Good news or is it? Sindh passes Maternity Benefits Act.

The Provincial Assembly of Sindh, in a robust show of progress and enlightenment, has passed the Maternity Law Benefits Act, 2018 (“Act”) to provide much-needed “safeguards to working women’s maternity benefits, proper nursing of new born, to maintain job security” and other matters.

“Day Care facility” has been defined in Section 2(a) as a “place designed for supervised day time of pre-school children’s care within the premises where a woman works providing care and recreating facilities to the child”.

Importantly, “Employers” is defined, in Section 2(c) to include “a person or business that employs one or more people for wages or salaries and includes (a) the Government Organisations; (b) Private Organisation (sic); (c) Semi-Government Organisation”.

“Maternity Benefits” are defined in Section 2(g) as “the payment, mandatory leave ad other benefits prescribed in the Act”.

The Act requires mandatory maternal leave to a working woman, four (4) weeks (one (1) month) before the expected date of delivery and twelve (12) weeks (three (3) months) after the delivery.

The Act recognizes additional maternity leave for those who have suffered miscarriages, still-born births, premature delivery or other medical complications (Section 4).

All women who have worked for a “continuous period of one year preceding the date of her expected delivery” are entitled to receive the benefits under the Act (Section 5).

A working woman is required to inform her employer through a written application twelve (12) weeks (i.e. three (3) months) before the expected date of delivery. This is usually a difficult decision for expectant mothers as they fear that core projects or assignments may be taken away from them due to the disclosure of their expectant state.

The Employer is require to pay the employee the same amount of salary during the period of maternity leave as they received prior to the same (Section 7) and in the event of the death of a woman, the Employer is required to pay 10% of her monthly salary for the number of years she has worked for the organisation to the legal heirs (Section 8). The Act, in this regard, could have expanded the responsibilities of the Employer in Section 7 by providing that the Employer is required to chart/recognize the position and growth of the expectant employee and protect the same during the time the Employee is on maternal leave. A working mother should expect to come back to the same position that she has held prior to her maternity and to expect the same kind of growth and benefits. The premise of the Act should be to protect the working mother instead of, begrudgingly, “allowing” her a salary.

However, an important step forward is Section 10 which requires the mandatory providing of a Day Care Facility to “every organisation employing 10% or more employees”. There appears to be a typographical error in Section 10 which seems to provide that a Day Care Facility is a mandatory requirement to ever organisation employing 10% or more female employees. Section 9 permits four (4) “nursing breaks” to the women employees per day.

Section 11 on penalties is hastily drafted and does not provide for any penalties but instead recognizes what would deem to be a failure under the Act. Moreover, Section 12 provides for aggrieved women to file a complaint regaining the commission of an offence to a court of “competent jurisdiction”. The mechanism and redressal of such grievance is not provided.

The Act is available at: http://sindhlaws.gov.pk/setup/publications/PUB-18-000045.pdf

Although the Act leaves much for working women to desire, it appears to be a step forward in recognizing the value of women in the workplace and the requirement of protecting such women. The Act leaves various loopholes for Employers to slip through and no provisions require or recognize the quality of work, the well-being of the women employees, the standard of facilities provided or the redressal of complaints.

The Act may become a starting point for discussion and progress and enable some, very impassioned persons to bring claims, but, in its present state, it remains lacklustre.

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Myra Khan is a Bar-at-Law from the Honourable Society of Lincoln’s Inn and Ex-Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Karachi, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

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Karachi hospitals and the resistance to providing emergency services

The recent case of the passing of ten year old Amal Umer has devastated the city. A case of the absolute failure of the system was highlighted by Amal’s mother in her heartbreaking article titled “How the system failed us” in Dawn, on 16 September 2018.

In her article she has demanded accountability and justice and in her pain she has sought the change in the system so as to ensure that no person, especially child, suffers the way hers did. This is an attempt to recognize her struggle, research the law and rights of citizens and highlight the shortfalls of the system.

I. Law

1. Following the Constitution (Eighteenth Amendment) Act, 2010 (the law commonly referred to as the 18th Amendment), the topic of health was significantly devolved from the Federal Ministry to the provincial governments. However, unlike other devolved matters, health remained a controversial one with the Federal Ministry continuing to retain control over certain matters instead of a clear devolution to the provincial governments.

2. The involvement of the police in deaths resulting from criminal activity (including road accidents) in Karachi is regulated by the Sindh Police.

3. In 2014, following a number of deaths on the roads of Karachi due to the increase in street crimes, the Sindh Provincial Assembly passed the robust Sindh Injured Persons (Medical Aid) Act, 2014 (the “Sindh Medical Act”). The salient features of the Sindh Medical Act included, amongst others, that if an injured person is brought to a government hospital recognized by the government as having emergency facilities (not all hospitals), he/she shall be provided medical aid without delay on priority basis over all other medico-legal formalities (Section 3). Moreover, no police official shall be permitted to “interrupt or interfere during the period an injured person is under treatment in a hospital except with the written permission of the incharge of the hospital” (Section 4). This permission was also restricted to such cases where it was “necessary in connection with an investigation which may be carried out in the hospital so long as the injured person is under treatment”.

The Sindh Medical Act provided, unequivocally, that “an injured person shall not be shifted from a hospital until he is stabilized or the requisite treatment is not available in such hospital and while shifting him to another hospital, the doctor concerned shall complete the relevant documents with regard to the clinical conditions of the patient and handover such documents to the concerned doctor of the receiving hospital” (Section 6(1)). Section 6(2) provided that if it was necessary to shift an injured person, such person “shall not be shifted unless he is accompanied by a doctor of the referring hospital” (proviso to Section 6(2)).

4. In addition to the above the Sindh Medical Act provided for the protection of good Samaritans that brought strangers in for medical care. This appears to endeavor to encourage bystanders to assist in emergencies without the fear that they will be harassed and interrogated upon arrival at the hospital. Section 9 provides that “a person who brings an injured person to a hospital on humanitarian basis, in particular in traffic accident cases, shall not be harassed and shall be shown due respect and acknowledged for helping the injured. He shall be allowed to leave the hospital…” after relevant details have been noted by the hospital.

5. The penalty under this legislation amounted to imprisonment, a fine or both and provided further that “the court may direct the Pakistan Medical and Dental Council… to cancel the registration of a doctor convicted by the court” (Section 11).

6. The issue with the Sindh Medical Act is that it only applies to such government hospitals that have been notified by the Sindh Government as having facilities to deal with emergencies. So far it appears there are three (3) hospitals that have been so notified, JPMC, Civil Hospital, and Abbasi Shaheed Hospital. All other hospitals, including private hospitals, are encouraged to but not bound by the abovementioned legislation.

7. These hospitals, however, are, generally, bound by the Code of Ethics for Medical Practitioners issued by the Pakistan Medical and Dental Council (“Ethics Code”) but the Ethics Code is not law. It provides for the general principles of humanitarian duties and care and provides that a physician is under a duty to “give emergency care as a humanitarian duty unless he is assured that others are willing and able to give such care” (Article 4(e)). The same is true of the Oath of Medical Practitioners which includes the promotion of good values and humanitarian duties. It, again, does not have the force of law.

II. Matters to Consider

1. There is a requirement of medico-legal services preceding emergency care provided by a hospital which often results in delayed or refused medical care due to the hesitation of the hospitals to get involved with the long and burdensome procedure of the police and other authorities.

2. There is a shortage of staff trained for medico-legal services and it is often handed over to junior doctors and trainees. Moreover, as per the law, only female medico-legal officers can check female patients reducing the number of services available.

3. The lack of ambulance services and the lack of regulatory control over the ambulance services available. There are no specific certifications or reporting requirements on companies providing emergency services and therefore, no accountability when they fail to provide the same.

4. The lack of accountability of medical practitioners.

5. The lack of successful litigation against medical practitioners.

6. The inability of the authorities to maintain a strict register of medical practitioners(private and government).

7. There is no monitor or checks and balances over certified medical practitioners and therefore, no fear of any regulatory penalties such as revocation of certificate to practice, fines etc.

8. The lack of road and traffic regulations regulating the path of ambulance services if the ambulance services respond to the emergency call.

9. The freedom of private hospitals to run as businesses rejecting emergency services or patients with low mortality.

10. A lack of checks and balances on the facilities offered by all hospitals; i.e. how many ventilators, staff, doctors, etc.

11. No accountability when a hospital transfers or orders transfer of a terminal or emergency patient to another hospital.

12. The lack of standard procedure, policies, regulations on private or semi-government hospitals.

III. Recommendations (immediate)

1. There is a dire need for the restructuring of the hospital business in Karachi.

2. The Sindh Medical Act can be used as an effective model for a similar law/regulation affecting private hospitals that should need to comply with certain basic standards of performance to remain certified as hospitals and permitted to dispense medical care.

3. The dire need to restructure road and traffic laws to make it mandatory for traffic to make way for emergency vehicles. Such amendments were approved to the Motor Vehicles Ordinance, 1965 in the Sindh Cabinet Meeting in May, 2018. So far this has not been gazetted. Beyond the reform in legislation, the implementation of the road laws by the traffic police will remain a challenge and should be pursued on a priority. The importance of the “Golden Hour” of successfully taking an emergency patient to the hospital has been recognized by various international studies.

4. Laws and regulations with respect to ambulance service providing companies. There should be a minimum requirement of the certifications/licenses received by such companies that they will comply with the best international standards of running an ambulance service, will report the responses/rejections made, will maintain a record of call-center services that receive emergency calls, will have the basic requirements of sustaining an emergency case until it reaches the hospital etc. The ambulance companies should be held to a higher standard of care and accountability.

5. With respect to licensing of doctors, the requirements are available in Pakistan but there is not much credence given to these. Like developed countries, doctors should be required undertake regular training on how to best respond in emergency cases and be held accountable to the actions taken by them under such circumstances.

6. Awareness programs should be conducted on a regular basis to highlight stories like Amal’s, to understand the failures of the system and to ensure that they are not repeated.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Karachi, Pakistan.

Article 2: Islam to be state religion

Constitution Series – I

Discussion on important Articles of the Constitution of Pakistan, 1973 as amended (“Constitution”)

Topic for Discussion:

Article 2: Islam to be state religion.

I. History:

It is interesting to note that the Article under discussion was not part of the Constitution at the time of partition when the constitution of India was tweaked to form the constitution of the newly founded Pakistan. There were references, however, to Islam and the importance thereof, stemming from the Two Nation Theory and the use of Islam as a catalyst to achieve partition of India. It is noteworthy that Jinnah, an eloquent and competent lawyer, did not attempt at even a basic draft of the constitution of the newly founded state, nor firmly set the ground of a secular or Islamic state.

We are all very aware of his oft-quoted speech to the first Constituent Assembly on 11 August 1947. He is quoted to have said:

“You are free; you are free to go to your temples, you are free to go to your mosques or to any other place of worship in this state of Pakistan. You may belong to any religion or caste or creed, that has nothing to do with the business of the state. … We are starting with this fundamental principle that we are all citizens, and equal citizens, of one state.”

It appears that the state Jinnah envisaged seemed to be one where “religion” would have “nothing to do with the business of the state”. Though, contrarily, Jinnah never confirmed the involvement or non-involvement of religion in the affairs of the state; whether this was due to lack of foresight or an attempt to recognize the sacrifice of the muslim majority pouring into Pakistan from India, is a matter for academics to debate and beyond the scope of this discussion.

An interesting anecdote in this regard was recalled by Mr. Yasser Latif Hamdani in his article titled “Religion under our constitution” in the Daily Times, 1 November 2014:

“As a member of the Viceroy’s Council, Jinnah, the founding father of this country, had argued in favour of the bill to allow members of different communities to marry each other without compulsorily renouncing their links with their parent community. When a law member of the council objected on the grounds that this would be un-Islamic, Jinnah opined that as a matter of policy the legislature had the right to overrule religious and customary laws where necessary or where it is a matter of public policy.”

The topic, and recognition, of Islam as a state religion, did not enter the houses of parliament up until 1962. Further along, the separation of Bangladesh sparked the debate around religion with an increased fervor. Muslim brothers had separated from Muslim brothers. The ideology that a separate state needs to be created for the Muslims came under threat. There was a separate state created, why could the Muslim brothers not live peacefully in it? The fragility of internal institutions and the involvement of outside forces is a matter of constant debate but the ideology, nevertheless, took the hit. The 1973 Constitution, as it stands today, appeared to be the carrot that the then Bhutto-led government had to hand over to the religious parties, eager to be part of the state salad. With the appropriate amendments, the 1973 Constitution included, in letter, the involvement of the religion in the state but retained its state-supreme abilities such as: (i) the laws would be made by the parliament and the parliament would be elected by the general will of the citizens of Pakistan, all citizens, irrespective of “religion, creed and caste”; (ii) the interpreters of such laws would be the Supreme Court of Pakistan and not a religious body; and (iii) the freedom to practice religion, any religion, as a citizen of Pakistan. Theory is, however, very different from practice.

II. Implications of Article 2

Article 2 appears in the introductory part of the Constitution, distinguishable from the next part on “Fundamental Rights”. It may be argued that Article 2 is a direction to the Constitution and how the citizens of Pakistan are encouraged (not forced) to live their lives. They are basic principles on good values instead of an enforcement of a way of life.

The jurisprudence of the courts, in this regard, from 1970 onwards, show a general trend of the environment of the country. The judgments range from discussing it as a way of life or an emphasis on the principles of natural justice to a harsher and stricter implementation of the same.

Today, the legal mechanism of the country is prepared to instantaneously recognize a law abhorrent to Article 2 and strike it down. Article 227 of the Constitution, read with Article 228 of the Constitution, provide, unequivocally that “all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah” and “no law shall be enacted which is repugnant to such injunctions”. Moreover, Article 228 constituted the Islamic Council whose functions involve making recommendations and advising the parliamentary bodies, the assemblies, governors and the President on how to bring the laws within the injunctions of Islam.

Additionally, the injunctions of Islam are preserved in various other important laws as well, such as inter alia, in the criminality of alcohol and blasphemy laws, marriage, family and custody laws, inheritance laws, property laws, etc.

Due to Article 40 of the Constitution, the foreign affairs of Pakistan are also affected by the injunctions of Islam, in that, the state shall “shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means.”

Arguably, the controversial Article 62 and 63, also find their basis in the Islamic influence of the Constitution.

With the inclusion of the Objectives Resolution in the Constitution vide Article 2A, the principles of Islam were reinforced as an essential, albeit introductory, component of the Constitution. Certain resolutions are stated herein below to give a synopsis of what the annexure entails:

“Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust;

…. Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;

Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah…”

III. Courts interpretation of Article 2 of the Constitution

  1. The trends of the jurisprudence of the courts have remained fluid in the discussion of Article 2 of the Constitution, a few examples are provided to understand the variety of views of the courts:

(1) In PLD 1976 Lahore 930, the courts held that the courts could enforce only basic judicial principles and concepts of Islam where permissible by the Constitution but the entire way of life as envisaged by Islam cannot be enforced by the courts;

(2) In PLD 1983 Supreme Court 457, the courts held that the injunctions of Islam were only used as emphasis of the principles of natural justice and used as the principle of “due process” is used in the American Constitution. Article 2 was not a fundamental right as it only embodies the rule of law and cannot be used to invalidate a law but only to invalidate an action which does not have the sanction of law.

The Supreme Court in this case further held that Article 2 was not at par with Article 6 in so far as it places limitation on power of legislature to legislate so as to deprive a person of his life, liberty and property.

(3) In 1997 MLD 229 (Lahore), the Lahore High Court held that this Article being a substantive part of the Constitution, certainly has meaning, purpose and practical utility and “is singularly different from an empty slogan”. The purpose is to declare unequivocally that in the State of Pakistan, the Islamic way of life shall be following and that it shall be governing in accordance with the Islamic Sharia.

(4) The Lahore High Court in 1997 PCRLJ 1437 Lahore seemed to equate it with the general good principles of life and held that laws that promote immorality and vices are neither valid nor permissible.

(5) The Supreme Court, in PLD 1998 Supreme Court 388, held that Articles 2, 2A and 227 of the Constitution have given Islamic character to the Constitution by fully securing the independence of the judiciary and by providing that all existing laws should be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah.

  1. The superior courts have remained fluid in their discussion of Article 2 and have either held that Article 2 merely introduces a good way of life or, conversely that it is the controlling provision for all the laws of the land. A study of the laws of the land suggests that in certain matters such as family, inheritance, marriage, custody, murder, rape (and other criminal provisions), the injunctions of Islam are supreme with limited involvement of the legislators. There have also been times in the history of Pakistan where the Islamic provisions of the Constitution have been held as the justification for certain diplomatic and foreign relations. In any case, a purview of history suggests that the involvement of religion is a marked diversion of the supposed (and contested) secular notion of the newly founded state in 1947; there are many academics who suggest that the involvement of religion was foreseen if not deliberately included in the affairs of the state.

With the recent, uncontested, dismissal of Dr. Atif Mian, it seems that the influence of religion is rooted in the internal workings of the state wherein even an outspoken, and valiant attempt by a democratically elected government could not sustain the pressure and had to succumb to it.

Companies Ordinance, 2016 – The progression of the companies law from 1984 to 2016

The Government has, in November 2016, promulgated the Companies Ordinance, 2016 replacing the Companies Ordinance, 1984. After various seminars, conferences, expert groups, discussions and debates, the Companies Ordinance, 2016 (the “2016 Ordinance”) was drafted, debated and promulgated. The new law encourages a movement towards simplifying certain procedures, enabling greater use of technology, and encouraging a paperless record keeping environment.

The constitution for companies and the backbone legislation for the economy has experienced a cardinal shift. The salient changes to the legislation are provided below and will be revised accordingly; the history of the law and the analysis and discussion on the projected effect will follow in a subsequent post.

  1. Classification of Companies as provided by Section 224 and the Third Schedule of the 2016 Ordinance.

The Third Schedule provides for Public Interest Companies and Large Sized Companies (“PILSCs”), Medium Sized Companies (“MSCs”); and Small Sized Companies (“SSCs”). Small Sized Companies, for example, shall include private companies having (1) paid up capital up to Rs. 10 million; (2) turnover not exceeding Rs. 100 million; or (3) employees not more than 250.

The classification of a company shall be based on the previous year’s audited financial statements and can be changed if it does not fall under the previous criteria for two consecutive years.

Special provisions are provided to facilitate small and medium companies.

The 2016 Ordinance also provides for relaxations for Free-Zone Companies (Section 454) and the establishment of an Investor Education and Awareness Fund (Section 245). The 2016 Ordinance further provides for companies that are “Inactive Companies” to seek such status from the registrar to avail limited procedural and accounting requirements (Section 424).

Moreover, the 2016 Ordinance provides for streamlining lengthy processes by introducing an efficient dispute resolution mechanism through the Mediation and Conciliation Panel (Section 276), passing of members’ resolution by circulation and simplified provisions for Mergers and Acquisitions.

  1. Memorandum of Association

The 2016 Ordinance requires that companies engage in such business that is the “principal line of business” (Section 26) to reduce the issues related to the doctrine of ultra vires whereby the company undertakes acts that are beyond its scope of work or powers. The principal line of business shall be mentioned in the memorandum of association or notified to the registrar.

  1. Conversion of Shares into Electronic Format.

Electronic or “demat” form is the concept of dematerialization in finance and financial law and refers to the substitution of paper-form securities by book-entry securities. This is a form of an indirect holding system which is used as an intermediary, such as a broker or a central securities depository and holds the records of the ownership of the shares in an electronic format. The Central Depository System in Pakistan, established under the Central Depositories Act, 1997 has a similar system of electronic filing, record and transfer for and of securities.

  1. Special provisions for Independent and Non-Executive Directors (Section 166).

The 2016 Ordinance provides for the inclusion of independent directors and non-executive directors on the Board including provisions for the manner of selection and maintenance of the data bank of such directors.

  1. Increased provisions for Disclosure of Directors, and Beneficial Owners and Increased Transparency by local and foreign companies.

The 2016 Ordinance provides for increased disclosure by companies to the regulatory. It further provides for the companies to maintain a Companies’ Global Register of Beneficial Ownership (Section 452) for every substantial shareholder or officer of a company incorporated under the 2016 Ordinance, having ten percent (10%) or more shares in a foreign company or body corporate.

There is increased regulatory control vis-à-vis fraud, terrorist or corrupt financing, and money laundering.

  1. Certificate of Shariah Compliance.

Section 451 enables companies to seek for a Shariah compliance certificate from the Securities and Exchange Commission of Pakistan. No company shall be permitted to be called “Shariah compliant” unless it is conducting business according to the principles of Shariah and has been so certified by the Commission.

  1. Agriculture Promotion Companies (Section 457).

The 2016 Ordinance enables the registration of agriculture promotion companies for the development and enabling of the agriculture sector.

  1. Table of Fees, amended, to be Paid to the Registrar.

The Seventh Schedule updates the Table of Fees to be paid to the Registrar (Section 462 and 469).

Protection of Women Against Violence – New bill passed by the Punjab Assembly

On 25 February 2016, the Provincial Assembly of Punjab passed the Punjab Protection of Women Against Violence Bill, 2015 (the “Protection Bill”).

Q. What is it?

The Protection Bill aims to make a “special provision for the protection of women”, “to protect women against violence including domestic violence, to establish a protection system for effective service delivery to women victims and to create an enabling environment to encourage and facilitate women freely to play their desired role in the society, and to provide for ancillary matters”.

Q. What is domestic violence?

Section 2 (h) defines “domestic violence” as:

the violence committed by the defendant with whom the aggrieved is living or has lived in a house when they are related to each other by consanguinity, marriage or adoption;

Section 2 (r) defines “violence” as:

any offence committed against a woman including abetment of an offence, domestic violence, emotional, psychological and verbal abuse, economic abuse, stalking or a cybercrime;

Q. What are the other key definitions of the Protection Bill?

The following definitions, in Section 2, are key:

(a) “aggrieved person” means a woman who has been subjected to violence by a defendant;

(e) “dependent child” means a child who is below the age of twelve years of age and includes any adopted, step or foster child;

(j) “house” includes a place where the aggrieved person lives in a domestic relationship irrespective of right to ownership or possession of the aggrieved person, defendant or joint family;

Q. What are the plans for implementation?

For implementation, Section 3 provides that the Government shall, amongst others:

(a) institute (establish) a universal toll free dial-in-number for the aggrieved persons;

(b) establish Protection Centres and shelter homes under a phased programme;

(c) appoint necessary staff at a Protection Centre for mediation and reconciliation between the parties, rescue, medical examination, medical and psychological treatment and legal help of the aggrieved persons and proper investigation of offences committed against aggrieved persons;

(d) raise awareness about the issues involving women and the requirements of protection and relief of the aggrieved persons.

Q. What steps should be taken to seek protection and what happens then?

1. The aggrieved person, or any other person authorized by the aggrieved, or a Women Protection Officer, appointed under Section 14 of the Protection Bill, may submit a complaint for obtaining a protection, residence or monetary order for the aggrieved.

2. The relevant court shall be (1) where the aggrieved resides or carries on business; (2) where the defendant resides and carries on business; (3) where the aggrieved and the defendant last resided together.

3. The court shall then start proceedings not more than seven (7) days of the date of receipt of the complaint by the court.

4. The defendant shall be notified to show cause (appear in court) within seven (7) days. If a defendant fails to respond within the specific time, the court shall, subject to another notice to the defendant, assume that the defendant has no plausible defense and proceed to pass such order as the court deems fit.

Q. How will the court protect the victim.

1. Protective Order: If the court is satisfied that any violence has been committed, or is likely to be committed, the court may pass a protection order in favour of the aggrieved person and direct the defendant to, inter alia, not communicate with the victim, stay away from the victim, stay at a particular distance from the victim, wear an ankle or wrist GPS tracker to track the movement of the defendant at all hours, surrender any weapons, refrain from entering the place of employment of the victim, refrain from causing or aiding or abetting any act of violence; and/or refrain from committing such acts as may be specified in the protection order.

2. Residence Order: In the event of domestic violence, the court may pass a residence order directing that, inter alia, the victim shall not be evicted from the house, the victim has the right to stay in the house, the defendant shall not sell or transfer the house to any person other than the victim, the victim may be relocated to a shelter home (established under Section 13 of the Protection Bill), and/or the victim be relocated to some alternative accommodation.

3. Monetary Order: The court may also pass a monetary order ordering the defendant to pay monetary relief to meet the expenses incurred and losses suffered by the defendant which may include, inter alia, loss of earning, medical expense, damages for destruction of property, and/or maintenance of the victim and her dependent children.

Q. Where does the aggrieved person go during proceedings?

Under Section 5 of the Protection Bill, the victim shall not be evicted from the house without her consent.

Q. What are some of the shortfalls of the Protection Bill?

Some shortfalls are:

  1. The offender, it appears, can only be a person who is known to the victim by consanguinity, marriage, or adoption and does not cover such relations that the victim may have to face on a day to day but do not fall within this category, such as relatives-in-law.
  2. The legislation only provides for domestic violence against women; whereas, men may also be victims of domestic violence.
  3. The stringent timelines in the Protection Bill places a heavy burden on the courts without any mechanism of assistance to the courts.
  4. The requirement to consistently monitor protection officers to ensure that such officers do not add to the distress and instead handle issues with care, empathy, and efficiency.
  5. Regular training to the toll-free number representatives to ensure that they are able to provide advice in a quick and efficient manner, respect anonymity, and are available round the clock.
  6. The legislation does not cover dowry and the culpability of giving or receiving the same. The analogous legislation in India, Protection of Women from Domestic Violence Act, 2005, criminalized the offence of giving and receiving dowry.
  7. The need for mechanisms to ensure that this legislation is not misused, for example, verbal abuse is a wide term to report violence. Such mechanisms, though, should not be at the cost of restricting, reserving or downplaying genuine cases of violence against women and should not give too much discretion to the reporting officers.
  8. Custody of children should have been included in the legislation to ensure that the victim is not deprived of full right to her children.
  9. The legislation appears to have the limited scope of civil instead of (the more preferable) criminal law. Criminal sanctions (arrest and imprisonment) require a further offense by the accused respondent (such as violating a protection order issued under this law). This may, however, be a deliberate factor of the legislators to ensure quick and flexible relief for the victim.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and (ex) Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

Whistleblower Protection in Pakistan

A whistleblower is a person who raises concern or awareness about a wrongdoing in their workplace, either state or private. 

In the recent years, with the testimonies of Edward Snowden (an American computer professional, former CIA and US Government employee who copied classified information from the United States National Security Agency (the “NSA”) in 2013 without prior authorization. This information revealed numerous global surveillance progams and brought the issue of privacy, security and surveillance to global discussion), Julian Assange (the founder of Wikileaks that publishes secret information, news leaks, and classified media from anonymous sources), and Bradley Manning (a US army officer who disclosed information to Wikileaks), whistleblowing has become a much discussed topic receiving equal amounts of support and opposition.

Whistleblowing, however, has been practiced for centuries. From the Ramayana, where Vibhishan, younger brother of the King of Lanka, Ravana, informs Ram about the whereabouts of Sita, the consort of Ram, to the Watergate scandal that toppled the presidency of Richard Nixon on the information provided by a secret informant known as Deep Throat (revealed in 2005 as Mark Felt). Whistleblowing has grave consequences for the accused and the accuser. The whistleblower, though seemingly working for the greater good, is oft seen as dangerous and misguided (e.g. why did he have to make the information public, why didn’t he use the correct mechanisms) and forced to live either in hiding, never revealing his identity, or in exile.

In Pakistan, there is no specific legislation on whistleblower protection on a Federal level. Within the provinces, only Khyber Pakhtunkhwa, vide the Khyber Pakhtunkhwa Right to Information Act, 2013 (the “KPK 2013 Act”), provisions for the protection of whistleblowers (Section 30). Section 30 of the KPK 2013 Act provides for protection of whistleblowers as follows:

30. Whistleblowers.—(1) No one may be subject to any legal, administrative or employment related sanction, regardless of any breach of a legal or employment obligation, for releasing information on wrongdoing, or which would disclose a serious threat to health, safety or the environment, as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment.

(2) For purposes of sub-section (1), wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body.

The other provinces also have similar acts: Punjab has the Right to Information Act, 2013; Balochistan has enacted the Freedom of Information Act, 2005; and Sindh has enacted the Sindh Freedom of Information Act, 2006 (collectively referred to as the “Acts”). However, there is no provision in the Acts which is analogous to Section 30 of the KPK 2013 Act or provides for protection of whistleblowers.

The fate of whistleblowers is, therefore, left to the jurors deciding each case upon its facts. The following factors act as a deterrent against whistleblowing:

  1. Red-tapism; no outcome of the complaint made using the correct procedures, if any, available.
  2. Defences, such as national security, interest of the state, and confidentiality obligations, argued, usually successfully, by the accused.
  3. No procedure for the protection of the identity of the whistleblower.

The Eighteenth Amendment to the Constitution of Pakistan, 1973, with the insertion of Article 19A, allowed citizens the right to have access to information in all matters of public importance. The Eighteenth Amendment was an attempt to bring information “in all matters of public importance” to the public sphere. Public bodies, officials, institutions were now required to record, store and be accountable for the information used and processed by them. Unfortunately, the Eighteenth Amendment was qualified with the proviso “subject to regulation and reasonable restrictions imposed by law” that resulted in curtailing the rights of citizens. The proviso provided an opening for the holders of information to restrict access. The only remedy available to citizens seeking information under Article 19A is challenging any refusal in the courts which include the usual issues with court proceedings, i.e. years of litigation, costs, waste of time, etc.

The text of Article 19A is as follows:

19A. Right to information.−Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Rights of Employees: Employed Directly or through an Independent Contractor

28 December 2015

In the recent years, many multinational companies and other companies have “outsourced” the workings of the department of human resources. This means that the company hires and fires employees through a middle-company, the independent contractor. Usually, the remuneration of such “contracted” employees is also agreed and disbursed by the independent contractor. The advantage for doing so for the company is that it does not assume any liability on the part of the employee. Therefore, the company protects itself from the benefits that are usually provided to the employee.

When such cases reach the courts of Pakistan, due to some grievance of the employee, the company regrets any responsibility on the defence that such employee was the employee of the independent contractor and not the company.

The courts of Pakistan deliberate on the status of the employee, whether of the company or the independent contractor, when such employee falls within the definition of “workman” under the dominant labour laws such as the provincially adopted Industrial Relations Ordinance and the Industrial Relations (Standing Orders) Ordinance. However, any employee employed in a supervisory role or such employee that is expected to use creativity, imagination, intellect, skill, know-how or generally apply his mind to the assignments, does not fall within the definition of a workman. Therefore, employees employed in multinationals or such companies would usually fall outside the ambit of the definition of “workman”.

The rights of the employees are then limited to the contractual terms and conditions agreed with either the employer or the independent contractor.

Notably, the concept of “independent contractor“, as defined in the laws of United Kingdom, United States of America, and other (Western) jurisdictions is different from the concept in Pakistan. The jurisprudence in Pakistan has not yet evolved to define independent contractor as separate from an employee, outside the definition of workman. The definition of independent contractor remains limited as, what appears to be, a sub-section of those employees defined as “workman”.

Although the considerations applied when determining the status of a workman as a worker of the company or an independent contractor may be applied to the status of an employee (who is not a workman), but these considerations have, as yet, not been incorporated in the precedents set by the superior courts of Pakistan.

Such considerations include: (1) technical and administrative control over the employee; (2) the decisions re hiring, firing, remuneration and other benefits, the employees; (3) the involvement of the employee in the company; (4) that the employee works in a department that would constitute the principal organ of the company; (5) the machines, equipment, and raw material belong to the company; and the department is controlled by the supervisors of the company; (6) the company benefits from the performance of the employees functions; (7) the employee is integrated into the company; (8) the reality of the contract with the employee.

If the above considerations are present in the relationship between the employer and employee, whether hired directly or through an independent contractor, such employee is deemed to be an employee of the company and not the independent contractor.

For all employees, not protected as “workman” under the labour laws of Pakistan, the contract with the employer is the most important document and establishes the rights of the employee with the employer.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com