business law (phase 1)

7/27/2019 Business Law (Phase 1)

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BUSINESS LAW

WINTER2013


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?????

WHAT IS LAW?

MEANING?

DEFINITION?

PURPOSE?

ROLE?


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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


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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 andgovernment regulations. A basic knowledge of these

laws and regulations is beneficialif not essentialto

anyone contemplating a successful career in the

business world of today.


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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 thelaw effects business.

NOT:

Think like a lawyer

Adopt a critical legal analysis approach


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VARIOUS MEANINGS AND

DEFINITIONS

l One view is that it is not capable of definition

l But this cannot be the answer nor solve the problem

l The confusion in defining law arises out of the different

purposes to be achieved e.g.:

l Law has been defined by various individuals from differentpoints of view

l Various schools of law define it from different angles:

- basis of nature

- on source

- terms of effect on society

- end or purpose of law


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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.


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DEFINITIONS---Contd.

There have been and will continue to be different

definitions of law:

l ARISTOTLE (384-322 B.C.) a pledge that citizens of a

state will do justice to one another

l PLATO ( 427-347 B.C.) believed that law was a form of

social control.

l 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


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MEANINGS AND DEFINITIONS: Contd.

l Generally and the most commonly accepted

definition is A rule of action to which men are

obliged to make their conduct comfortable

lLaw 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: lawconsists of enforceable rules governing relationships amongindividuals and between individuals and their society.


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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


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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 butis 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 ofman both individually and socially, not merely in

respect of life on this earth but also life hereafter.


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KINDS OF LAW

1. IMPERATIVE LAW. Imposed upon on men by some authority.

Emphasis on the will and physical force of the organized political

community.

2. PHYSICAL OR SCIENTIFIC LAW . Laws of science e.g. law of

gravity

3. NATURAL or MORAL LAW. Universal rules of governance.

Principles of natural justice. Divine Law.

4. CONVENTIONAL LAW. Rules or regulations of voluntaryorganizations e.g. associations, clubs etc.

5. CUSTOMARY LAW. Customs, practices, traditions with historical

sanction and support e.g. jirga

6. TECHNICAL LAW. For efficient conduct of business e.g building

laws, laws of health7. INTERNATIONAL LAW. Sum of laws and rules recognized by

civilized in their dealings with each other

8. CIVIL LAW. Municipal Law.


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ADVANTAGES AND DISADANTAGES.

Uniformity and certainty to the administration ofjustice.

Avoids the dangers of arbitrary, biased anddishonest decisions.

Fixed principles protect the administration ofjustice from the errors of individual judgment

More reliable than whims, wishes and desires.

1. Rigidity.

2. Conservative3. Formalism

4. Complex.


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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 andethical.

Historical: The law consists of social traditions and customs.

Analytical: The law is shaped by logicSociological: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 bythe governing party.

Critical Legal Studies: Legal rules are unnecessary and legaldisputes should be solved by using rules based on fairness.

Law and Economics: Promoting market efficiencys should bethe key concern of the law


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JURISPRUDENCE...Contd.Human Behaviour....dominating, historically,

chronogically:

Customs and Traditions: first laws created to governhuman behaviour. First law or practices set by

man. Passed down from generation to generation.

Imperialistic: imposed by men on men. To portraywhich customs and practices were superior. Whatwas right and what was wrong kept changing with

shift in power dynamics. Natural need to dominate.A small strong group controlled a large weak groupe.g. Egyptian, Greek empires


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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.


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LEGAL HISTORY

HANDOUT


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NATURE OF LAW

HANDOUT


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PAKISTAN...LEGAL HISTORY

HANDOUT


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ULTRA VIRES

HANDOUT


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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 procedureover the merit of case.

Monetary compensation (damages) was the only remedy

available


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COMMON LAW...Contd.

To mitigate limited remedies available and unfairjudgments, under the authority of Lord Chancellor,Court of Chancery (equity) were established.

Appeals lay before these courts against the decisions ofKings Courts.

The Courts of Chancery would grant appropriateremedy.

These remedies were known as equitableremedies...designed to deal with particular factsituations.

Equitable remedies took precedence over the decisionsof the Kings Courts.

In the 19th century a law passed by the Parliamentmerged the two court systems.


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ADMINISTRATION OF JUSTICE


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WHAT IS JUSTICE?The quality of being just; propriety; correctness;

justness; rightfulness; vindication of right; meritedreward or punishment

The act of rendering what is right and equitable towardsone who has suffered a wrong.

ADMINISTRATION OF JUSTICE can be defined as the

maintenance of rights within a political community bymeans of the physical force of the state.

The origin and growth is identical with the origin andgrowth of man. The social nature of man demands that hemust live in society.

Owes its origin to the transition from the natural to thecivil state in the substitution of the force of organizedcommunity for the force of individuals , as the instrumentof redress and punishment of injuries.


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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 Procedureprescribes 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


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Contd:

The Qanun-e-Shahadat Order 1984 prescribes the

competency of witnesses where examination, evidenceand 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


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Contd:

Distinction between civil wrongs and crimes relates to

legal consequences. Administered according to its ownand separate set of forms; in the legal consequences ofacts

Object of civil proceedings is to enforce rights andobject of criminal proceedings is to punish wrongs. But,sometimes civil and criminal proceedings may have asimilar result in some cases.

PURPOSE: CRIMINAL JUSTICE;

1. Deterrent: Important--- make the law breaker anexample for others so that they think of theconsequences before braking the law,


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Contd:

2. Preventive: to disable the offender from committing thesame 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.


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Contd:

PURPOSE: CIVIL JUSTICE enforces primary rightsandsanctioning 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 ITSJUDICIAL SYSTEM


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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 notdrastically alter the judicial structure or the powers

and jurisdiction of the superior courts.

Contd


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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


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Contd

The constitution provides for the separation ofjudiciary 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.


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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.


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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 TrustThe Supreme Court

clarified the procedure and qualification for appointment of

judges to the Supreme and High Courts and their Chief

Justices


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Contd

The Chief Justice recommended a panel to the

President who would select from the said panel asuitable judge.

For appointment in the High Courts, the respectiveChief Justices would forward a panel to the President

through the Governor of the Province and Chief Justiceof Pakistan.

The recommendation of the Chief Justice was bindingon the President, except for sound reasons to berecorded by the President.

This procedure has been changed by the Constitution18thand 19th (Amendments) Acts 2010.


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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.


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The name recommended goes to an 8 member

PARLIAMENTARY COMMITTEE

equal representationof 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 tobe recorded, may not confirm the

recommendation by three-fourth majority.

Contd


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Contd This decision is sent back to the Judicial Commission

through the Prime Minister and the Commission sendsanother 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 ofThe

Federal Shariat Courtthe 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.


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For appointment of Chief Justice and Judges ofHigh

Courts:The Chief Justice and senior most judge of their

respective High Court

Provincial Minister for Law

Nominee of the Provincial Bar Council (Advocate ofHigh Court of fifteen years standing)

For appointment of Chief Justice the senior most

judge is excluded.

Appointed by the President through nominations

byJudicial Commission and confirmation by the

Parliamentary Committee

Contd


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Accountability

Procedure prescribed in the ConstitutionSupreme

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 thePresident 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.


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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 disputesbetween 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.


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Supreme Court

Appellate jurisdiction against judgments of Federal

Shariat Court, Service Tribunals and some specialcourts.

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

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

Appellate jurisdiction against judgments of FederalShariat Court, Service Tribunals and some specialcourts.

Principal seat at Islamabad and four branchregistries at each provincial capital.


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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).


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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 tenyears service as a civil servant including three years as

district judge or ten years in a judicial office.


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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 requiredto 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.


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On its own or through a petition by a citizen orgovernment ( 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 Benchof 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.


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Appellate and revision jurisdiction over the criminalcourts, 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.


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The subordinate judiciary broadly divided into

1. Civil Courts( established under the West PakistanCivil Courts Ordinance 1962)

2. Criminal Courts ( created under Criminal ProcedureCode 1898)

Judges of Civil and Criminal courts are appointed byProvincial Governments and regulate their terms and

condition of service .

The High court exercises administrative controls overcourts.

Subordinate Courts


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Civil Courtsconsist of District Judge, Additional Districtjudge, 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 sessionjudge or high court depending upon the

quantum of penalty

Subordinate Courts


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Appointment and Recruitment

1. Civil Judge-cum-Judicial Magistrate--- initial recruitmentthrough Public Service Commission with the active

involvement of the High Court.

2. A competitive examinationwritten 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 senioritycum-fitness from among the

serving judicial officers.

Subordinate Courts


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6. High Court exercises both administrative as well as judicialsupervision.

7. Administrative--- Disciplinary proceedings may be initiatedagainst the judicial officer by the High Court.

8. Judicial ControlRevisions 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 ProvincialJudicial 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.

Subordinate Courts


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ib l d h


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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

T ib l d h


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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)


T ib l d O h C


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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



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PRELIMINARY

PRELIMINARY


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PRELIMINARYPURPOSE:

Every Act (law) has a purpose for which it is enacted

(made).CHAPTERS AND SCHEDULES:

Every Act is divided in Chapters. Every Chapter dealswith 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 SUB-CLAUSES

Every Chapter has a subject. Each aspect of thissubject is dealt with in a separate section. Each sectiondeals with a particular topic. Its various aspects are thendealt in separate sub-sections which is further dividedinto clauses and sub-clauses


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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


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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


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