an extraordinary point or feature. For instance, companies regulated by the SECP are also subject to laws exclusively administered by the FBR, PTA, OGRA, PEMRA and the like. No overlapping of jurisdictions exists. Only a myopic view that the competition law is not a distinct field could give rise to such a point of view. Refusing to deal C.C.P., in its published frequently asked questions (FAQs), which are also available on its official website, has addressed this concern in an adequate manner. In general, businesses may decide for themselves with whom they wish to deal or do business. Whether or not refusal to deal shall constitute a breach of the Ordinance depends on the effect the refusal has or would have on competition in the relevant market and each of the practices enumerated in subsection (3) are to be read subject to subsection (2) of section 3 i.e. such practices must "prevent, restrict, reduce or distort competition in the relevant market". Therefore, refusal to deal per se does not constitute an offence and the onus to discharge is on the person who alleges such dealing. As a general guide, the more unique or special the product, and the more powerful the supplier, the more likely it is that competition will be affected. In their criticizing of the competition law, the commentators have drawn support from other jurisdictions and it is perhaps appropriate to examine as to why these jurisdictions are being picked in isolation. For instance, when reference is made to the Competition Law of India, it is perhaps important to inform the reader that it is one of the more depressed jurisdictions in the competition regime. The Competition. Law in India is only partly operative and the Competition Commission of India has not yet been fully constituted. Therefore, the actual impact of the Act will only be known after all its substantive provisions come into force. Moreover, Indian law has also met much criticism and has even been flagged as a "law with flaws". Removal of difficulty order With regard to Commission's order for removal of difficulty vis-a-vis exemptions it has been said that by virtue of such action attempt has been made to give the Ordinance retrospective effect in a manner contrary to well settled principles of statutory interpretation. It seems that in criticizing the law the focus is misplaced. The settled principles of interpretations should not be stretched so as to defeat the real intent. Since section 59 of the Ordinance does not specifically provide for saving of the agreements envisaged under section 4 of the Ordinance which might have been entered into, with or without the approval of, or under intimation to, the former Monopoly Control Authority, prior to and subsisting at the time of the promulgation of the Ordinance, in contravention with the said section 4 of the Ordinance. Though grant of exemptions, C.C.P. in fact removes difficulties. C.C.P. has allowed agreements entered into prior to the promulgation of the Ordinance, which will continue and be acted upon even after the promulgation of the Ordinance. Such agreements cannot be termed as passed and closed transactions. Exemptions are to be sought for acts to be performed after the promulgation of the Ordinance. The term "agreement" is defined to include practice or arrangement and if parties continue the arrangement/practice after the promulgation of the agreement it is difficult to conceive how such agreement would not be prohibited if provisions of section 4 are attracted; of course the violation can not be for past actions when the Ordinance was not in force but would co-relate to its time of commencement/promulgation. If the CCP were to allow such agreements to be exempt from the application of the Ordinance the likelihood is that for the next fifteen (15) to twenty (20) years, unscrupulous people will submit agreements claiming these were entered into prior to the promulgation of the Ordinance. Verification of such facts or contesting the same would open a Pandora's Box. It may be relevant to add, under section 5(4) and section 8(2) of the Ordinance an individual exemption and a block exemption order may provide for exemption to have effect from a date earlier than that on which the exemption is granted. Relevant Market The criteria to assess the relevant product market has evolved and refined over a period of more than a century. The law defines relevant market in the same manner as it is understood in the developed world. The oversees companies and MNEs should take comfort in this approach by C.C.P., in that the terms will have similar meanings as they have in the EU, USA or elsewhere. While interpreting these terms, various facts and circumstances are always taken into account for this reason definitions retain certain flexibility and cannot be defined in absolute terms. "A relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products' characteristics, their prices and their intended use." "The relevant geographic market comprises the area in which the undertakings concerned are involved in the supply and demand of products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because the conditions of competition are appreciably different in those areas". The relevant market within which to assess a given competition issue is therefore established by the combination of the product and geographic markets. Pre-merger thresholds Under Regulation 4(2) of CMCR (as amended vide S.R.O.1125(I)/2008 dated 30-10-2008) the merger parties are required to make application for clearance from the C.C.P. under subsection (2) of section 11, when: (a) the value of gross assets of the undertaking, excluding value of goodwill, is not less than three hundred million rupees and/or the combined value of the undertaking and the undertaking(s) the shares of which are proposed to be acquired or the undertakings being merged, is not less than one billion rupees; or (b) annual turnover of the undertaking in the preceding year is not less than five hundred million rupees and/or the combined turnover of the undertaking and the undertaking(s) the shares of which are proposed to be acquired or the undertakings being merged is not less than one billion rupees; or (c) the transaction relates to acquisition of shares or assets of the value of fifty million rupees or more; or (d) in case of acquisition of shares by an undertaking, if an acquirer acquires voting shares, which taken together with voting shares, if any ,held by the acquirer shall entitle the acquirer to more than 10% voting shares. The following transactions, however, have been exempted from filing pre-merger notification:-- (1) A transaction in which a holding company (whether incorporated in or outside Pakistan) increases its stake in its subsidiary or the subsidiaries thereof (whether incorporated in or outside Pakistan) increase their equity investment in each other; (2) shares acquired by succession or inheritance; (3) allotment of voting shares pursuant to a right issue; provided that the voting securities acquired do not increase, directly or indirectly, the acquiring person's per centum share of outstanding voting securities of the issue. While the above transactions may be exempt from pre-merger notification, these may still be subject to substantive review under the Ordinance, if so deemed appropriate by C.C.P. Importantly, undertakings meeting the thresholds are now required to give notice of their intention to proceed with the intended merger any time before consummation of such merger. Variation in penalty through executive action: It needs to be appreciated that C.C.P. on its own is not empowered to "vary the penalties" as suggested by some critics. The power to vary the rates and amount of penalties is subject to two requirements: i) it should be necessary in the public interest, and ii) it can only be done with the approval of the federal government. As regards the issue of about excessive delegation, there are two inbuilt checks (including the scope to vary penalties) provided in the Ordinance. When the parent legislation gives the mandate and prescribes parameters within the statute itself, the question of excessive delegation does not arise. Moreover, the power to vary does not necessarily mean power to increase, as variation can also be downward. Looking generally at judicial precedents in Pakistan, the likelihood for courts to interfere, and hold delegation of such nature as excessive is remote. Distinction between rules and regulations: To state that the distinction between the power to make rules and the power to make regulations is meaningless amounts to attributing redundancy to several provisions of the Ordinance; hence, going against the settled principle of interpretation of statutes. A careful reading of the law reveals the distinction between power to make rules and regulations. While in form, the former requires the approval of the Federal Government the latter, is within the discretion of C.C.P. alone. In substance, however, the difference is that law specifically provides when the rules are required to be made. In particular, there are seven (7) instances e.g. (i) prescribing qualifications and experience for Members; (ii) prescribing the procedure for conducting an inquiry against a member or the Chairman; (iii) prescribing the percentage levy to be recovered from fees and charges accruing to sector specific regulatory agencies, (iv) procedure for conducting inquiries to determine whether exercise of power by an investigating officer was excessive or vexatious; (v) making rules regulating the procedure for recovery of penalties; (vi) rules pertaining to filing of appeals; and (vii) rules for seeking extension in the period for which an exemption is granted. This feature too is not unique to C.C.P. Several other regulatory bodies have the power to make regulations in specified areas while certain reserved matters are required to be addressed through rules framed and notified by the Federal Government. It needs to be appreciated that rule-making has been restricted to only those aspects where either there is a possibility of conflict of interest on the part of C.C.P. or its members, or where a balancing act is required to check that the C.C.P. does not abuse its power. Apart from these aspects; regulations can be made by CCP with respect to all other, essentially procedural, aspects--after all it must also exercise its autonomy! Forcible Entry: Like various other jurisdictions such as UK, Singapore, Canada and South Africa, power of forcible entry without warrant has been kept in the Ordinance in view of its effectiveness. The law provides an inbuilt mechanism of how this power is to be exercised. First, the officer to enter and search premises must be authorized by C.C.P. Next, if the undertaking refuses to allow C.C.P. to exercise the power, without 'reasonable cause', a deliberation process is provided. The investigating officer is required to obtain a written order signed by two members of CCP, before entering the premises by force. The power to summon, search, forcibly enter any place or order production of records etc., are similar to those enjoyed by SECP; hence, there is nothing exceptional under municipal law about such powers being conferred upon C.C.P. This is also in line with global practice in the enforcement of competition norms. Conclusion: (a) There appears to be no merit in the alleged constitutional infirmities in the Ordinance which have been refuted fairly conclusively on the basis of applicable constitutional provisions and established practices and precedent. There are plausible and convincing arguments to counter these challenges which are in any case, up before the superior courts, and pending adjudication. The purpose of responding to these challenges here is to provide an alternate view. (b) Regarding the concern whether EU competition legislation is an appropriate model for Pakistan. This issue has also been discussed in a recent judgment re: The Institute of Chartered Accountants of Pakistan matter decided by the Appellate Bench of the Commission. The Bench has observed that,. "It needs to be appreciated that Competition Law pertains to behavioral aspects. Whether we are in EU, US, UK or Pakistan, individual motivations or incentives vis-a-vis anticompetitive practices inherently remain the same. No case has been made out by the Appellant as to why EU or US competition jurisprudence which are the recognized worldwide as the front runners in the area of competition, do not serve as appropriate guideposts for Pakistan." Besides, there seems to be an underlying arrogance or ignorance in repeatedly asserting that we are different from the rest of humanity. (c) Should the Ordinance be modified in light of lessons learnt from enforcement of competition laws in other countries? In this regard, the celebrated competition law expert, Richard Allen Posner, is often quoted, albeit inaccurately, to support some of the criticisms against the Ordinance. Judge Posner has written prolifically--about 40 books in all. The views quoted are from his earlier writings with respect to the prevailing state of anti-trust enforcement. Ample support may be found in his later writings for the prevailing regime. It is often said that change is growth and, it appears Posner too believed in it. For this reason, in his book Antitrust Law, 2001 edition, he noted, that "Much of antitrust law in 1976 was an intellectual disgrace. Today, antitrust law is a body of economically rational principles largely though not entirely congruent with the principles set forth in the first edition". One, therefore, needs to take a holistic approach. In any event, individuals may have different views but there is certain wisdom that prevails today in respect of competition policy and regulation, which the Ordinance embodies to a great extent in letter and spirit. (d) An erroneous impression of conflicting regulatory approaches is being presented. It is argued that the entities that are already within the purview of a regulatory authority responsible for ensuring free competition and restraining deceptive market practices be excluded from the purview of the Ordinance. The over emphasis on overlapping of laws has hardly any merit. It is out of sync with established practice across the globe to exclude sectors falling within the purview of sector specific regulators from the purview of competition law. There is no doubt that competition agencies can and do, as may be necessary draw upon technical knowledge and expertise of sector specific regulators. However, exempting or excluding any sector is not the norm. Regulatory and law enforcement agencies are expected to supplement and compliment, either than exclude each other. (Certain milieu emerges in which sector specific regulators may become domain and turf oriented)? (e) Concern has also been expressed whether it is advisable to render prohibited agreements ipso facto void. The question is not what is advisable; it has more to do with appropriately enforcing the provision of law in its relevant context. Under subsection (3) of section 4, a prohibited agreement if entered into in contravention of subsection (1) of section 4 shall be void subsection (1) of section 4 envisages exemption and there established jurisprudence from where guidance can be drawn as to the nature and category of agreements which would fall in the prohibited category and not qualify for exemption. Importantly, in dealing with exemptions, the C.C.P. is granting template exemptions (where the product and. the nature of the agreement is the same). Irrespective of the number of agreements one template exemption may cover all. (f) The so-called opaque terms "such as to behave to appreciable extent independently of competitors," "restrictive trading conditions," "refusing to deal" are well established concepts in competition law and policy that have been judicially scrutinized and interpreted. In practical application there is very little ambiguity in these terms. Since law is in continuous process of evolution, we should attempt to go along these lines. The dynamics of competition law are such that not everything can be fixed and rigidly defined nor it is desirable to do so. (g) As regards merger thresholds, the practice in most jurisdictions, introducing a mandatory merger notification regime, is to keep these thresholds rather low in the first instance which are then, with the benefit of actual experience, revised and adjusted as appropriate. This is precisely the approach that has been adopted in Pakistan, and as we traverse the learning curve acquiring through experience a more pragmatic assessment of what thresholds should be allowed--possibly even sector or sub-sector specific--to rationally proceed to make necessary adjustments in the prescribed thresholds. (h) The option of adopting voluntary regime over mandatory regime would be retrogressive. Why should we not remain part of the progressive overwhelming majority? The list of countries having compulsory notification includes Argentina, Brazil, South Korea, Canada, France, Germany, Israel, Japan, South Africa, EU and US. Even the UK is in the process of moving to a fully mandatory regime from its current quasi-voluntary regime. Since compulsory notification brings in greater certainty and reduces business risks associated with combining, most countries in the world have opted for compulsory notification. Mandatory regimes are more effective in preventing anti-competitive concentration/merger/takeover as it is almost impossible to undo a merger once it has been implemented; reverting to voluntary regime, therefore, is not a pragmatic option. There is a misconceived notion or bias that promulgation of the Ordinance was not done with due process. First, this is not really true. Second, constructive criticism should be the preferred choice in order to strengthen the competition regime in Pakistan, rather than aiming to unravel the achievements and progresses made to date. Legislation by itself does not achieve anything unless there is both will and good will for its effective implementation!