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.

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.

Jinnah as a lawyer

From http://mylaw.net

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.

Mental Health Ordinance 2001

CONSTITUTIONAL POSITION AND REASONS

·        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 18^th 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 AND INVOLUNTARY TREATMENTS

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.

	Last week’s Knesset vote on the Boycott Law. The law is allowable, worthy and constitutional.
	Photo by: Michal Fattal

THE ARTICLE 10-A OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973

By FAIZ RASOOL KHAN JALBANIAdvocate

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.