7/27/2019 Business Law (Phase 1)
1/65
7/27/2019 Business Law (Phase 1)
2/65
BUSINESS LAW
WINTER2013
7/27/2019 Business Law (Phase 1)
3/65
7/27/2019 Business Law (Phase 1)
4/65
?????
WHAT IS LAW?
MEANING?
DEFINITION?
PURPOSE?
ROLE?
7/27/2019 Business Law (Phase 1)
5/65
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
7/27/2019 Business Law (Phase 1)
6/65
7/27/2019 Business Law (Phase 1)
7/65
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.
7/27/2019 Business Law (Phase 1)
8/65
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
7/27/2019 Business Law (Phase 1)
9/65
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
7/27/2019 Business Law (Phase 1)
10/65
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.
7/27/2019 Business Law (Phase 1)
11/65
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
7/27/2019 Business Law (Phase 1)
12/65
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.
7/27/2019 Business Law (Phase 1)
13/65
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
7/27/2019 Business Law (Phase 1)
14/65
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.
7/27/2019 Business Law (Phase 1)
15/65
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.
7/27/2019 Business Law (Phase 1)
16/65
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.
7/27/2019 Business Law (Phase 1)
17/65
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
7/27/2019 Business Law (Phase 1)
18/65
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
7/27/2019 Business Law (Phase 1)
19/65
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.
7/27/2019 Business Law (Phase 1)
20/65
LEGAL HISTORY
HANDOUT
7/27/2019 Business Law (Phase 1)
21/65
NATURE OF LAW
HANDOUT
7/27/2019 Business Law (Phase 1)
22/65
PAKISTAN...LEGAL HISTORY
HANDOUT
7/27/2019 Business Law (Phase 1)
23/65
ULTRA VIRES
HANDOUT
7/27/2019 Business Law (Phase 1)
24/65
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
7/27/2019 Business Law (Phase 1)
25/65
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.
7/27/2019 Business Law (Phase 1)
26/65
ADMINISTRATION OF JUSTICE
7/27/2019 Business Law (Phase 1)
27/65
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.
7/27/2019 Business Law (Phase 1)
28/65
7/27/2019 Business Law (Phase 1)
29/65
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
7/27/2019 Business Law (Phase 1)
30/65
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
7/27/2019 Business Law (Phase 1)
31/65
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,
7/27/2019 Business Law (Phase 1)
32/65
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.
7/27/2019 Business Law (Phase 1)
33/65
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
7/27/2019 Business Law (Phase 1)
34/65
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
7/27/2019 Business Law (Phase 1)
35/65
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
7/27/2019 Business Law (Phase 1)
36/65
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.
7/27/2019 Business Law (Phase 1)
37/65
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.
7/27/2019 Business Law (Phase 1)
38/65
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
7/27/2019 Business Law (Phase 1)
39/65
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.
7/27/2019 Business Law (Phase 1)
40/65
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.
7/27/2019 Business Law (Phase 1)
41/65
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
7/27/2019 Business Law (Phase 1)
42/65
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.
7/27/2019 Business Law (Phase 1)
43/65
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
7/27/2019 Business Law (Phase 1)
44/65
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.
7/27/2019 Business Law (Phase 1)
45/65
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.
7/27/2019 Business Law (Phase 1)
46/65
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.
7/27/2019 Business Law (Phase 1)
47/65
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).
7/27/2019 Business Law (Phase 1)
48/65
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.
7/27/2019 Business Law (Phase 1)
49/65
7/27/2019 Business Law (Phase 1)
50/65
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.
7/27/2019 Business Law (Phase 1)
51/65
Federal Shariat Court
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.
7/27/2019 Business Law (Phase 1)
52/65
Federal Shariat Court
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.
7/27/2019 Business Law (Phase 1)
53/65
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
7/27/2019 Business Law (Phase 1)
54/65
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
7/27/2019 Business Law (Phase 1)
55/65
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
7/27/2019 Business Law (Phase 1)
56/65
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
7/27/2019 Business Law (Phase 1)
57/65
ib l d h
7/27/2019 Business Law (Phase 1)
58/65
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
7/27/2019 Business Law (Phase 1)
59/65
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
T ib l d O h C
7/27/2019 Business Law (Phase 1)
60/65
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
Tribunal and Other Courts
7/27/2019 Business Law (Phase 1)
61/65
PRELIMINARY
PRELIMINARY
7/27/2019 Business Law (Phase 1)
62/65
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
7/27/2019 Business Law (Phase 1)
63/65
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
7/27/2019 Business Law (Phase 1)
64/65
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
7/27/2019 Business Law (Phase 1)
65/65