Pakistan Legal Updates September, 2015
PROPOSED LEGISLATION Law Reforms Amendment Bill 2015 Seeks to provide a right of appeal to a larger bench of SC where proceedings started in original jurisdiction of SC under Article 184 of the Constitution. It is considered that in such matters right of review is not sufficient for the ends of justice.
Pakistan Private Courier Services Regulatory Authority Bill 2015 Currently private courier services are running without and regulatory oversight. The need for an immediate regulatory mechanism was felt in the wake of terrorist activities including dispatch of contraband and other anti-state material. The law would provide an institutional mechanism for regulating the courier industry.
LAWS PROMULGATED The Publication of Laws of Pakistan (Regulation) Ordinance, 2015
The law was promulgated by the President for the Federation and Provinces under Article 144 of the Constitution on 20 April 2015 pursuant to the direction of the honorable Supreme Court.
‘laws of Pakistan’ have been defined as ‘any law passed under the Constitution of the Islamic Republic of Pakistan or by or under the authority of the Parliament or any of the provincial assemblies which is published in the Gazette of Pakistan or Gazette of any province and includes principal and subordinate legislation and any other statutory instrument which is published in the Gazette of Pakistan or of any province’
A ‘Laws of Pakistan Cell’ is established by the Ordinance to take care and implement the provisions of the Ordinance.
All publishers need to be registered with the Cell. Any publication by a non-registered publisher constitutes an offense.
Any disclaimer by the publisher shall not exempt him from the errors appearing in any law of Pakistan printed by him.
Any person can lodge a complaint with the Sessions Judge in case of violation of the provisions of the Ordinance
CASE LAW 2015 C L D 1377(SC) Contract Act 1872, section 171— Lien/right of banker to set off—Principle—Banker and customer—Even under the law which provided for recovery through coercive process such as land revenue, determination of amount due is an essential pre-requisite—Bank cannot be conferred with judicial powers for determination of amount due against its customer/borrower—Right/power to sell off is available only where amount claimed is due and is certain and determined by competent judicial forum.
2015 C L D 1377(SC) Civil Procedure Code, section 50– Decree, satisfaction of—Legal representatives—Extend of liability—Principle—Pecuniary obligation undertaken by deceased promisor would be binding on his legal representatives to the extent of estate of deceased promisor in their hand.
2015 C L D 1377(SC) Outstanding finance facility of father of plaintiffs, after his death was adjusted by Bank seeking to right of set off against funds of plaintiffs—Plaintiffs filed suit for recovery of money against Bank which was dismissed by Trial Court but High Court allowed appeal and decreed the suit in favour of plaintiffs—Plea raised by Bank was that Banking Court was proper forum for determination of dispute between the parties—Validity—Neither there was any adjudication of claim of Bank against principal debtor or against deceased, nor it was judicially determined as to whether plaintiffs had inherited any property from deceased—No question of Bank seeking to right to set off the alleged liability and/or seeking any recovery from plaintiffs without adjudication of such aspect of the matter—Neither there was any question pertaining to ‘finance’ as defined by S. 9, nor the question as to whether plaintiffs were ‘customers’ in the context of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, involved in the matter and no documents were executed by plaintiffs securing re-payment of alleged liability—Suit for recovery was filed by plaintiffs for the amount that was deducted out of their monies lying in their account, illegally and unauthorized and thus Banking Court had no jurisdiction in the matter as the same was constituted to adjudicate upon the matter pertaining to ‘finance’ between bank and its customer—No jurisdictional error having been found in the matter, Supreme Court declined interference in the judgment passed by High Court
2015 CLD 1331 (SC) Customs Act (IV of 1969)—S. 202(1)—Civil Procedure Code (V of 1908), S. 73(3)—Constitution of Pakistan, Art. 185(3)—Liquidation of company—Distribution of proceeds of sale—Preference to claim of secured creditors over claim of Government (i.e. customs authorities)—Properties of respondent-company were mortgaged with two banks—When the company was liquidated, its properties were put to auction, and the proceeds were paid to the Banks in partial settlement of their claim—Meanwhile customs authorities also passed an order-in-original against the company demanding certain unpaid duties and taxes on imported goods, however such demand could not be met as there was nothing left to pay customs authorities from the proceeds of sale—Contention of customs authorities that in terms of S. 73(3), C.P.C. and proviso to S. 202(1), of the Customs Act, 1969, Government dues (unpaid duties and taxes) would have precedence over the claims of the Banks—Validity—Properties of the company were mortgaged with the Banks considerably before any action was initiated against the company by customs authorities—Suits for recovery and sale of mortgaged properties filed by the Banks against the company were decreed (much) before the proviso to S.202(1), of the Customs Act, 1969, came into effect—Proviso to S. 202(1) of the Customs Act, 1969, was not made to apply retrospectively to cover the claim of the Government (i.e. customs authorities) to a time when the company had executed mortgages in favour of the Banks—Section 73(3), C.P.C. also did not assist the case of the customs authorities since it did not create any priority in the Federal Government against the rights of the Banks—Section 73, C.P.C. sets out the manner in which proceeds of sales in execution proceeding were to be distributed amongst decree-holders, and subsection (3) thereof stipulated that, “Nothing in this section affects any right of Government”—Said provision in itself did not give preferential right to the Government, but it merely stated that if the Government already had “any [preferential or prior] right” S. 73, C.P.C. would not affect the same—In the absence of a specific law that may have given preference to the claims of the Government at the relevant time, priority would depend on which encumbrance was earlier in time—However, where the claim of the Government was contemporaneous with any other claimant, the claim of the Government would prevail—In addition to the fact that the Banks had their claim earlier in time to the Government’s claim, the Banks were secured creditors as they held registered mortgages of the company’s immovable properties—Claim of the Government also did not charge the said mortgaged properties, which may have created a priority of claim over that of the mortgages (Banks)—Government (i.e. customs authorities) had no entitlement to any amount realized from the sale of the mortgaged properties—High Court thus had correctly disallowed the claim of the customs authorities with regard to the amounts realized from the sale of the mortgaged properties—Petition for leave to appeal was dismissed accordingly.
2015 CLD 1268 (SC) Civil Procedure Code (V of 1908), S. 48 & O. XXI, R. 11—Execution of decree—Second execution application—Ex parte money decree was passed on 201-1-1981, by Banking Court and first application for execution of decree was filed on 27-6-1983, subsequently another application was filed on 16-1-1989—First application was consigned to record as fresh application had been filed and second was dismissed on the ground that it was barred by time—Order passed by Banking Court was maintained by High Court—Validity—First execution application was not disposed of by judicial order, therefore, second execution application filed on 16-1-1989, should plausibly be treated as continuation thereof or ancillary thereto—For ascertaining legal status and effect of proceedings before court of law, it was the content and meaning of judicial orders about such proceedings that were determinative and not the description or name given to proceedings by a party thereto, therefore, pending execution proceedings, descriptions given to by decree holder were inconsequential—Subsequent execution application filed by decree holder was deemed to be pending before Executing Court to be decided on merits—Appeal was allowed.
LEGAL NEWS Establishment of Sindh Accountability Bureau under Process A draft law will very soon be filed in the Sindh Assembly which provides for the establishment of the Accountability Bureau for Sindh. If converted into law, this will bring third accountability bureau into existence, the prior being National Accountability Bureau and KPK Accountability Bureau.
PIL on Climate Change An individual farmer brought a public interest litigation before Lahore High Court complaining that the Federal Government had not been able to take steps to develop the required resilience to climate change as set out in the National Climate Policy and Framework, 2012. The petition asserted that the Policy recognized that climate change threats had led to major survival concerns for Pakistan, particularly in relation to the country’s water security, food security and energy security. Accepting the Petition, the Court ordered the establishment of a Climate Change Commission to monitor the effective implementation of the National Climate Policy and Framework, 2012. This case is the first time the Pakistani judiciary has taken up a matter relating to climate change. Whilst the commission’s role is to review policy implementation; the court’s order goes much further than mere administration. It has established the principles upon which the concept of “climate change justice” can be developed in our legal system. The door is open now for citizens to hold their elected representatives legally accountable for inaction on climate change.
LHC website Hacked The Lahore High Court website was hacked for the second time on 24 Sep. An Indian is said to have hacked the website last year. Now some unidentified person has done it putting the data/information of the high court at risk. The hacker left a message saying, “We are not damaging the data of the website but the index.” The unidentified hacker further said that the acts of “illegal control” of the website would be continued in future. “The hacking spree would be continued till freedom of Palestine.” However, the IT department of the court restored the website.
Prime Minister’s Farmer’s Package Challenged in IHC According to the daily Dawn, the prime minister’s recently announced Rs. 341 billion relief package for farmers was challenged in the Islamabad High Court on 23 September. The petition stated that the prime minister’s action violates Article 83 of the Constitution, which states that, “no expenditure from the Federal Consolidated Fund shall be deemed to be duly authorised unless it is specified in the schedule”, which is authenticated by the prime minister. In addition, it stated that the expenditure was not shown in the Federal Budget Statement 2015-2016 under Article 80, and that the National Assembly did not assent to any grant for the said purpose, under Article 82. The expenditure comes within the first four months of the 2015-2016 fiscal year, for which the National Assembly did not authorise any expenditure under Article 85. It added that the National Assembly has not yet approved any supplementary grant under Article 84. It claimed that while the prime minister announced that all four provinces would share part of the expenditure, there was no meeting of the Council of Common Interests or even the Cabinet Committee for Provincial Coordination. It said that the federal government could not bind any provincial government to participate in a federal concessionary scheme and use the provincial consolidated fund for such a purpose. The petitioner asked the court to restrain the federal government from spending the money without the due authentication, and to direct the government to put a supplementary budget statement before the National Assembly under Article 84.
Consumer Court Order awarding damages amounting to Rs. 33.963 million + Rs. 13.07 Million stayed The Lahore High Court has stayed a decision of a consumer court wherein former dean of Children’s Hospital was ordered to pay £212,267 (Rs33.963 million) and Rs13.07 million as damages to a man for causing permanent damage to liver of his new-born daughter in 2007.It was argued on behalf of the petitioner that the consumer court failed to take into consideration the legal aspects and the evidence of the parties on record. It was argued that the consumer court proceeded to examine the documents, which were even not tendered as evidence and no reliance could be placed on them. It was urged that the case involved technical medical issues relating to rare disease, diagnosis of which was phenomenally difficult even in countries with best healthcare systems.
Pakistan Legal Updates April, 2015
Offences in Respect of Banks (Special Courts) (Amendment) Bill 2015 This amendment seeks to insert a new section (10A). Under the proposed amendment, right to appeal against acquittal is granted to ‘any aggrieved person’. The Statement of Objects & Reasons states that no such right to appeal was available earlier.
Banks (Nationalization) (Amendment) Bill 2015 One of the proposed amendments confers on the Federal Government the right to appoint the President of a nationalized bank for as many terms as it consider in its discretion proper.
Hindu Marriages Bill 2015 This proposed law is an effort to provide a special form of marriage and its annulment for all persons professing Hindu persuasion. A large number of Hindu community particularly women does not have basic documentation to prove their marital status. They are also deprived of legal rights such as inheritance, remarriage, separation, adoption of children and annulment of marriage. The legislation seeks to institutionalize marriage and marriage related rights and confers jurisdiction on the Family Courts for the enforcement of conferred rights.
Services Tribunals (Amendment) Act 2014 Far reaching amendments have been made, kudos to the SC, in the Services Tribunal Act 1973. Including are power to review its judgment and orders, power to enforce its judgments and orders, appointment of administrative members having judicial experience, appointment of chairman who is or has been a judicial officer, granting of partial financial autonomy to the Tribunal, etc. This is a landmark instance of abandonment of powers by the Federal Government.
The Punjab Security Of Vulnerable Establishments Act 2015 This Act make arrangements for the security of vulnerable establishments inter alia to prevent acts of terrorism and other crimes, to obtain evidence by use of modern devices for investigation and prosecution of offences, and to deal with ancillary matters. “vulnerable establishment” is defined by section 2 of the Act as, ‘vulnerable establishment’ means a place of worship or any other religious place, sensitive office of the Government, Federal Government, non-governmental organization or foreign project, hospital, bank, money changer, financial institution, office of firm or company, industrial unit, educational institution, public park, private clinic, wedding hall, petrol or CNG station, jewelry shop, hotel, amusement or entertainment center, public transport terminal, special bazaar, commercial street, shop or shopping arcade notified under the Act.
CASE LAW P L D 2015 Supreme Court 145 —-Acquittal—’Falsus in uno, falsus in omnibus’—Scope & Applicability—Acquittal of co-accused persons may not by itself be sufficient to cast a cloud of doubt upon the veracity of the prosecution’s case against a convicted accused who was attributed fatal injuries to the deceased—Principle of “falsus in uno falsus in omnibus” was not applicable in Pakistan.
P L D 2015 Supreme Court 145 Criminal Trial —Claim of juvenility was based upon an assertion of fact and the onus to prove such fact was upon the accused person and if he failed to establish such fact through positive evidence then no advantage could be taken by him on such score and no benefit of any doubt regarding his age could be extended to him. Delayed claim of juvenility—Effect—Delayed claim of juvenility advanced by an accused person was to be visited with an adverse inference against him.
P L D 2015 Supreme Court 134 Section 9 of Defamation Ordinance, 2002, which dealt with remedies, could be split and segregated into two parts: the first was relatable to tendering of apology and statutory damages which the court could allow, for which no court fee was payable; second part of the section however starting with the expression “and in addition thereto, any special damage incurred that is proved by the plaintiff to the satisfaction of the court”, was an added right of the party, giving him a choice and option to claim special damages from the special forum or to resort to civil suit—Said remedy (of special damages) available to the person approaching the “Court” was in the nature of a civil suit and the claim shall attract the payment of ad valorem court fee
P L D 2015 Supreme Court 42 Defamation Ordinance—-S. 3—Civil Procedure Code (V of 1908), Ss. 19 & 20-Defamatory and libelous material published in a newspaper-Place of instituting suit for defamation-Option for plaintiff-Jurisdiction of courts in defamation cases lay both where the newspaper was published and where it was circulated, with the option to be used by the plaintiff– Cause of action needed to arise only in part in a jurisdiction for it to be an open option for the plaintiff—Significant readership and distribution of newspaper in a city qualified as ’cause of action’, in part at least.
2014 P T D 1861 Pakistan Water and Power Development Authority (WAPDA)—Independent entity not part of the Federal Government for purposes of Article 165 and 165-A of the Constitution—Although WAPDA’s affairs to some extent were controlled by the Government but for all practical purposes it was an independent entity authorized to carry out the business of utilization of water and power resources of the country and to generate electricity. Not exempted from levy of excise duty
LEGAL NEWS International Criminal Court elects first woman president As Judge Sang-Hyun Song (73) of South Korea stepped down earlier this month after six years in the job, he was replaced, by Judge Silvia Fernandez de Gurmendi (61) of Argentina. The election of Judge Fernandez “marks a significant step forward for the proper representation of women in the top ranks of international justice. Judge Fernandez’s two new female vice- presidents, also appointed for three-year terms, are Judge Joyce Aluoch of Kenya and Judge Kuniko Ozaki of Japan, while chief prosecutor Fatou Bensouda emerged from the shadow of her male predecessor, Luis Moreno-Ocampo, in 2012.
Online distribution practices under EU antitrust microscope
EU Competition Commissioner Margrethe Vestager announced that she will propose an inquiry into the E-commerce sector, focusing particularly on contractual restrictions and geo-blocking in the online sale of goods and digital content. The inquiry will begin on May 6 2015. The European Union is likely to send detailed requests for information across the supply chain to suppliers, e-tailers and price comparison or marketplace platforms. The inquiry will focus on cross-border restrictions on internet sales in distribution contracts. The commission wishes to examine whether suppliers impose – via contract or through other practices – obligations on e-tailers not to sell in other territories, or to impose penalties or offer inducements not to do so. A likely focus will be whether the supplier sets different prices on sales to different countries. The allegation may be that by charging a higher price for products destined for, for example, France rather than Germany, the supplier is discouraging sales to France. It may also examine whether, by technical means, customers are prevented from purchasing online across borders (eg, geo-blocking requirements). There may also be allegations that suppliers discourage online sales altogether – for example, by requiring that any sale be accompanied by a consultation in person or by creating unjustified hurdles to doing business online.
Lifting of ban on death penalty not violation of international laws: FO
Pakistan made it clear that lifting of moratorium on death sentence in the country is not in violation of any international human rights law. In her weekly press briefing, Foreign Office spokeswoman said the country had not been violating any international law or any human rights convention while carrying death sentences and it is in accordance with relevant laws and constitution of the country. While commenting on the recent statement issued by the European Union showing concern over execution of death penalties in Pakistan, the spokeswoman said, “Pakistan has its own constitution and legal system which contains death penalty within the parameters of international laws. The spokesperson said it was the fundamental right of the state to protect the lives of its people and the death penalties were being executed to protect the rights of its people.
ABA international head criticises Indian bar restrictions
The chair of the American Bar Association Section of International Law has criticised India for its restrictive attitude towards foreign lawyers. Marcelo Bombau, in an interview with Metropolitan Counsel, whilst noting that attitudes were softening, asked: ‘.. Why does corporate counsel at a US company have to turn to an attorney in India rather than the attorney with whom he or she is accustomed to working?.
Punjab suggests legal reforms in criminal justice system
The Punjab Prosecution Department has suggested far-reaching legal reforms to plug loopholes in the country’s criminal justice system that benefits the criminals and troubles the innocent. The suggestions have been sent to the Prime Minister’s Committee on Legal Reforms through the provincial government.
The suggestions include amendment to the CrPC to allow management of cases through issuance of a timetable for disposal of each case depending on the following factors — number of witnesses and other evidence to be produced during trial and early judgment. Attachment of magistrates with the sessions courts for recording of evidence of witnesses on the direction of the presiding judge. Keeping in view the power of prosecutors to review the cases, the power of taking cognizance by the magistrate should be abolished. The recommendation of the prosecutors should form the basis of trial. Sessions courts should take cognizance directly on the recommendation of the prosecutors. Amendment to sections 190 & 193 of CrPC should be made accordingly. The classification of cognizable and non-cognizable offences should be done away with and new classification of arrestable and non-arrestable offences should be introduced. In non-arrestable offences, no arrest should be made even where the accused is sent for trial unless he or she violates an order of the court regarding appearance. The power of arrest should be regulated closely to discourage arrests without sufficient evidence and where there are no exigent circumstances to justify an arrest.
Bilateral agreement: Pakistan, China to sign prisoner exchange treaty
Pakistan and China are likely to sign a prisoner-exchange treaty enabling both the countries to transfer convicted prisoners on a reciprocal basis. Pakistan has already sent the final draft of the treaty to the foreign affairs ministry. Around 425 to 450 Pakistani citizens are currently interned in various jails of China, Foreign Office Spokesperson said. “Most of them have been charged under offences like drug trafficking, human smuggling or visa overstay.” According to interior and foreign affairs ministry officials, seven Chinese citizens are serving sentences in Pakistani jails..