Policy –Purpose

The policy of the state in implementing the PCA is to regulate or prohibit monopolies
to keep the market productive and efficient. The purpose behind the law is the
economic principle that liberalizing the market means keeping it competitive, hence
the state must implement measures that safeguard competitive conditions. This is
done pursuant to broader objective of attaining a more equitable distribution of
opportunities, income, and wealth, that promotes entrepreneurial spirit, encourages
private investments, facilitates technology development and transfer and enhances
resource productivity. The bottom line of these equitable opportunities is to raise the
quality of life for all citizens.

Standards
The general definition of a standard provides that it is a limit, definition or rule that
is approved and monitored by an agency as the minimum benchmark acceptable. In
this case, the standard for the PCC to regulate or prohibit monopolies is “when the
public interest so requires”

Delegation of powers (Analysis/Criticism)

Jurisprudence is rife with cases that discuss the issue of undue delegation of powers.
These cases provide that in order for delegation to be valid, the law must pass two
tests: (1) The law must be complete in itself, such that when it leaves the hands of the
legislature the only job for the administrative agency is to execute the law, and (2) It
must have sufficient standards that it defines legislative policy, marks its limits,
maps out its boundaries and specifies the public agency to apply it.

Applying these the PCA, I would argue that it’s provisions constitute an undue
delegation of power for failing to pass both tests.

As to the completeness test, several sections of the act make it clear that the law
confers too much discretionary power on the agency. Sec. 12(b) on the powers and
functions of the agency allows it to “determine thresholds for notification, determine
the requirements and procedures for notification, and upon exercise of its powers to
review, prohibit mergers and acquisitions that will substantially prevent, restrict, or
lessen competition in the relevant market”. Moreover, Sec. 16 states that the
Commission shall have the power to review mergers and acquisitions based on
factors deemed relevant by the Commission. These provisions grant the commission
unbridled power to decide the conditions that restrict competition in the market. As
a result, this an infringement on the role of the legislative, because the act is wanting
in providing essential terms that limit the delegated rule-making power of the
agency. While sec. 26 prevents an outline in determining what constitutes Anti-
competitive conduct, paragraph (b) gives the commission the power to determine the
impact of these agreements on competition, without providing guidelines on what is
considered an “actual or potentially adverse impact” on the market.

While the converse can be argued on the premise that the determination of these
terms fall within the expertise of the agency, this is debunked by sec.24 and 27 of the
same act, which provide guidelines on determining relevant markets and dominant
market positions. It is logically inconsistent to argue that the commission has the
expertise to determine thresholds for notification and decide factors for mergers and
acquisitions when the law later provides mandatory guidelines for other areas of the
commission’s functions. Hence, it can be said that the act is incomplete, fails to pass
the first test for valid delegation.

As to the sufficient standard test, the standard invoked by the commission is that it
may regulate or prohibit monopolies “when public interest so requires”. In the case
of Peleaz v Auditor General, the Supreme Court ruled that the phrase “when public
welfare so requires” was an insufficient standard that left too much discretion in the
hands of the president in changing the seat of government. This doctrine can be
applied to the PCA, given that the same standard is too broad and has not been
delimited by any other provision in the law.

In sum, the validity of the PCA can be questioned as an invalid delegation of

legislative power. While the policy behind the act is noble and necessary to maintain
economic stability and equality in the market, the provisions of the act must still
comply with the principles enshrined in the constitution. Given that the act fails to
pass both tests for valid delegation, it is open to criticisms of invalidity