Pakistan Legal Updates February, 2015 LAWS PROMULGATED Counter Terrorism Laws by Punjab Legislative Assembly In the wake of 12/16 happening in Peshawar, the Punjab legislative Assembly by taking swift action has promulgated several Ordinances in order to curb the menace of Terrorism. Through an amendment in the Maintenance of Public Order Ordinance, 1960 the denunciation of the government’s counter‐terrorism actions and giving statements in favor of terrorists would be considered offence. The Ordinance promulgated says: “A person shall not, by words spoken or written, use any formal forum to support terrorism or terrorists, or attempt to create sympathy for any terrorist or terrorist organization, or to oppose action of Pakistan army, air or naval force, police or Rangers against any terrorist or terrorist organization”. Another Ordinance bans glorification of terrorists and their outfits at any forum and in the media. It also regulates manufacturing and sale of uniforms of law‐enforcement agencies. The Arms Ordinance (Amendment) 2015 in a move to eliminate all illegal arms. The newly‐ promulgated law bans public display or carrying of any arms across the provincial boundaries. Important amendments have been made to Section 13 of the Punjab Arms Ordinance 1965 to ensure security for the citizens, Strict penalty including imprisonment 2‐14 years and fine have been imposed on those violating the law. Yet another Ordinance is about tenants of domestic and commercial establishments makes mandatory for the owners of rented houses, hotels, guest houses and hostels to share details about their tenants and guests with the law enforcement agencies. Non‐provision of this kind of information Page 1 of 9 Pakistan Legal Updates February, 2015 CASE LAW is made an offence. Levy of The Cess was first imposed vide Finance Act 2011 &Challenge to the on all natural gas consumers except domestic class Gas Infrastructure for the purposes of developing gas infrastructure Development Cess such as IP and TAPI gas‐pipelines. Thereafter, it was imposed vide an Ordinance in August 2014. The life of the Ordinance was extended vide a resolution by the National Assembly in January 2015 for four months. Immediately after it levy in 2011, it was challenged on the ground that Cess being in nature of fee, and not a tax, could not be levied through the Finance Act. The Challenge was upheld by the Supreme Court and the levy was set aside and Government was directed to reimburse the amount hitherto collected. The Government however re‐imposed the levy in 2014 with retrospective effect from 2011 and validated the collection made so far under the provisions of Finance act 2011. The re‐levy is now under challenge. ABSCO Lahore Office is representing scores of Mega Textile Mills before the LHC in the case. Initially we have hit the target by obtaining stay orders for our clients. The writ petitions are pending before Mr. Justice Syed Mansoor Al Shah. 2014 CLD 1 By issuing credit card, the financial institution allows the customer to enjoy/use the facility through merchants. Under the banking practice, there is an agreement between the financial institution and the merchant, whereby the merchant agrees to honour payments on behalf of the financial institution, The merchant acts on behalf of the financial institution as he accepts and honours the payments of transactions carried out through him. Thus, it is the duty of the merchant to compare and verify the card holderʹs Page 2 of 9 Pakistan Legal Updates February, 2015 2014 CLD 1 2014 C L D 132 2014 C L D 132 2014 C L D 292 signature when the credit card is presented to him for swiping and clearance at the time of the transaction. If the merchant fails or neglects in discharging his said duty, the liability of the transaction would fall on the financial institution. The principle is the same as that of a cheque, this is, when a cheque is presented to a banker, it is the primary and foremost duty of the banker to compare and verify the signature appearing on the cheque with that in his record. If the cheque is honoured by the banker, despite discrepancy in the signature, the banker shall be solely responsible for the consequences, and shall also be liable to reimburse the amount debited from customer’s account through such cheque. Defamation suit‐‐‐ Damages, quantum of‐‐‐While determining quantum of damages, the background, social status, position, life expectancy and the nature of the damage caused to plaintiff must be kept in mind. The loss arising out of injury to reputation of a person cannot be compensated in terms of money. Arbitration Act (X of 1940)‐‐‐‐Ss. 17 & 30‐‐‐Award challenged partially‐‐‐Effect‐‐‐Undisputed portion of award would be liable to be made rule of court straightaway, while objections regarding its disputed portion could be heard and decided according to law. Arbitration Act (X of 1940) ‐‐‐‐S. 30‐‐‐ Award, setting aside of‐‐‐ Scope—Well‐reasoned findings of Arbitrator would not call for interference by Court‐‐‐Court while deciding objections could neither act as a court of appeal nor reappraise evidence. Contention of the defendant was that the amount disbursed by the plaintiff House Building Finance Corporation in its favour was not a ʺfinance facilityʺ as the plaintiff House Building Finance Page 3 of 9 Pakistan Legal Updates February, 2015 2014 CLD 729 Corporation was not competent to lend money according to its mandate and said disbursement was in fact an investment made by the plaintiff in the business of the defendant and therefore no relationship of ʺcustomerʺ and ʺfinancial institutionʺ existed between the parties, hence the suit was not maintainable‐‐‐Held, that issuance of letter by the defendant to the plaintiff accepting terms of borrowing and disbursement, amounted to sanction of a finance facility covered under the Financial Institutions (Recovery of Finances) Ordinance, 2001‐‐‐ Word ʺinvestmentʺ in common parlance meant an expenditure to acquire property or assets to produce revenue or to contribute capital in the business carried by someone on profit or loss; whereas in the present case no such expenditure had been made by the plaintiff to acquire any asset/property; therefore such disbursement could not be termed as an ʺinvestmentʺ‐ Financial Institutions (Recovery of Finances) Ordinance 2001 ‐‐‐For the first time in the history of Banking Legislation of Pakistan, S. 9(3) of the Ordinance had put the plaintiff/financial institution and under S. 10(4) the defendant/customer, under identical statutory responsibilities to clearly and particularly plead and state the finances availed by a defendant, and repayments made by him with the dates thereof, as well as amounts of finance repayable by such a defendant and a defendant was also burdened with an additional responsibility to also specify the amounts disputed by him‐‐‐No such provision existed in any previous law and such was a new and distinctive addition in the Financial Institutions (Recovery of Finances) Ordinance 2001 wherein proceedings were of a summary nature‐‐‐ Such provisions were introduced especially and clearly with the view that the dispute of accounts Page 4 of 9 Pakistan Legal Updates February, 2015 should come before the Banking Court straightway through pleadings of the parties, so that the dispute could be resolved in a summary manner, without going through the lengthy procedure of evidence‐‐‐ Plaintiff/financial institution was obligated under S.9(2) of the Ordinance to file relevant documents and statement of accounts along with the plaint in support of its claim and the defendant/customer was obliged under S.10(5) of the Ordinance to file all such documents along with its application for leave to defend, which in the defendantʹs opinion supported the substantial questions of law or fact raised by the defendant‐‐‐After examination of such contents of plaint, and the application of leave to defend, discretion vested with the Banking Court to either allow the defendant to defend the suit or reject the application for leave to defend‐‐‐ Defendant, in order to succeed shall have to show that the application for leave to defend was compliant with all mandatory requirements of S.10 of the Ordinance, and likewise the plaintiff/financial institution shall have to show, even if leave to defend was refused to the defendant, that the plaint was compliant with all mandatory requirements of S. 9 of the Ordinance, and that the suit was not barred by any law‐‐‐Requirements of S. 9 of the Financial Institutions (Recovery of Finances) Ordinance 2001, whatever they may be, and in whatever form, manner or context, were required to be fulfilled, as they were mandatory in nature and must be strictly construed and complied with, whether they suited the defendant or not‐‐‐Financial Institutions (Recovery of Finances) Ordinance, 2001 was a special law, and by virtue of S.4 thereof, its provisions overrode all other laws‐‐‐Sections 9 & 10 of the Ordinance required strict compliance, and non‐compliance therewith attracted consequences of rejection of application for leave to defend, along Page 5 of 9 Pakistan Legal Updates February, 2015 LEGAL NEWS Domestic Workers Union Launched in Pakistan Establishment of Military Courts Challenged with decree. Pakistan Workers Federation has formed the Domestic Workers’ Trade Union, the very first union of its kind in Pakistan. The Domestic Workers’ Trade Union was established under the ILO project, Promoting Gender Equality for Decent Employment (GE4DE), funded by the Canadian government. The project, which aims to improve women’s skills and employment by working with government, employers, workers and media, identified domestic work as a sector where many women were employed in the most vulnerable, unprotected conditions, completely outside the purview of labor laws. Domestic Workers’ Trade Union has been registered with the office of the Registrar Trade Unions, Lahore, under the provisions of the Punjab Industrial Relations, 2010. The union currently has 235 members out of which 225 are female domestic workers. PWF is now in the process of registering the union with the global International Domestic Workers’ Federation. Recognizing the importance of domestic work, the ILO Domestic Workers Convention, 2011 (No. 189), provides guidance and benchmarks to ensure decent work in the domestic work sector. To date, a total of 17 countries have ratified the convention. A three‐member bench, headed by Chief Justice Nasirul Mulk, will hear the petitions from Jan 28 onwards challenging the establishment of military courts for trial of offenders who are members of terrorist organizations based on religion and/or sectarian tilt. The main grounds of challenge are two‐fold: Article 175 (Mehram Ali Judgment: PLD 1998 SC 1445) and Basic Structure (borrowed from Indian jurisprudence) (unsuccessful challenge to 8th Amendment: Mahmood Khan Achakzai case: PLD Page 6 of 9 Pakistan Legal Updates February, 2015 1997 SC 426). In India they say that basic structure of the Constitution is “secularism, democracy, fundamental rights, federalism etc’. In Pakistan we need to define first the basic structure. In many cases it has been done and one of the elements (rather foremost) has been held to be Islam. Indian Supreme Court Cancels Mining Concessions en bloc raising a doomsday scenario for financial and industrial sectors OIC weighs legal action against French magazine Charlie Hebdo Further Article 10‐A is also important in the context of ‘Islamic due process and fair trial’. The Indian Supreme Court in September 2014 cancelled 214 of 218 coal block allocations made to various private companies since 1993, calling the process “fatally flawed, non‐transparent and arbitrary”. The decision follows a report from federal auditors in 2012, which found that India had lost roughly US $33bn due to coalfield rights being sold off cheaply. In addition, the Court has ordered the licence holders of the coal blocks that were in production must pay as a levy a 295 Rupees (approximately US $5) per metric ton of coal they have already extracted or will extract prior to the termination date of 31 March 2015. Banks, which have pumped in huge amounts to finance projects related to the coal blocks, have been left exposed. The judgement is said to “jeopardise the investments made in the sector” and “raise questions on sanctity of government policies impacting the investment climate”.Banks, public as well as private, have been left out on a limb. The State Bank of India admitted to an exposure of Rs 50,000 crore, while the Industrial Development Bank of India put its exposure at Rs 2,000 crore. The Organization of Islamic Cooperation (OIC) intends to take legal measures against the French magazine, Charlie Hebdo, for publishing blasphemous cartoons, Secretary General Iyad Madani told a local daily. “OIC is studying Europe Page 7 of 9 Pakistan Legal Updates February, 2015 French Court convicts three hate‐speech offenders creating anti‐gay hashtags on Twitter Inter Provincial Ministerial Group for Women Development constituted and French laws and other available procedures to be able to take legal action against Charlie Hebdo,” he said. “If French laws allow us to take legal procedures against Charlie Hebdo, OIC will not hesitate to prosecute the French magazine These cartoons have hurt the sentiments of Muslims across the world,” On 22nd January 2015, A criminal court in Paris convicted three people of hate crimes for tweeting homophobic messages on the social media site Twitter. The offenders received fines between 300 and 500 euros for inciting anti‐gay sentiments by creating hashtags with messages such as ʺletʹs burn the gays,ʺ and ʺthe gays must die.ʺ This is the first time a French court has convicted a Twitter user for discriminatory speech based on sexual orientation, Twitter has yet to comment on the case, but has shown support for the French initiative to end hate speech by removing hashtags with homophobic key words from the trending page and by providing user information to French officials An Inter Provincial Ministerial Group (IPMG) for Women Development has been constituted which would meet periodically to agree on key priorities for gender equality in line with international commitments. An official of Ministry of Law, Justice and Human Rights told APP that the ministry was working exclusively on protecting rights of women in the country. He said National Commission on Status of Women (NCSW) prepared a comprehensive road map titled, `The Way Forward’ defining goals, priorities and strategies for empowerment of women of Pakistan. NCSW redrafted Reproductive Healthcare and Rights Bill, 2014 which has been referred to Ministry of National Health Services, regulation and coordination for introducing in the parliament, he further stated. Federal Ombudsman Institutional Page 8 of 9 Pakistan Legal Updates February, 2015 Reforms Act, 2013 has been notified. Provincial CEDAW Implementation Committee has been revitalized/reconstituted to ensure the implementation of Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and to address the issues of women. Coordination with Provincial Women Development Departments is a continuous process on matter relating to protection and empowerment of women, he said The bills and policies of Women Empowerment Package, Domestic Violence (Prevention and Protection) Bill 2013, Hindu Marriage Bill and its summery were also submitted to Cabinet for further proceedings. The Christian Marriage (Amendment) Bill, Christian Divorce (Amendment) Bill, and a National Policy for Home Base Workers have also been worked out by the Ministry. Page 9 of 9