BUSINESS LAW WINTER 2013

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WHAT IS LAW?
MEANING?

DEFINITION?
PURPOSE? ROLE?

WHY STUDY LAW

Overwhelmed!...so different from studying accounts, marketing, economics, IT or HR. APPROACH: Learning relevant legal terminology Framework of particular area of law i.e. relevant legislation Application of daily life examples. MISCONCEPTION: Studying law is dull.merely a matter of memorising and reproducing

WHY STUDY LAW?

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Obvious! Course Requirement Study of law improves powers of reasoning, clarity of thought and the ability to analyze and express complicated ideas A greater appreciation of the workings of the system and the parts that ensure its functioning. Law forms the foundation on which any civilized society is based. Nature has its own laws. So does society. Law effects all aspects of life and society and is the mechanism for change employed by governments across the globe.From the protection of life and liberty, through corporate law to international relations, the law is the central stage.

WHY STUDY LAW? Contd.

Law is of interest to all persons, not just to lawyers. Those entering the world of business will find themselves subject to numerous laws and government regulations. A basic knowledge of these laws and regulations is beneficialif not essentialto anyone contemplating a successful career in the business world of today.

CONTD.
Legal education..not exclusively for entering into legal profession. Not to teach to be lawyers BUT. Key legal topics How law works and effects business operations Will assist future business people with decision making, ethics Develop an awareness when legal advice is needed Importance foundation knowledge importantknow how the law effects business. NOT: Think like a lawyer Adopt a critical legal analysis approach

VARIOUS MEANINGS AND DEFINITIONS

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One view is that it is not capable of definition But this cannot be the answer nor solve the problem The confusion in defining law arises out of the different purposes to be achieved e.g.: Law has been defined by various individuals from different points of view Various schools of law define it from different angles: - basis of nature - on source - terms of effect on society - end or purpose of law

MEANINGS AND DEFINITIONS Contd.

A universal and uniform definition is difficult. The evolution of society is of a dynamic nature and hence the difficulty in accepting a definition by all. One reason in defining law is the different types of purpose sought to be achieved: HORSE to a zoologist, a traveller, polo player, for some article of food etc.

DEFINITIONS---Contd.
There have been and will continue to be different definitions of law:
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ARISTOTLE (384-322 B.C.) a pledge that citizens of a state will do justice to one another PLATO ( 427-347 B.C.) believed that law was a form of social control. SIR WILLIAM BLACKSTONE (1723-1780) a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong

MEANINGS AND DEFINITIONS: Contd.

Generally and the most commonly accepted definition is A rule of action to which men are obliged to make their conduct comfortable Law is the command of the sovereign. It imposes a duty and is backed by a sanction. Command, duty and sanction are three elements of law

All these definitions vary but all are based on: law consists of enforceable rules governing relationships among individuals and between individuals and their society .

LAW MAKING:PROCESS
LEGISLATION: The making of law. The act of enacting or legislating laws.
Bill----Proposal Committees of the House Approval by the Legislature Assent by the President.

Difference between Law and Ordinance

PURPOSE OF LAW
Object of law is to maintain law and order in the country i.e. police functions
Another view limit natural liberty; Man is born free but is in chains everywhere. Hindu view , purpose of law is the welfare of the people in the world and also salvation after death. Muslim: the end of the law is to promote the welfare of man both individually and socially, not merely in respect of life on this earth but also life hereafter.

KINDS OF LAW
1. 2. 3. 4. 5. 6. IMPERATIVE LAW. Imposed upon on men by some authority. Emphasis on the will and physical force of the organized political community. PHYSICAL OR SCIENTIFIC LAW . Laws of science e.g. law of gravity NATURAL or MORAL LAW. Universal rules of governance. Principles of natural justice. Divine Law. CONVENTIONAL LAW. Rules or regulations of voluntary organizations e.g. associations, clubs etc. CUSTOMARY LAW. Customs, practices, traditions with historical sanction and support e.g. jirga TECHNICAL LAW. For efficient conduct of business e.g building laws, laws of health INTERNATIONAL LAW. Sum of laws and rules recognized by civilized in their dealings with each other CIVIL LAW. Municipal Law.

7.
8.

ADVANTAGES AND DISADANTAGES.

Uniformity and certainty to the administration of justice. Avoids the dangers of arbitrary, biased and dishonest decisions. Fixed principles protect the administration of justice from the errors of individual judgment More reliable than whims, wishes and desires. 1. 2. 3. 4. Rigidity. Conservative Formalism Complex.

JURISPRUDENCE
Philosophy of law. Study and theory of law. Different philosophies how law has developed: Natural Law: The law is based on what is morally correct and ethical. Historical: The law consists of social traditions and customs. Analytical: The law is shaped by logic Sociological: The law provides a way to to advance certain goals in the best interests of society. Command: The law is the set of rules created and enforced by the governing party. Critical Legal Studies: Legal rules are unnecessary and legal disputes should be solved by using rules based on fairness. Law and Economics: Promoting market efficiencys should be the key concern of the law

JURISPRUDENCE...Contd.
Human Behaviour....dominating, historically, chronogically: Customs and Traditions: first laws created to govern human behaviour. First law or practices set by man. Passed down from generation to generation. Imperialistic: imposed by men on men. To portray which customs and practices were superior. What was right and what was wrong kept changing with shift in power dynamics. Natural need to dominate. A small strong group controlled a large weak group e.g. Egyptian, Greek empires

JURISPRUDENCE...Contd.
Religion: concept of justice and equality for all. Defined all matters of life and the correct way of handling them. Laid authority to a supreme power not known to man. Beginning of moral code. Basis for all civil and criminal law. On which morals and international law stands today.

LEGAL HISTORY

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NATURE OF LAW

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PAKISTAN...LEGAL HISTORY

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ULTRA VIRES

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COMMON LAW
Before the Norman Conquest in 1066 each locality in England was subject to local laws established by the local ruling Lord or chieftain. William the Conqueror and his successors began to replace the local laws with one uniform system of law. English Common Law was developed over centuries by judges appointed by the monarch, who delivered their opinions when deciding cases brought before court. The emphasis of law at that time was legal procedure over the merit of case. Monetary compensation (damages) was the only remedy available

COMMON LAW...Contd.
To mitigate limited remedies available and unfair judgments, under the authority of Lord Chancellor, Court of Chancery (equity) were established. Appeals lay before these courts against the decisions of Kings Courts. The Courts of Chancery would grant appropriate remedy. These remedies were known as equitable remedies...designed to deal with particular fact situations. Equitable remedies took precedence over the decisions of the Kings Courts. In the 19th century a law passed by the Parliament merged the two court systems.

ADMINISTRATION OF JUSTICE

WHAT IS JUSTICE?
The quality of being just; propriety; correctness; justness; rightfulness; vindication of right; merited reward or punishment The act of rendering what is right and equitable towards one who has suffered a wrong. ADMINISTRATION OF JUSTICE can be defined as the maintenance of rights within a political community by means of the physical force of the state. The origin and growth is identical with the origin and growth of man. The social nature of man demands that he must live in society. Owes its origin to the transition from the natural to the civil state in the substitution of the force of organized community for the force of individuals , as the instrument of redress and punishment of injuries.

Contd:
It has substituted the primitive practices of private vengeance. People are now defended by the power of state through its courts of law Both a narrower and a wider sense: NARROW flows from the dictionary meaning; after its institution till the pronouncement of judgment and execution of the decree, judgment or order. WIDER: include aspects connected with the administration of justice. Divisible into administration of civil justice and administration of criminal justice.

Contd:
The Code of Civil Procedure 1908 prescribes for proceeding in civil cases. In two parts Sections: contain the basic and fundamental principles, can be amended only by the legislature. Schedules : contain rules or procedures and can be amended by the high court. The Code of Civil Procedure prescribes detail procedure regarding filing of suite, pleading, proceedings, writing of judgment and executing of decrees. The Code of Criminal Procedure, 1898 prescribes the criminal procedure

Contd:
The Qanun-e-Shahadat Order 1984 prescribes the competency of witnesses where examination, evidence and procedure for presenting the same. The Special Courts follow the procedure prescribed in the above codes (Code of Civil Procedure 1908 and The Code of Criminal Procedure) Differences between civil and criminal: Civil- - -enforcement of rights; Criminal- - -concerned with the punishment for them. The difference between public and private wrongs

Contd:
Distinction between civil wrongs and crimes relates to legal consequences. Administered according to its own and separate set of forms; in the legal consequences of acts Object of civil proceedings is to enforce rights and object of criminal proceedings is to punish wrongs. But, sometimes civil and criminal proceedings may have a similar result in some cases. PURPOSE: CRIMINAL JUSTICE; 1. Deterrent: Important--- make the law breaker an example for others so that they think of the consequences before braking the law,

Contd:
2. Preventive: to disable the offender from committing the same offence again e.g. by imprisonment, etc. 3. Reformative: Identifying the crime with disease and treating is such---cure and not criminals. 4. Retributive: Private vengeance no longer in the private sense but the offender should be punished.

Contd:
PURPOSE: CIVIL JUSTICE enforces primary rights and sanctioning rights. Primary rights exist as such , do not have their source in some wrong.

Sanctioning or remedial rights are those which come into being after the violation of a primary right.
THERE IS NO BETTER TEST OF THE EXCELLENCE OF A GOVERNMENT THAN THE EFFICIENCY OF ITS JUDICIAL SYSTEM

Contd
A High Court was set up at Dhaka. A new Federal court of Pakistan was also established. A look at the hierarchy and system of courts in Pakistan.

The powers, authority and jurisdiction of the federal and high courts remained intact as prescribed under the Government of India Act 1935. The constitutions of 1956, 1962 & 1973 did not drastically alter the judicial structure or the powers and jurisdiction of the superior courts.

Contd
Only, the Federal Court was renamed as the Supreme Court by the 1956 constitution. The 1973 constitution upgraded the Chief Court of NWFP and the Judicial Commission court of Pakistan into full fledged High Courts. FEATURES The constitution of Pakistan contains elaborate provisions for the composition, jurisdiction, powers and functions of the courts

Contd
The constitution provides for the separation of judiciary from the executive and the independence of judiciary Qualifications, appointment, service conditions etc. of the judges are also laid down in the constitution. The forum as procedure for the removal of judges of the superior courts are also provided in the constitution..... The Supreme Judicial Council.

Courts are federal and provincial in nature.

Contd
System made up differing in levels of legal superiority

System separated by jurisdiction

LITIGATION The process of bringing, maintaining and defending a legal case in court.

Superior Judiciary
The constitution of Pakistan contains provisions on the composition, jurisdiction, functions.

Constitution provides for separation of judiciary from the executive, independence of judiciary and the obligation to preserve, protect and defend the Constitution
Qualification of Judges, appointment, service conditions etc. The forum and procedure for the removal of judges. In the famous case of Al-Jehad Trust The Supreme Court clarified the procedure and qualification for appointment of judges to the Supreme and High Courts and their Chief Justices

Contd
The Chief Justice recommended a panel to the President who would select from the said panel a suitable judge. For appointment in the High Courts, the respective Chief Justices would forward a panel to the President through the Governor of the Province and Chief Justice of Pakistan. The recommendation of the Chief Justice was binding on the President, except for sound reasons to be recorded by the President. This procedure has been changed by the Constitution 18th and 19th (Amendments) Acts 2010.

Contd
Now Judges of the Supreme Court are appointed through a Judicial Commission:

Chief Justice of Pakistan as Chairman Four Senior most Judges of the Supreme Court One Former Chief Justice of the Supreme Court (nominated by the Chairman in consultation with the four member judges for a period of two years) The Attorney General of Pakistan Federal Law Minister A senior Advocate, of the Supreme Court nominated by the Pakistan Bar Council.

Contd
The name recommended goes to an 8 member PARLIAMENTARY COMMITTEE equal representation of Government and Opposition as well as National Assembly and Senate. The Committee has two weeks to consider the nomination. If approved the name is forwarded to the President and Prime Minster for appointment.

The Parliamentary Committee, for reasons to be recorded, may not confirm the recommendation by three-fourth majority.

Contd
This decision is sent back to the Judicial Commission through the Prime Minister and the Commission sends another nomination. The President has to appoint the senior most judge of the Supreme Court as the Chief Justice of Pakistan.

For the appointment of Chief Justice and Judges of The Federal Shariat Court the Chief Justice and most senior judge of the said Court are added to the composition of the Judicial Commission.
For appointment of the Chief Justice the most senior judge is excluded.

Contd
For appointment of Chief Justice and Judges of High Courts: The Chief Justice and senior most judge of their respective High Court Provincial Minister for Law Nominee of the Provincial Bar Council (Advocate of High Court of fifteen years standing) For appointment of Chief Justice the senior most judge is excluded.
Appointed by the President through nominations by Judicial Commission and confirmation by the Parliamentary Committee

Accountability
Procedure prescribed in the Constitution Supreme Judicial Council:
Chief Justice of Pakistan as chairman Two most senior judges of the Supreme Court Two most Senior Chief Justices of High Court Registrar Supreme Court as Secretary

Supreme Judicial Council either on reference from the President or suo moto investigates the matter and presents its finding to the President. The President may order removal of such a judge. Removal has to be on specified grounds and subject to prescribed procedure.

Supreme Court
Apex court. Original, appellate and advisory jurisdiction. Court of ultimate appeal, final arbiter of the law and the constitution Decision binding on all other courts. Original jurisdiction in inter-governmental disputes between federal and provincial government or among provincial governments Original jurisdiction for enforcement of fundamental rights

Advisory jurisdiction in giving opinion to the government on a question of law.

Supreme Court
Appellate jurisdiction against judgments of Federal Shariat Court, Service Tribunals and some special courts. Principal seat at Islamabad and four branch registries at each provincial capital. Advisory jurisdiction in giving opinion to the government on a question of law. Appellate jurisdiction against judgments of Federal Shariat Court, Service Tribunals and some special courts.

Principal seat at Islamabad and four branch registries at each provincial capital.

Supreme Court
Court consists of the Chief Jsustice and 16 judges (number determined by law) Provision for appointment of acting and ad hoc judges.

Five years experience as a judge of a High Court or fifteen years standing as advocate of a High Court (eligible to be appointed as judge of Supreme Court).

High Courts
One in each province and one for Islamabad Capital Territory A Chief Justice and other judges in each court: Lahore High Court strength fixed at 60 Sindh High Court40 Peshawar High Court---20 Baluchistan High Court- --11 Islamabad ---11 Ten years experience as advocate of High court or ten years service as a civil servant including three years as district judge or ten years in a judicial office.

High Courts
Appointed by the Judicial Commission.

A judge cannot be transferred without his consent and consultation by the President with the Chief Justices of Supreme Court and High Court.
Original jurisdiction in enforcement of Fundamental Rights. Appellate jurisdiction in judgment /orders of subordinate courts, both in criminal and civil matters.

Supervises and controls all the courts subordinate to it.

Federal Shariat Court

Established in 1980 through a Presidential Order. Created as an Islamisation measure and protected under the 8th Amendment. Comprises of eight judges out of which three are required to be Ulema well versed in Islamic Law.

Hold office for three years which may be extended by the President.
Procedure for appointment through the Judicial Commission.

Federal Shariat Court

On its own or through a petition by a citizen or government ( Federal or Provincial), may examine and determine as to whether or not a certain provision of law is repugnant to the junctions of Islam. Appeal against its decisions lie to the Shariat Appellate Bench of the Supreme Court.
The Bench consists of three Muslim judges of the supreme court and not more than 2 Ulama appointed by the President. If a certain provision is declared to be repugnant, the government to amend the law in conformity with the injunctions of Islam.

Federal Shariat Court

Appellate and revision jurisdiction over the criminal courts, deciding Hudood cases. Decisions binding on high courts and subordinate judiciary. Difference of opinion:
Duplicates the functions of the existing superior courts Mode of appointment and tenure Meet the criteria for the independence of judiciary Not immune from influences of executives.

Protection of Women (Criminal Laws Amendment) Act 2006, considerably curtailed its jurisdiction.

Subordinate Courts
The subordinate judiciary broadly divided into 1. Civil Courts( established under the West Pakistan Civil Courts Ordinance 1962) 2. Criminal Courts ( created under Criminal Procedure Code 1898) Judges of Civil and Criminal courts are appointed by Provincial Governments and regulate their terms and condition of service . The High court exercises administrative controls over courts.

Subordinate Courts
Civil Courts consist of District Judge, Additional District judge, Senior Civil Judge and Civil Judge Class I, II, III. Appeal against the decisions of the civil judge lies to the district judge and high court--- depending upon the value of suit. Criminal courts comprises : Session Judge, Additional Session Judge and Judicial Magistrate Class I, II,III.

Appeals against criminal courts lie to session judge or high court depending upon the quantum of penalty

Subordinate Courts
Appointment and Recruitment 1. Civil Judge-cum-Judicial Magistrate--- initial recruitment through Public Service Commission with the active involvement of the High Court.
2. A competitive examination written test and a viva voce. 3. Promotionby a committee of the judges of the high court. 4. Additional District and Session Judge --- quota fixed for service personal as well as induction from the Bar 5. District and sessions judge--- Promotion on basis of seniority cum-fitness from among the serving judicial officers.

Subordinate Courts
6. High Court exercises both administrative as well as judicial supervision. 7. Administrative--- Disciplinary proceedings may be initiated against the judicial officer by the High Court. 8. Judicial Control Revisions and Appeals filed in High Court against the orders and decisions of subordinate courts. 9. Supervisory--- Through inspections and calling of records. 10. The judicial officers have right of approaching the Provincial Judicial Service Tribunal (headed by the judges of the High Court) for redress of their grievances. 11. Appeal against their decisions lies to the Supreme Court.

Tribunal and Other Courts

Created under Special Laws and enactments Jurisdiction, powers and functions specified in the laws creating them. The constitution authorizes the Parliament to establish administrative courts and tribunals for dealing with federal subjects Many created which operate under the administrative control of the Federal Government.

Tribunal and Other Courts

Such Courts/Tribunals include :
Special Courts ( control of narcotic substances) Banking courts ( recovery loans) Special courts (Offences in banks) Special courts (customs, taxation and anti-smuggling) Income Tax Appellate Tribunal Environment Appellate Tribunal Insurance Appellate Tribunal Customs Excise and Sales tax Special Judges Drug courts Anti-terrorism Courts Accountability courts

Tribunal and Other Courts

Provincial Governments have their own Special Courts/ Tribunals

Appeals or revision against such courts lie before the superior judiciary (High Court and/or Supreme Court)
Provincial Governments have their own special courts/ Tribunals: Labour Courts Consumer Protection Courts Anti-Terrorism Courts Anti- Corruption Courts. Appeals or revision against such courts lie before the superior judiciary (High Court and/or Supreme Court)

Tribunal and Other Courts

Service Tribunals

Exclusive jurisdiction relating to terms and conditions of service of civil servants under the constitution.
At Provincial and Central level. Its members appointed by the respective governments. Appeal lies to the Supreme Court

PRELIMINARY

PRELIMINARY
PURPOSE: Every Act (law) has a purpose for which it is enacted (made). CHAPTERS AND SCHEDULES: Every Act is divided in Chapters. Every Chapter deals with a particular subject. Schedules are part of the Act; often containing rules dealing detail a subject dealt summarily within the Act. SECTIONS,SUB-SECTIONS, CLAUSES AND SUBCLAUSES Every Chapter has a subject. Each aspect of this subject is dealt with in a separate section. Each section deals with a particular topic. Its various aspects are then dealt in separate sub-sections which is further divided into clauses and sub-clauses

PRELIMINARYContd.
DEFINITIONS: Where and when a word is specifically defined it has a special meaning otherwise it has ordinary dictionary meaning. A specific meaning over rules the ordinary dictionary meaning

TWO TYPES: 1. EXCLUSIVE DEFINITION: Gives a precise meaning completely replacing ordinary meaning. Excludes all other meanings. Begins with the word MEANS 2. INCLUSIVE DEFINITION: Expansive definition. Begins with INCLUDES. Has both elements

PRELIMINARYContd.
PROVISO: Normally varies the meaning or operation of a section, sub-section. Makes an exception to the main provision EXPLANATION: Specifies the meaning of a word, term or phrase which is ordinarily capable of signifying more than one meaning or interpretation

CONTD.
Law divided into PARTS and each deals with a particular subject e.g. Part II Jurisdiction of Courts. Part III SECP, Part IV Incorporation of Companies

Sections
Sub Sections DEFINITIONS: The word or a term specifically defined has a special meaning assigned to it and replaces its ordinary meeting. Otherwise have their ordinary dictionary meaning e.g. Proceed in alphabetical order

Section 2 (7) Company means a company formed and registered under this Ordinance or an existing Company