Thursday, July 28, 2011

Harmonious construction of statutes

1.      Kamaluddin Qureshi v. Ali International Co. 2009 C L D 784
Discussion in para 10
While interpreting the statutes an interpretation leading to conflicting judgments is to be avoided as held in Hafiz Abdul Waheed v. Mrs. Asrna Jehangir and another PLD 2004 SC 219. The intention of the law maker is always gathered by reading the statutes as a whole and meanings are given to each and every word of the whole statute by adopting a harmonious construction. In this regard, the principles for interpretation have been settled by this Court in the cases of Messrs Mehboob Industries Ltd. v. Pakistan Industrial Credit and Investment Corporation Ltd. 1988 CLC 866, Shahid Nabi Malik and another v. Chief Election Commissioner and 7 others PLD 1997 SC 32, M. Aslam Khaki v. Muhammad Hashim PLD 2000 SC 225, Mysore Minerals Limited v. Commissioner of Income Tax 2000 PTD 1486, Hafeezullah v. Abdul Latif PLD 2002 Kar: 457, Hafiz Abdul Waheed v. Mrs. Asma Jehangir PLD 2004 SC 219, 7afar All Khan and another v. Government of N.W.F.-P through Chief Secretary and others PLD 2004 Peshawar 263, D. G. Khan Cement Company Limited and others v. Federation of Pakistan and others 2004 SCMR 456, Muhammad Abbas Gujjar v. District Returning Officer/District Judge Sheikhupura and 2 others 2004 CLC 1559, Shoukat Baig v. Shahid Jamil PLD 2005 SC 530.

Monday, July 25, 2011

Debt recovery law faces due-process challenge in Pakistan

By Yasser Latif Hamdani

B.N. Rau, Constitutional Adviser to the Constituent Assembly that was drafting the Constitution of India (“the Indian Constitution”), travelled to the U.S.A, where he met U.S. Supreme Court Justice Felix Frankfurter. The latter advised him against including the phrase ‘due process’ in the Indian Constitution, and hence, in 1949, the phrase was not included in the text of the Indian Constitution. Indian courts, however, repeatedly located ‘due process’ in Article 14 of the Indian Constitution instead. One could, without exaggeration, describe the Pakistani legal tradition as India-lite (with a flavour of Islam). The Constitutions of 1956, 1962, and 1973 all avoided the use of the term ‘due process’ in keeping with the Indian tradition. In 2010, when Pakistan’s Parliament passed the Eighteenth Amendment to the Pakistan’s Constitution, a new article - Article 10-A - was introduced. It reads:

Article 10-A: For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to fair trial and due process.”

Read more here.

Friday, July 22, 2011

Jinnah as a lawyer

This is a wonderful two part series by an Indian law network website on the life and career of Mahomed Ali Jinnah.
Part 1: "No man is more adroit in presenting his case"
Part 2: "A brilliant advocate, man of unimpeachable integrity"
Mohammad Ali Jinnah evokes strong responses in South Asia, and has been cast in a multitude of roles depending on which side of the political line he is viewed from - a master negotiator, a charismatic leader, a cunning politician, a secular liberal, and a conservative reactionary. Few, however, see him as a lawyer, his primary professional training that helped launch his career in public life and shaped both, his political career, and his ideological vision.

Lawyers of course, overwhelmingly dominate the galaxy of political leaders in colonial India. This was partly structural. Professional and middle classes have always played a significant role in republican movements. In British India, law, unlike medicine or engineering, was the only profession that could be practiced without being employed by the colonial government. Jinnah is unique in being amongst the handful of lawyers who became equally successful in both their fields.

Monday, July 18, 2011

Mental Health Ordinance 2001


·        Replaces Lunacy Act 1912
o   A more sensitive law
o   Sensitive treatment of mental illness – omission of words like “idiot” or broad generalizations
o   Larger role for qualified professionals such as psychiatrists to determine mental illness and scope of mental illness
·        The need for regulation
o   Property/Estate Management
o   Management of the patient
·        Health a provincial subject after the 18th Amendment
·        Mental Health Ordinance creates
o   a Mental Health Authority
o   Board of visitors
o   Court of protection
·        Confusion around the Mental health in terms of jurisdiction


Voluntary treatment: Any person suffering from a mental illness who seeks treatment voluntarily or whose relatives bring him/her for treatment or if a doctor has referred him/her for treatment and the person with mental illness consents to treatment will be examined by a psychiatrist and given appropriate treatment or recommendations. Assessment and/or treatment will be administered only after receiving informed written consent from the person with mental illness, or if it is a minor then by the guardian, or if an adult who by virtue of his mental state is not able to give consent, then by his/her spouse or nearest relative. The person giving consent may withdraw his/her consent for treatment at any time.

Israel's Boycott Law "Constitutional

Crossposted from Haaretz

This week the Knesset passed a welcome law: the Boycott Law. This law makes it possible to bring to court anyone who calls for an economic, academic or cultural boycott of the State of Israel, including Judea and Samaria, and sue them for damages.
If imposing a boycott is a means of expression, the Boycott Law does indeed restrict it, but according to The Basic Law on Human Dignity and Freedom, the law in which this right is enshrined, these basic freedoms are not to be affected except by means of a law with a worthy purpose and in a proportionate way.
Knesset - Michal Fattal - 18072011 Last week’s Knesset vote on the Boycott Law. The law is allowable, worthy and constitutional.
Photo by: Michal Fattal


Article 10-A of the Constitution, being a newly born piece of legislation, requires to be dilated upon with a progressive interpretative approach. I strictly refrain from involving myself in negative criticism. That's why I headed my essay with words "welcome to Article 10-A". The said Article is reproduced hereinbelow for onwards convenience:
"Article 10-A": For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to fair trial and due process".
To be concise, I  will limit the scope of my interpretation/ construction to the extent of "due process". Before giving my own views in black and white, I refer the case "Fouji Foundation and another vs. Shamim ur Rehman i.e. NLR 1984 SCJ 403", in which the doctrine of due process of law has been summarized as follows:--

US Case Law on Economic Classification

           Research by Yasser Latif Hamdani           

1.                   Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955)

Case Summary:

Provisions of an Oklahoma statute making it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances except upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist, are not invalid under the Due Process Clause of the Fourteenth Amendment. To subject opticians to this regulatory system while exempting all sellers of ready-to-wear glasses does not violate the Equal Protection Clause of the Fourteenth Amendment.

Thursday, July 14, 2011

Travel to Israel on Pakistani Passport: Law and Penalties

 By Yasser Latif Hamdani

I was asked to determine whether any penalties existed for a citizen and national of Pakistan carrying a Pakistani passport and travelling to Israel.   The short answer is yes: it is prohibited under law and subject to imprisonment of up to one (01) year or fine or both.   The detailed answer is as follows:

Monday, July 11, 2011

US Supreme Court on Presumptions and Due Process- some landmark cases

By Yasser Latif Hamdani
Principle: It is clearly within the domain of the legislative branch of government to establish presumptions and rules respecting burden of proof in litigation.
1.       Hawkins v. Bleakly, 243 U.S. 210 (1917)  US SUPREME COURT on pages 1-2 of the attached copy of the Judgment
The provisions in § 3 of the Iowa Workmen's Compensation Law, Laws of Iowa, 35 G.A. c. 147; Iowa Code Supp., 1913, § 2477m, requiring employees who reject the act to state by affidavit who, if anyone, requested or suggested that course, and providing that, where an employer or his agent has made such request or suggestion, the employee shall be conclusively presumed to have been unduly influenced and his rejection of the act shall be void. Held permissible regulation in aid of the general scheme of the act.
A workmen's compensation act which, prescribing the measure of compensation and the circumstances under which it is to be made, establishes a method of applying the measure to the facts of each case by due hearings before an administrative tribunal, whose action upon all fundamental and jurisdictional questions is subject to judicial review, is not open to objection upon the ground that it clothes the administrative body with an arbitrary and unbridled discretion in violation of due process of law.
Trial by jury is not one of the rights secured by the Fourteenth Amendment.

Sunday, July 10, 2011

Good faith and fair dealing in Lender’s Liability- Research

 By Yasser Latif Hamdani
Principle: A party to a contract breaches the implied covenant of good faith and fair dealing by interfering with or failing to cooperate with the plaintiff in the performance of the contract.

Case: Solfanelli v. Corestates Bank, MA, 203 F. 3d 197

Court: United States Court of Appeals, Third Circuit
Overview: The District Court concluded that Bank’s eleven month delay in selling the stock was commercially unreasonable. This was affirmed by the aforesaid court. It must be noted that in this case the debtor did not even request but rather withheld consent and yet the court ordered that the Bank’s delay was unreasonable.
Facts: The facts as far as they are relevant to our case here are that the plaintiff kept shares at collateral for debt. Unlike our case, the Bank sought the plaintiff’s consent to sell shares which was withheld. Yet the court ruled that the bank’s duty to conduct commercially reasonable sale was not waivable. 

Changing terms of contract after public tender

By Yasser Latif Hamdani
1.      Commission of the European Communities v Kingdom of Denmark European Court reports 1993 Page I-03353
      (Grand Chamber of the ECJ)
On Paras 34-45
34 In its reply the Commission based its claims on a series of provisions in the final version of the contract which, in its view, constituted amendments to the tender conditions and had some effect on prices. However, as was explained above (paragraphs 14 and 15), only the amendments relating to Condition 3, Clause 3, of the general conditions may be taken into consideration by the Court.

Thursday, July 7, 2011

Issues in federalism and constitutionalism

Laurence Tribe, American Constitutional Law Third Edition Volume One
Chapter 2 “Model I – The Model of Separated and Divided Powers
In order to grasp our federalism, one must focus not principally on abstract theories or examples from other national charters, but on the peculiar edifice of national and state governments erected by our Constitution- an edifice no less real by virtue of being implicit in the Constitution’s plan rather than explicit in its text. (Page 129)

The State cannot be unjustly enriched

A general equitable principle that a person should not profit at another's expense and therefore should make restitution for the reasonable value of any property, services, or other benefits that have been unfairly received and retained

Fibrosa v. Fairbairn (All ER p.135 H) “[A]ny civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasicontract or restitution.” 

Section 151 of the Contract Act 1872 (India and Pakistan)

Section 151 of the Contract Act 1872 says: “In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.”
1.       “Section 151 which refers to all kinds of bailment includes also pledges. Hence a pledge is also liable to the incidents of a bailment such as the duty to take requisite care” Thanwarin Noharsingh v. Darbarilal AIR 1952 Nagpur 8

2.       Bank claiming loss as pledged goods were damaged or destroyed due to natural decay while in custody of bank-…. Bank cannot disown liability 1998 …A clause in the pledge deed that the “pawnor shall be responsible for all losses, damages or deterioration of goods caused by theft, fire, rain, floods earthquake lighting, enemy action, international commotion or any other cause” does not exonerate the liability of the pawnee where goods were lost due to his negligence  because the clause provides him protection only when goods are lost due to causes beyond his control. 1998 (2) Guj LH 204

3.       Share certificates and bank transfer forms are goods.  Jamshed Naoroji Gamadia v. Maganlal Bankeylal AIR 1925 Bombay 314

Wednesday, July 6, 2011

Changing Contract terms after public tender

Crosspost from NECI

Can you change the terms of a contract awarded after a Request for Proposals (RFP) process, or should you issue a new RFP to cover the desired changes? Test yourself with this recent Canadian International Trade Tribunal (CITT) case.

On October 18, 2006, Public Works and Government Services Canada (PWGSC) issued an RFP for six “streams” of mobile wireless products and services. Stream 1 was “Wireless Cellular/Personal Communications Service (PCS), Personal Digital Assistants (PDAs), and Aircard products and associated services.” PWGSC intended to select two suppliers for Stream 1. The resulting contracts were to be valid for two years with options to extend the contracts.

Friday, July 1, 2011

Devolution process under the 18th Amendment to the Pakistani Constitution

By Yasser Latif Hamdani

Section 96 of the Constitution (Eighteenth Amendment) Act 2010 (“Amendment”) introduces 270-AA. Article 270-AA (8) reads:

“On the omission of the Concurrent Legislative List, the process of devolution of the matters mentioned in the said legislative list shall be completed by the thirtieth day of June, two thousand and eleven.”

Big changes for foreign lawyers at the American Bar


Sitting for the bar exam may soon be trickier for the thousands of foreign-trained attorneys who take the test each year.
The New York Court of Appeals in April adopted stricter requirements for master of laws (LL.M.) programs, which help foreign lawyers gain eligibility to take the bar. The new rules focus primarily on the content of LL.M. programs, which many foreign attorneys use as an entry point into the domestic legal market.