By
Aamir Abbas,
Govt College University Sargodha

Introduction

This paper is an attempt to highlight the practices of traditional banking system comparing it with Islamic one. This is an exploratory study of existing practices of banks in money, capital and credit markets where interest based borrowing and lending, though repugnant to Islamic injunctions, is supposed to be the blood vessels for economic survival of homo sapiens.

Comparative Economic Philosophies

The societal fabric of human being solicits different socio economic setups and consequently, each society envisions economic system different to other societies Economic system is an integrated way of production, consumption and distribution or how the state should allocate resources among different factors of production. This integrated system is guided by particular economic system, which a society prefers to practice. This trend resulted in three different economic systems, present in the world. These are capitalism, socialism and Islamic economic systems. Each has its own guidelines for production, consumption and distribution of resources.

In capitalism, ownership lies with the individual and individual has absolute power on his property. He may use his wealth in a way he likes irrespective of how it creates disorder. This nature of wealth is evident from saying of nation of Hazrat Shoaib (A.S)

“Does your way of prayer commands you that we should forsake what our forefathers worshipped or leave off doing what we want with our own property” (11:87)

Read More

By:
REHAN RAUF ADVOCATE
M.A. (Political Science)
M.A (History)
P.G.D.E.L., LL.B (Punjab University)
E-mail: DJREHAN103FM@YAHOO.COM

1.      PRELIMINARY NOTE

Human rights are sometimes called fundamental rights or basic or natural Rights. Fundamental or basic rights are those, which must not be taken away by any legislature, or any act of government and which are often set out in Constitution. Human rights refer to the “basic rights and freedoms to which all humans are entitled.” Examples of rights and freedoms which are often thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the law; and social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education.

The Magna Charta or “Great Charter” was one of England’s first documents containing commitments by a sovereign to his people to respect certain legal rights. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”

2.      Views of philosophers about human rights

• J, E.S Fawcett, The law of nations (London, 1968) P, 151

“Human Rights are common rights, for they are rights which men or women in the world should share”

• Lauterpacht. International law and human rights, P. 152

“Human Rights are not created by any legislation, they assume the position of natural rights”

• MC Dougal. Human rights in the United Nations, Vol.56 (1964), P.604

“International concern with human rights is not a modern innovation. It is in fact, heir to all great historic movements for man’s freedom”.

1. 3. HISTORY OF HUMAN RIGHTS

This history of human rights covers thousands of years and draws upon religious, cultural, philosophical and legal developments throughout recorded history. Several ancient documents and later religions and philosophies included a variety of concepts that may be considered to be human rights. Notable among such documents are the Cyrus cylinder of 539 BC, a declaration of intentions by the Persian emperor Cyrus the Great after his conquest of the Neo-Babylonian Empire; the Edicts of Ashoka issued by Ashoka the Great of India between 272-231 BC; and

• The Constitution of Medina of 622 AD, drafted by Muhammad to mark a formal agreement between all of the significant tribes and families of Yathrib (later known as Medina), including Muslims, Jews and Pagans.
• The English Magna Charta of 1215 is particularly significant in the history of English law, and is hence significant in international law and constitutional law today.
• Declaration of the Rights of Man and of the Citizen approved by the National Assembly of France, August 26, 1789

Much of modern human rights law and the basis of most modern interpretations of human rights can be traced back to relatively recent history. The British Bill of Rights (or “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown”) of 1689 made illegal a range of oppressive governmental actions in the United Kingdom. Two major revolutions occurred during the 18th century, in the United States (1776) and in France (1789), leading to the adoption of the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen respectively, both of which established certain rights. Additionally, the Virginia Declaration of Rights of 1776 set up a number of fundamental rights and freedoms.

Read More

A TRIPPLE BOTTOM LINE

By:
ALI AZFAR TIRMIZI

By the end of the 19th century the forces of limited liability, state and national deregulation, immense industrialization and vastly increasing capital markets had come together to give birth to the corporation in its modern-day form. The 20th century saw a proliferation of enabling law across the world, which stimulated to drive economic booms in many countries. The hike in economic activity gave birth to an treacherous competition among the business community. The boundless profit orientation of business organizations resulted in the cruel exploitation of working class. However, the Soviet Revolution of 1917 proved hurdalious to the extensive growth of capitalism. Many countaries being inspired by the soviet experience admitted, the popular demands of workers, reduced working hours and gave social liberties to the labour. It was the era of nationalization and state controled economy which encampassed almost the whole 20th century. The ray of nationalization came to an end in 1980s and many countries with large state-owned corporations moved toward privatization, the selling of publicly owned services and enterprises to corporations. Deregulation (reducing the regulation of corporate activity) often accompanied privatization as part of a laissez-faire policy. Free market economy, the absencence of governmental check and huge multi-national business structures are supposed to devour all the resources of the planet. So the demand for more ethical business processes and actions (known as ethicism) is increasing. Simultaneously, pressure is brought to bear on industry to doctor up business ethics through new public initiatives and laws (e.g. higher UK road tax for higher-emission vehicles). Business ethics can be both a normative and a descriptive discipline. As a corporate practice and a career specialization, the field is primarily normative. In academia, descriptive approaches are also taken. The range and quantity of business ethical issues reflects the degree to which business is perceived to be at odds with non-economic social values. Historically, interest in business ethics accelerated dramatically during the 1980s and 1990s, both within major corporations and within academia. For example, today most major corporate websites lay emphasis on commitment to promoting non-economic social values under a variety of headings (e.g. ethics codes, social responsibility charters). In some cases, corporations have re-branded their core values in the light of business ethical considerations (e.g. BP’s “beyond petroleum” environmental tilt). The term Corporate social responsibility (CSR), also known as corporate responsibility, corporate citizenship, responsible business, sustainable responsible business (SRB), or corporate social performance came into common use in the early 1970s, after many multinational corporations formed CSR departments, although it was seldom abbreviated. It is a form of corporate self-regulation integrated into a business model. Ideally, CSR policy would function as a built-in, self-regulating mechanism whereby business would monitor and ensure its adherence to law, ethical standards, and international norms. Business would embrace responsibility for the impact of their activities on the environment, consumers, employees, communities, stakeholders and all other members of the public sphere. Furthermore, business would proactively promote the public interest by encouraging community growth and development, and voluntarily eliminating practices that harm the public sphere, regardless of legality.

Essentially, CSR is the deliberate inclusion of public interest into corporate decision-making, and the honoring of a triple bottom line: People, Planet, Profit.

Read More

By:
MUHAMMAD TAQI KHAN
Advocate Supreme Court of Pakistan

Circumstantial Evidence means a combination of fact creating a network from which, there is no escape for the accused, because a fact’s taken as a whole do not admit any influence, but the guilt of accused. In other words the circumstance as a whole must be thoroughly inconsistent with the hypothesis or the innocence of accused.

“Distinction between Direct and Circumstantial Evidence”

The destination between direct and circumstantial evidence which logically flows from a long catena of cases decided by the Supreme Court as well as the other High Courts can be summarized as under:–

1.     Direct evidence is that which goes to the very root of point, such as the evidence of witness who actually saw the commission of offence, whereas circumstantial evidence is evidence which without going directly to prove the existence of a fact, give rise to the logical inference that such fact does not exist.

2.     What is meant by direct evidence and by circumstantial evidence is that as proof one goes directly to establish the culpability of the accused person in the commission of offence, the other brings guilt home to him, by placing circumstances from which the inference is absolutely irristable that the accused has committed the offence.

3.     Circumstantial Evidence ordinarily means a fact from which some other fact is inferred, whereas, direct evidence means testimony given by a person as to what he has himself perceived by his own senses. Circumstantial Evidence means is the testimony of witness to other fact, the fact other than those in issues which are course relevant facts from the which the fact in issue may be inferred. As to admissibility both forms of evidence stand on the same footing, and the testimony whether the factum probandum’ or the ‘facts probatia’ is equally as original and direct.

Chief Justice Abbot observed! “In a great portion of trials as they occur in practice, no direct proof that the party accused actually committed the crime is or can be given; the man who is charged with the theft is rarely seen to break the house or take the goods: in case of murder, it rarely happens that the eye of any witness sees the fatal blow struck, or the poisonous ingredient pured into the cup.”

Read More

Justice at the Grassroot Level

“The Meeting of the NJPMC has been convened at a critical moment of our national history. There has occurred a gradual deterioration in the law and order situation and parts of the country are experiencing militancy and violence, causing the displacement of hundreds of thousands of innocent people – men, women, children and elderly. These are difficult times. We face existential threats. But I do not think that the difficulties are insurmountable. We are a tenacious nation, have demonstrated, more than once, our strength and ability to face challenges. The lawyers’ movement for restoration of independent-minded judges and supremacy of law/Constitution is a case in point. The movement for a grand cause was thronged by enthusiastic groups including civil society organisations, professional groups, political parties and students, etc. In the evening of 15 March 2009, the movement transformed itself into a mini-revolution. It demonstrated the agility and determination of the masses to tand by the Constitution and dispensation of power under this supreme law. It emboldened me to say today, that together we could face challenges and convert them into opportunities. I have full faith in the ability of the people to rise to the occasion and chalk out a future course of action, based on democratic values and constitutional principles.

The restoration of 3 November (2007) judiciary has ushered in a new era: an era of hope that political dispensation in the country and governance shall be in accordance with the constitutional principles. The people of Pakistan have reposed great confidence in the ability of the judiciary to redress their grievances and grant them relief. They have very high expectations of the courts to settle their disputes, restore their rights/entitlements and maintain peace in society by sending the guilty behind bars. I thank the people for believing on us! We must strive to meet their expectations. This is time to repay our debt to the nation. We could do so by addressing the perennial twin-problems of “backlog” and “delays” in the system of administration of justice. To achieve the objective, we need to formulate new judicial policy. I had asked the Secretariat of the NJPMC to prepare a framework of action for clearing the backlog and expeditious disposal of cases. The draft is before you. Let us  examine it and evolve a strategy for the purpose. I want the active participation of all stakeholders of the justice sector, essentially the members of the bench and the bar and also related agencies viz police/prison department and prosecution branch. The Policy that we ultimately approve would be one that has broad ownership. That is why extensive consultations have been carried out to get the viewpoint of judges, lawyers, litigants and others.

Read More

By
ZOHAIB IMRAN
Advocate High Court & Service Tribunals
(Zohaib_imran_elahi@hotmail.com)

This article solely based upon work done in order to reach a logical conclusion whether the functioning and administration of service tribunals in Pakistan can be brought within the ambit of Article 175 of the constitution of Pakistan 1973, which deals with the independence of judiciary and ousts executive from meddling into the affairs for judiciary and also whether service tribunals form part of the judiciary. Whether appointment of members from executive militates the concept of independence of judiciary in our country, if so what is the effect and consequences. This article also focus on the proposition whether mere performance of judicial functions by the service tribunals drag them within the strict definition and ambit of court or otherwise can be termed as court for the strict purposes of Article 175 of the constitution.

INTRODUCTION

“A court is permanently organized body with independent judicial powers defined by law, meeting at a time and place fixed by law for the judicial public administration of justice…………….” WILLIAM J, HUGHES

…………In a large number of cases decisions of administrative tribunals are judicial in nature, in the sense that the tribunals have to decide facts and apply rules to them impartially and without at times considering executive policy. Such tribunals are “in substance courts of law” ………….. (WADE H.W.R ADMINISTRATIVE LAW 3^RD EDITION)

DEFINITION OF COURT AND TRIBUNAL RESPECTIVELTY: BLACKS LAW DICTIONARY

“A governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice”

“A court of other adjudicatory body”

EXPLANATION

THE QUESTION for determination as to which forum is a court and which is not a court requires prime consideration at this moment. Procedural law qua method of presentation of lis is attracted to ascertain the essential element and character of court as such. Tribunal is bound to follow a defined procedure and to settle the disputes thereby administering the law and justice and also on very occasions enforced the fundamental rights qua terms and conditions of civil servant and examined applicability of laws and rules to the facts and circumstances of each particular case. On one hand judgments and orders passed by the service tribunal embrace the essential characteristic and perform in the administration of justice, verdicts of the tribunals have been held to be of binding and enforcing nature. Even our supreme court is clear on this issue. Reference may be made to 2009 SCMR 1 says:-

Read More

FULL COURT REFERENCE OF THE SUPREME COURT OF PAKISTAN IN HONOUR OF MR. JUSTICE SARDAR MUHAMMAD RAZA JUDGE SUPREME COURT OF PAKISTAN, HELD ON 09-02-2010 AT THE EVE OF HIS RETIREMENT

Address By
CH. MUHAMMAD NASRULLAH WARRAICH,
CHAIRMAN, EXECUTIVE COMMITTEE,
PAKISTAN BAR COUNCIL

On 9th February, 2010

Hon’ble Chief Justice, Hon’ble Judges of the Supreme Court, Mr. Justice Sardar Muhammad Raza, learned Attorney-General, learned President of Supreme Court Bar Association, distinguished guests and lawyer colleagues, Ladies and Gentlemen;

It is matter of great honour and privilege for me to be present in and address this dignified gathering in connection with Full Court Reference being held to bid farewell to Mr. Justice Sardar Muhammad Raza, on his retirement from the office as judge of the Supreme Court.

I humbly offer myriad of greetings and good wishes brought from the Members of Pakistan Bar Council, to Mr. Justice Sardar Muhammad Raza on the eve of his retirement.

Mr. Justice Sardar Muhammad Raza, belongs to a respectable family having an enviable social status. He was born on 10-02-1945 in Village Namli, a promising Son of Mr. Muhammad Yousuf Khan who was awarded Pride of Performance for his honesty, hard work and devotion to the welfare of people of the Illaqa. Mr. Justice Sardar Muhammad Raza has brilliant academic career, passed his Matriculation Examination from Govt. High School No. 2, Abbottabad, graduate from Government College Abbottabad, in 1962, he got admission in Forman Christian College, Lahore and did his Master’s in Economics in the year 1966 from the University of Punjab, thereafter joined Punjab University Law College and obtained his LL.B. degree in the year 1967; Appeared in the competitive examination PCS (Judicial) and was selected as Civil Judge by topping the list of candidates from N.W.F.P. He served as Civil Judge and Senior Civil Judge till May, 1976 when he was promoted as Additional District & Sessions Judge in 1976 and as District and Sessions Judge in 1979.

Read More

By :
HUMA ANBREEN
(Advocate High Court)

Twentieth century set down its last sun amidst lots of pains and pleasures. Advancement of technology, media, communication, space exploration for navigation of hidden mineral resources of Mother Planet all have extended and enhanced industrialization and merchandise of goods and services. Institutions like World Trade Organization, GATT, World Bank, IMF, have given boost to Multi-national commercial transactions and the projects, which earlier were not feasible with limited resources of a single country, were carried through amalgamation of multiple accounts of different countries. This all has given rise to multiple disputes between persons and persons, associations of persons forming into companies, between companies and companies and between companies and states. Since each country is run by its own constitution and Lex Fori for each state varies to a large extent, so global transactions found a way for settlement of mega companies, disputes and that was International Arbitration. Its expedient, and somewhat cheaper aspects have made it popular and now hardly there would be an arbitration clause.

Though it is open to consenting parties to appoint mutually any person or institution to receive their references for adjudication through arbitration, but eventually, such Awards have to earn seal of the Court for execution, as well to entertain and decide objections to such arbitral awards. Here come the state laws of country to handle such awards. So long the Awards are made for the natives and filed in Courts of the same country, there is no problem, but when the contracting parties belong to different states and continents, it becomes an issue as to where such awards would be filed for the assent of the Court. Majority of such awards are satisfied through the voluntary compliance of the parties, but on some occasions a party must invoke external authority to enforce a losing party’s obligation and to collect the damages awarded.

Effective international arbitration is dependent on the parties’ success in getting the arbitral awards enforced. Owing to lack of enforcing power with arbitrators, statutes and treaties are made available to successful parties. The Geneva Protocol on Arbitration Clauses 1923 was the first effort in this context. Then the Convention of 1927 supplemented the Protocol. The third convention is the New York Convention of 1958 which simplified the procedure for recognition and enforcement of foreign arbitral awards.

Read More

GLOBALIZATION & COMPARATIVE LAW

By

INAAMUL HAQUE*

Shelley, the English poet had once, while commenting upon the pervasive influence of Greeks on the western thought and civilization, reportedly remarked: “We are all Greeks”.  One can today, justifiably paraphrase Shelley’s words by saying: “We are all globalizers”.  Globalization is indeed an all pervasive fact, a self evident reality.  The question today is not whether there should be globalization or not, but the issue is how do we manage globalization.  We cannot turn the wave of globalization.  The challenge for us is to make globalization a vehicle of opportunity and inclusion, not of fear and insecurity.

Globalization is the defining attribute of the present world. Societies and economies are becoming more and more integrated, as a “result of reduced costs of transport, lower trade barriers, faster communication of ideas, rising capital flows, and intensifying pressure for migration.” ¹ This integration is a highly complex process, affecting almost all aspects of our lives. The volume of cross border transactions is exponentially increasing and their scope and sweep are qualitatively changing. As the former World Bank President, James Wolfensohn, aptly described it:

“Globalization is about an increasingly interconnected and interdependent world; it is about international trade, investment, and finance that have been growing far faster than national incomes … It is about our global environment, communicable diseases, crime, violence, and terrorism… Globalization is about risks as well as about opportunities.” ²

Globalization is not a simple phenomenon but a multidimensional reality with a wide sweep. It is manifested in a variety of ways both positive and negative:

“The terrorist attacks on the United States on September 11 were one aspect of globalization. Rapid growth and poverty reduction in China, India and other countries that were poor 20 years ago is another. The development of the Internet and easier communication and transportation around the world is a third. The spread of AIDS is part of globalization as is the accelerated development of life-extending technologies.” ³

Read More

By
SHEIKH KHURRAM ABBAS
Advocate High Court

Ever Since the emergence of modern state system, no law is made or allowed to remain in force that conflicts directly or indirectly with the legitimate interests of state. For now, though not in distant past, states are regarded as guardians of the collective interests of the whole society they respectively bear. Accordingly, even a custom, being a primitive and still a well-recognized source of law, is not permitted to stand, on the touchstone of reasonability 1, against public policy 2 and general interests of society.

Unfortunately, in Pakistan several customs, which have lost their very reasons and are now manifestly opposed to the economic as well as political interests of the state, are still accorded all-out legal efficacy; one of those customs is that of holding “benami properties”.

This Article is an attempt to first explain the concept of benami immoveable property, the chief motives responsible for its origin and continuation, and then to shed light on its relevance to, and implications on, the politico-economic interests of Pakistan.

The term benami is of Persian origin made up of two words “be” and “nam” meaning “no name”. It etymologically means “without name”, fictitious or ostensible. In legal parlance, where a sale is effected in the name of someone other than the actual purchaser who does not desire to put in his own name but buys it in the name of someone else, the transaction is called benami 3. As for instance, A sells property to B but the sale deed mentions X as the purchaser 4. The purchaser mentioned in the sale deed is only an ostensible owner called benamidar, and the real owner is the person who actually advanced money4a but for some reasons did not disclose his own name 5.

Read More