Thursday, January 7, 2010

CCP Opposes Proposed Amendments

Staff Report KARACHI: Chairman, Competition Commission of Pakistan (CCP), Khalid Mirza Thursday has cautioned that certain amendments being proposed in Competition Law would distort the very spirit of this law.Mirza termed these amendments as being bogus and warned that if these changes are incorporated in the law they would be tantamount in disrupting the main purpose of the law, which was introduced to act against cartelization, abuse of dominant position and deceptive marketing practices. Talking to journalists at a workshop on “Competition Law and the Role of CCP in Promoting Competition”, Mirza expressed reluctance to pinpoint those who are adamant on introducing these amendments and left the job on journalists to identify those who are carrying on this task.He also expressed his dismay over non-implementation of the decision by the regulatory bodies to give 3 percent of total collected amount of fee they charge from their clients in each quarter of the year.“The decision has not been implemented so far, thus blocking the way for CCP to gain financial autonomy”, he said.About the inquiry into the sugar issue, Mirza said that next hearing would take place on January 25, 2010, however it is hard to predict when the final decision would be taken because notices have been issued to 25 to 30 sugar mills and only after hearing their point of view would CCP announce its decision.He, however, stated that there were prima facie indications of collusive behaviour of sugar mills in the preliminary report.About the ongoing dispute on cotton yarn, CCP chief said any issue concerning competition would be dealt by them however, so far no has approached the CCP.He said that the implementation of the Competition Ordinance in letter and spirit is essential for the country’s economic growth and prosperity of the people.“Given our cutting-edge law and its promise of both near and long-term benefits to business consumers and retail consumers, it is important that our law continues to be enforced otherwise everything that we have accomplished this far will be truly futile and our country’s economic productivity will continue to stagnate as it has for the past many years,” said Khalid Mirza.He said that CCP’s successes outshine all other competition agencies in the developing countries. “We have taken up several cases of cartels, abuse of dominant position and deceptive marketing practices in important sectors of the economy, i.e. sugar, cement, banks, cement companies, the largest refinery, the three stock exchanges, cellular companies, a leading business school, a Government sponsored trust, several leading newspapers, a professional association, PIA and two fertilizer companies held by an Army Trust.”He informed that the actions taken by CCP during its short period of existence are unmatched in any other jurisdiction. “No other competition agency in any country has taken such important steps as we have done in the past two years.”

NRO II: Constitutional Superfluity

By Yasser Latif Hamdani
Duniya ki tareekh gawah hai, adl bina jamhoor na hoga
History bears witness, there shall be no republic (democracy) without justice
-From Aitzaz Ahsan’s Poem “Kal, Aaj Aur Kal” - the anthem of Pakistan’s Lawyers’ Movement.
“I am for the Law. We wish for a republic of laws.” John Adams- one of the founding fathers of the United States of America.
”The first observation that I would like to make is this: You will no doubt agree with me that the first duty of a government is to maintain law and order, so that the life, property and religious beliefs of its subjects are fully protected by the State.” Mahomed Ali Jinnah- our Quaid-e-Azam.
The decision on NRO was a historic one. Based on the short order, however, a reasonable apprehension exists that by invoking articles 62-f and 227, the Court has effectively brought into play dormant Islam-inspired clauses which shall further strengthen rightwing in Pakistan. This apprehension is obviously not without merit. Articles 4, 8 and 25 – 8 and 25 being fundamental rights which according to constitutional theory are supreme- were much stronger clauses and the court did well to invoke these but this is where the court should have stopped. Ofcourse this is entirely a conjecture without the detailed judgment. That said the important thing is that the NRO has been reversed and it has strengthened democracy whether nay-sayers accept it or not. The people need to see that the system works and punishes crooks no matter how powerful they are. And there is no doubt that the Supreme Court should also take to task those holy cows that have run amok in the country but that will also happen in good time.
Still one must consider why it is that a certain section of the Pakistani liberal intelligentsia who I often agree with on most things has been up in arms against the judgment. I for one don’t understand why Asma Jahangir of all people is bringing up the issue of Islamic provisions, when the “Asma Jillani Case” which made her famous and which she makes a point to quote in her every television appearance made the Objectives Resolution the grundnorm of the Pakistani state, society and constitution? This a good a decade and a half before General Zia inserted a mutilated version of the same as the “substantive part” of the constitution of Pakistan under 2-A. Given that 62-f is General Zia’s doing but Article 227 was placed there by Zulfikar Ali Bhutto’s PPP through a unanimous vote on the Islamic constitution in 1973 that included NAP which considered itself the defender of left and secularism in Pakistan. It is unfortunate but true that the so called “Islamic Provisions” have been part and parcel of the Constitution of the Islamic Republic of Pakistan’s salient features thanks to the party in power.
So the way out is not ignoring certain sections of the constitution and crying foul that the judiciary has used one kind of law over the other (though it is no doubt upsetting to me) but to work to strengthen constitution and rule of law so that an elected legislature tomorrow may undo what has been done in the past. It certainly does not help that people like Dr. Ayesha Siddiqua have tried to reduce the issue to liberal and conservative divide and in her more recent column has had the audacity to argue that those applauding the judgment are all narrow nationalists who have it in for President Asif Ali Zardari. This after she failed to even articulate a single sentence when questioned about her article on a live TV show on Duniya TV.
Such sham arguments and shamelessness might win some people brownie points somewhere, but in the longer run it discredits forces of liberalism in Pakistan, especially when most liberals are not aligned with these few self appointed spokespersons for liberal thought. Only by treading the straight and narrow constitutional path – based on rule of law, equality of citizenship and the principle that justice is blind- will Pakistan one day emerge as a progressive democratic state. Remember the hold of religion on a democratic constitutional society can at best only be temporary for procedure and man-made constitutions have often trumped priests with a divine mission. So it shall be in Pakistan as well, for the final chapter of our history is not yet written.

NRO I: Void Ab Initio

The Supreme Court of Pakistan has declared the controversial National Reconciliation Ordinance (“NRO”) void ab initio. This is a historical development in our judicial history from a jurisprudential point of view.
1. Quoting the Indian precedent of Indira Nehru Gandhi v. Raj Narain the learned counsel- Pakistan’s finest in my view- Salman Akram Raja argued that there could be no “legislative judgment”. Indian Supreme Court had declared null and void a proposed constitutional amendment introduced by the prime minister that stopped the judiciary from adjudicating on the validity of elections. The prime minister wanted the executive branch to determine how elections were to be administered in India. This contention has been accepted by the Pakistan Supreme Court. Now there may never a legislative judgement and this would have profound jurisprudential consequences. We will do well now to extend this logic to other issues which need not be repeated here but which have been discussed on PTH to death.
2. The court has ruled that this ordinance has been held to be violative of Article 4 of the constitution :
Right of individuals to be dealt with in accordance with law, etc.
To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
In particular :-
no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
no person shall be compelled to do that which the law does not require him to do.
3. The NRO has been declared violative of Article 8
Laws inconsistent with or in derogation of fundamental rights to be void.
Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
The provisions of this Article shall not apply to :-
any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or
any of the
laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
other laws specified in Part I of the First Schedule;
and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.
Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in [8][Part II of the First Schedule] into conformity with the rights conferred by this Chapter:
Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months.
Explanation :- If in respect of any law [9][Majlis-e-Shoora (Parliament)] is the appropriate Legislature, such resolution shall be a resolution of the National Assembly.
The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.

4. NRO is violative of Article 25
Equality of citizens.
All citizens are equal before law and are entitled to equal protection of law.
There shall be no discrimination on the basis of sex alone.
Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
5. The NRO is violative of Article 62(f)
Qualifications for membership of Majlis-e-Shoora (Parliament).
A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless :-
(f) he is sagacious, righteous and non-profligate and honest and ameen;
6. NRO is violative of Article 63 1 (p)
Disqualifications for membership of Majlis-e-Shoora (Parliament).
(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if:- [(p) he has been convicted and sentenced to imprisonment for having absconded by a competent court under any law for the time being in force; or
7. NRO is violative of Article 175 of the constitution
175. Establishment and Jurisdiction of Courts.
(1) There shall be a Supreme Court of Pakistan, a High Court for each Province and such other courts as may be established by law.
(2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.
(3) The Judiciary shall be separated progressively from the Executive within [159] [fourteen] years from the commencing day.

8. NRO is violative of Article 227 of the constitution
227. Provisions relating to the Holy Qur’an and Sunnah.
(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.[242] [Explanation:- In the application of this clause to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect.]
(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.
(3) Nothing in this Part shall affect the personal laws of non- Muslim citizens or their status as citizens.
This judgement lays down and reaffirms the following:
1. Equality of citizenship is supreme.
2. No class of people can be elevated or protected from law which shall apply equally to every citizen. Every class regardless of religion, caste, status, financial status etc shall enjoy similar or no immunities.
3. The Parliament may not tread upon the jurisdiction of the judiciary through legislative judgements passed from within the legislature.
4. Any laws which are not in conformity with Quran and Sunnah are to be struck down provided such an act shall not affect Non-muslims’ rights as citizens.
Fundamentally – this historical judgment which shall be quoted as precedent for many years to come regardless of its political fallout. Will it create the fundamental balance required for the federation of Pakistan based on democratic norms and equality of citizenship is yet to be seen. What is to be the future of President Zardari? Of particular concern should be 63 1 (p) which can amount to a challenge despite presidential immunity. Article 41 of the constitution puts a stop to all proceedings calling into question the election of the president but what if President Zardari was ineligible to hold office in the first place (bear in mind that president is subject to articles 62 and 63).
There is some concern shown by international opinion makers and journalists that this verdict might cause instability and prove to be a boon for the Taliban. I am afraid this is a very naive view to take. The populace’s faith in constitutional democratic process can only weaken the Taliban and not strengthen them.
As we peel the layers of this onion we must also realize that an unprecedented new situation has been created. Pakistan’s steelframe i.e. its military and civil bureaucracy now find it expedient to support the constitutional parliamentary democratic form for its best suits them under the circumstances. The fears of a “coup” are misplaced and overstated. There will be no direct coup by the military. It will continue however to be a player in the grand scheme.

Restraint Of Use Of Government Arms And State Emblems- Intellectual Property Law

1. Section 103 of Trade Marks Ordinance, 2001 (hereinafter referred to as the ‘Ordinance’) deals with ‘Restraint of use of Government Arms and State emblems’,titles etc the relevant part of which reads as under:

Section 103: ‘Restraint of use of Government Arms and State emblems’—if a person, without due authority, uses in connection with any trade, business, calling or profession:

a) …………
b) …………

c) name, title and semblance of Quiad-i-Azam Muhamamd Ali Jinnah or Allama Dr. Muhamamd Iqbal or any variation thereof, or any device, emblem or title in such manner as to be calculated to lead to the belief that he is employed by, or supplies goods to, or is connected with, the Federal Government or any Provincial Government or any department or any such Government; or

d) ……………………………………

he may, at the suit of the Registrar or of any person who is authorized to sue such Arms, device, emblem or title, be restrained by injunction from continuing so to use the same:

…….emphasis added.

Sample Severability Clause For Commercial Agreements

If any provisions of this Agreement shall be held to contravene or be invalid under the laws of Pakistan, such contravention shall not invalidate the entire Agreement, but shall be construed as if not containing the particular provision or provisions held to be invalid in Pakistan, or jurisdiction and the right or obligations of the parties hereto shall be construed and enforced accordingly.

Gratuity - A General View

I received a query regarding the payment of gratuity under Pakistani Law. The relevant provision in Labor Law is Standing Order 12(6).

The employer has to either pay gratuity or contribute towards a provident fund or a pension fund. If there is a provident fund in existence where the employer pays equal to the contribution of the workman, there is no gratuity. The gratuity is equal to thirty days wages – gross- calculated on the basis of the last wages received if he is a fixed rate workman and/or the highest wage in the last twelve months if he is not, for every year of service.

For detailed opinion please contact me at

Tuesday, January 27, 2009

The proposed abolition of the Federal Shariat Court

Mutahidda Qaumi Movement i.e. MQM has introduced its constitutional amendment bill focusing predominantly on provincial autonomy which is- as the bill rightly points out in its statement of reasons and objectives- the cornerstone of the struggle that led to Pakistan. What is even more exciting is the proposed abolition of the Federal Shariat Court. This move shall restore to the Supreme Court of Pakistan its role as the arbiter in all matters and shall finally put FSC out of his misery.
As an alternative to the FSC, MQM proposes that Sharia related matters should be decided by a three judge bench both in the Supreme Court and the High Court out of which 2 judges should be Muslim. This step itself is revolutionary as it envisages a Non-Muslim judge presiding over sharia matters in toto. The FSC in contrast had 8 Muslim judges only. All in all this is an excellent piece of legislation that will go a long way in restoring to Pakistan some sanity.
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