Procedure of Divorce in Pakistan – Part I (Khula)

26 January 2014

*This post is one in a series of posts regarding divorce (talaq/khula) in Pakistan. This post provides information primarily for “Khula” (a woman’s right of divorce under law). The remaining part of the series shall deal with (1) Procedure of Talaq by a Husband; (2) Property of the Wife after Divorce; and (3) Miscellaneous provisions re harassment by the spouse/family after divorce, overseas parties, drafting the suit for divorce and re-marriage.

Procedure of Divorce in Pakistan – Part I (Khula)

1. Marriage can be dissolved by:

(1) divorce by the husband at his will without any intervention of the Court (i.e. “Talaaq”).

(2) by the mutual consent of the husband and wife and without the need for intervention of the Court;

(3) by the wife in exercise of her contractual right of divorce (i.e “Khula”); or

(4) by the judicial intervention of the Court on the application of either party.

If delegated such right in the Nikkahnama, a wife can divorce the husband, such right is called a Talak-e-Tafweez (i.e delegated powers of divorce). Husband may delegate right to divorce while contracting marriage in the Nikkahnama.

2. “Khula” is:

Khula is the contractual right of a woman to seek a divorce from her husband in Islam for compensation (usually monetary) paid back to the husband from the wife. Khula allows a woman to initiate a divorce through the mutual consent of the husband or a judicial decree.

A woman seeks Khula while man gives a Talaq.

3. What grounds are available to seek Khula:

Under Section 3 of the Dissolution of Muslim Marriages Act, 1939 (the “Act”):

A woman shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:

(i) that the whereabouts of the husband have not been known for a period of four (4) years;

(ii) that the husband has neglected or has filed to provide for her maintenance for a period of two (2) years;

(ii-a) that the husband has taken an additional wife;

(iii) that the husband has been sentenced to imprisonment for a period of seven (7) years or more;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three (3) years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two (2) years or is suffering from leprosy or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen (16) years, repudiated the marriage before attaining the age of eighteen (18) years:

Provided that the marriage was not consummated;

(viii) that the husband treats her with cruelty (defined under the Act and includes verbal abuse, psychological ill-treatment, physical abuse, cheating, forcing her to lead an immoral life, disposing off of her property, obstructing her religious practise etc);

(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law.

4. Procedure to obtain Khula:

(1) The wife may enforce her right of Khula if such right is relegated under the marriage contract (the “Nikkahnama”).

(2) If she is not delegated the right of divorce in her Nikahnama, then she could apply for Khula in the Court.

In filing a suit for dissolution of marriage, the Court issues notice to the opposite party i.e. the husband and if he fails to appear after the due process of posting and publication the Court can proceed with the case ex-parte (without him) and pass a decree (an order).

In case where the husband or his representative appear, he is required to file a written statement following which the Court has to fix a date for pre-trial proceedings for reconciliation. If reconciliation fails, the Court will pass decree for dissolution of marriage.

After obtaining Khula decree from the Court, the wife would need to file an application before the Chairman, Arbitration Council/Union Council of that jurisdiction for obtaining the certificate for the dissolution of marriage.

5. Filing of the divorce:

A divorce is filed where the marriage has taken place or where the marriage was registered; i.e. where the defendant is residing. The wife may also file a case at the place where she ordinarily resides.

Disclaimer: The above information is not legal advice but basic guidelines in respect of Khula in Pakistan. Each case is decided/evaluated/prepared in accordance with the individual/unique facts of the case. Nothing provided herein should be used as a substitute for advice of competent counsel.

______________________

Myra Khan Qureshi 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

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Registering Trade marks in Pakistan

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15 January 2014

An important aspect in starting up a business or protecting an on-going concern is registering its trade mark.

A. Benefits

The benefits of registering a trade mark are abundant:

(1) Registering your trade mark gives you the exclusive right to use your mark for the goods and/or services that it covers in Pakistan.

(2) If you have a registered trade mark you can prevent others from using it without your permission.

(3) A registered trade mark:

(a) makes it much easier for you to take legal action against anyone who uses your trade mark without your permission;

(b) allows the authorities to bring criminal charges against counterfeiters if they use your trade mark;

(c) is your property, which means you can sell it, franchise it or let other people have a licence that allows them to use it.

B. Registration

1. The registration of trade marks in Pakistan is governed by the Trade Marks Ordinance, 2001 (the “Ordinance”) and the Trade Marks Rules, 2004 (the “Rules”).

2. The fee for an application for registration of trade mark “for a specification of goods or services included in one class” is Rs. 2000/- (Rupees Two thousand only) alongwith the corresponding form TM-1 (available online).

3. Process of Registration of Trade Mark.

(1) What is a trade mark: “Trade mark” is defined in Section 2 (xlvii) of the Ordinance as:

any mark capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from these of other undertakings;

(2) Application: The application for registration shall include:

(a) a request for registration of a trade mark;

(b) full name and address of the applicant;

(c) a statement of goods or services in relation to which it is sought to register the trade mark:

(d) international classification of goods or services;

(e) a representation of the trade mark; and

(f) full name address and contact details of agent, in case the application, on behalf of the applicant, if made by his agent.

The application must state that the trade mark is being used with a bona fide intention and be subject to the payment of an application fee.

(3) Registrar: The Registrar shall examine, inform or reject the application for registration (Section 27).

(4) Journal: As soon as the application is accepted by the Registrar, it is advertised on the Trade marks Journal for acceptance (Section 28).

(5) Opposition: A person may oppose the registration in accordance with the Ordinance (i.e. if the applicant is not the proprietor of the trademark or the trademark is identical or similar to another trademark etc.) and the Registrar shall then allow both parties to address their concerns.

(6) Certificate of Registration: Where an application has been accepted and no notice of opposition has been received or the opposition has been disposed and the fee prescribed has been paid then the Registrar shall register the trade mark under the Ordinance (Section 33), and issue a certificate of registration from the Trade Marks Registry.

Disclaimer: The above information is not legal advice but basic guidelines in respect of registration of trade marks in Pakistan. Nothing provided herein should be used as a substitute for advice of competent counsel.

______________________

Myra Khan Qureshi 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

Setting up a Company in Pakistan

9 January 2014

Private Limited Companies (“Companies”) in Pakistan are set up under the Companies Ordinance, 1984 (to download complete act: http://www.secp.gov.pk/corporatelaws/pdf/Comp_Ord1984.pdf) and are regulated by the Securities and Exchange Commission of Pakistan (the “SECP”) (www.secp.gov.pk).

The process to set up a Company in Pakistan is fairly straightforward. It is prudent, however, to consult a legal professional in this matter but the following information will provide basic guidelines in respect of setting up / incorporation/ registration:

1. Name of the Company.

(1) Choose a name for the Company.

(2) The SECP does not allow names that are inappropriate, deceptive or designed to exploit or offend the religious susceptibilities or identical nor similar to the name of an existing company.

(3) There are certain words that are prohibited from being part of the name of the Company (http://www.secp.gov.pk/ns/pdf/Prohibited_words.pdf).

(4) The validity and the availability of the proposed name of the Company can be checked on http://www.secp.gov.pk/ns/index.asp, the e-service provided by the SECP.

(5) The Company is required to obtain a name availability certificate from the SECP. The application fee for this is Rs. 200 (Rupees Two Hundred Only) for online applications and Rs. 500 (Rupees Five Hundred Only) for offline applications. SECP shall then issue a certificate re availability and validity of proposed name of the Company.

(The abovementioned amounts are as presently confirmed by SECP and are subject to change. The amounts must be re-confirmed at a date prior to the submission of the application fee.)

2. Share Capital of the Company

(1) Decide the authorized capital or share capital of the Company. The capital of the Company is the total investment made in the Company.

(2) Registration fee of the Company (to be given to the SECP) is based on the total share capital. The Fee Calculator provided by the SECP e-services (http://www.secp.gov.pk/ns/CalculatorCS.asp) is a helpful tool in this regard.

3. Incorporation Documents

(1) Copies of Computerized National Identity Cards (“CNICs”) of each subscriber (or “Shareholder”) of the Company.

(2) Four (4) printed copies of the Memorandum of Association and Articles of Association of the Company.

The Memorandum of Association (the “Memorandum”) is the document that provides that the details of the Company and the activities that it is authorized to undertake. It governs the relationship of the Company with the outside world. The Object Clause of the Memorandum (the operative clause in respect of what the Company is authorized to do) is usually drafted to include all those tasks and activities that the Company may wish to / foresee that it shall undertake and all other tasks ancillary thereof.   

The Articles of Association (the “Articles”) provides the details of the everyday running of the Company like election of directors, audit of accounts, annual general meetings, notices etc. It specifies the regulations for a company’s operations and lays out how tasks are to be accomplished within the organization.

The Memorandum and Articles are crucial, foundation documents of the Company and should be prepared / reviewed meticulously.

(3) Form I, the declaration of the applicant for incorporation.

(4) Form 21, the notice of the situation of the registered office of the Company.

(5) Form 29, the particulars of the directors, chief executive, company secretary etc.

(The abovementioned Forms are available for download at http://www.secp.gov.pk/forms.asp)

(6) The original paid challan evidencing the payment of fee in any of authorized branches of MCB Bank Limited.

(7)  The authorization of the Shareholders in favor of a person to correct the deficiencies, if any, pointed out by the Registrar in any documents submitted for incorporation/registration.

4. Submission to SECP

(1) The documents once submitted to SECP may take between seven (7) to fourteen (14) days for scrutiny and review.

(2) Any mistake/omission found shall be informed to the requisite person who shall be required to re-submit the documents after correcting /amending the mistake or providing the necessary information as intimated by the SECP.

(3) If the documents are in order the SECP shall issue an incorporation certificate reflecting the incorporation of the Company and the permission to commence business.

Disclaimer: The above information is not legal advice but basic guidelines to help in understanding the process of setting up a company in Pakistan. Nothing provided herein should be used as a substitute for advice of competent counsel.

______________________

Myra Khan Qureshi 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

Inheritance under Shia Law in Pakistan

7 January 2014

The Mahomaden Law (the “Law”) is divided into two (2) branches: Sunni law (Fiqah Hanafi) and Shia Law (Fiqah Jafariah).

Shia Law of Inheritance divides legal heirs into three (3) divisions, that is, Group 1- Parents, children and their lineal descendants, Group 2- Grandparents and Siblings, and, Group 3- Paternal and Maternal uncles and aunts of the deceased (Section 88 of the Law).

From amongst all heirs, a member of Group 1 shall always have the first right of inheritance, excluding the second and third class of heirs and similarly the second class of heirs shall succeed the third class in the right to inherit.

Illustratively, if a Shia Mahomedan dies leaving a daughter’s son (grandson), a father’s mother (grandmother (dadi)) and a full brother. The daughter’s son will succeed to the inheritance in preference to the father’s mother and the full brother. On the other hand, if a Shia Mahomedan dies leaving his parents, a daughter, a son’s son (grandson), a brother and a paternal uncle; the first four relations (parents, a daughter, a son’s son (grandson), a brother), belonging to the first class, shall be eligible to inherit.

However, as the daughter and son’s son belong to the second degree of Class 1, the daughter being nearer in degree shall exclude the grandson from inheriting the property of the deceased. This is known as the doctrine of exclusion.

1. Rights of Heirs

For a clearer understanding, below is a table, summarizing the right/share of the heirs of Group 1 to the estate of a deceased under Shia Law:

     HEIR

SHARE

1. Husband

1/4 (where there is a lineal descendant)

OR

1/2 (otherwise)

2. Wife

1/8 (where there is a lineal descendant)

OR

1/4 (otherwise)

3. Father

1/6

4. Mother

1/6 (where there is a lineal descendant)

OR

1/3 (in other cases)

5. Son

All/ Residuary (where no daughter)

OR

Double of daughters

6.  One Daughter

1/2 (where no son)

OR

½ of the share of son

7. Two Daughters (collectively)

2/3

8. Grand Children (only where all children have predeceased the testator)

Portion of their parents.

2. Transfer of Property

The Registrar of Properties in the area of Pakistan where the property is situated records all transfers. Courts look at the names on the records of the Building Control Authorities, Local Government (City Government), Excise and Taxation (Property Taxes) and Utility Companies to determine the legal ownership of inherited property in Pakistan.

3. Competent Court

The competent court to handle property and inheritance is the court of the last domicile of the deceased. If this is contested, or unknown, then the judiciary depends on where the property is located. For property located in Pakistan, a Civil District Court, or a High Court, is competent to handle inheritance issues.

4. Challenge of Gifts by Heirs

A Pakistani Muslim can freely give away any personal property before death. No one, including the legitimate heirs, can challenge this decision after the death of the donor.

Disclaimer: The above information is not legal advice as legal advice must be tailored to the specific circumstances of each case. Nothing provided herein should be used as a substitute for advice of competent counsel.

______________________

Myra Khan Qureshi 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

Custody of Children under the laws of Pakistan

6 January 2014

I’m getting a divorce, what about my child?

I can fully support my child, how do I get custody?

I don’t want him seeing my baby anymore, is that possible?

She isn’t a good mother! How do I keep her away from my son?

(Answers provided hereinbelow)

The increasing statistics of divorce in Pakistan are often blamed on various socio-economic factors that have changed over the past few decades. Education, independence, exposure (specially access to the internet) and upbringing are all factors that appear to have had an effect on the choices that married couples make.

The discussion surrounding divorce, and the reasons/factors thereof, is unending. The important question is what happens after the end of a marriage, specially when children are involved.

The following post is to provide basic guidelines in respect of custody of children, a decision that often haunts most parents even beyond the decision they have to take for themselves.

1. The most important aspect for the courts in Pakistan, by and large, remains what would be the best interest and welfare of the child (see, Karisma Bibi vs. Additional District Judge Attock, 2009 YLR 1522).

2. Father: Under Islamic law, a father is the natural guardian (al waley) of his children’s persons and property. Section 359 of the Muhammadan Law provides:

359. Legal guardians of property- The following persons are entitled in the order mentioned below to be the guardians of the property of the minor:-

(1) the father;

(2) the executor appointed by the father’s will;

(3) the father’s father; and

(4) the executor appointed by the will of the father’s father.

As per the aforementioned, the legal guardianship of property of a minor is primarily vested in the father of the minor. The father may also appoint an executor to act as the guardian of the property of his infant child by will. According to Shari’a, a child’s paternal grandfather is his or her natural guardian after the father.

3. Mother: A mother, generally, has a right to physical, not legal, custody of her child until the child reaches the age of custodial transfer, at which time the child is returned to the physical custody of the father or the father’s family. Section 352 of the Muhammadan Law provides:

352. Right of mother to custody of infant children.- The mother is entitled to the custody of (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.

4. The right to physical custody is not an absolute right in the sense that a mother or father who possesses physical custody may not prevent the other parent from seeing the child.

5. The father or mother seeking custody must have reached majority and must be sane. He or she must also be capable of raising the child, looking after its interests, and protecting its physical and moral interests. Aside from these basic requirements, there are specific requirements based on the welfare of a child (see, for information, Jamal J. Nasir, The Islamic Law of Personal Status (1990)).

Hope this information provides some guidance in trying times. It is, however, prudent to still consult (even if on a preliminary basis) a lawyer, experienced in family matters, in such cases.

Aggrieved parties (the persons seeking a divorce/custody or their families) often apprehend the reaction(s) of society, family, friend and other (uninvolved) third parties and refuse to seek professional help and assistance that a lawyer can provide. Such apprehensions cause irreparable damage and a consistent tug-of-war between the parties (and usually their families). For the best interests of the child (or children) and the parties, it is advisable to instead attempt to resolve all outstanding issues at the initial stages and prevent any recurring disputes to ensue.

Please note that lawyers and professional consultants are bound by a duty of confidentiality with their clients and are obligated to protect any disclosure / information received by them in the course of duty. You may re-iterate that in the meeting with your consultant (see, Muhammad Ahsan vs. Altaf Hussain, 2000 YLR 1102 (Karachi)).

The response to the frequently asked questions is as follows:

Q. I’m getting a divorce, what about my child?

A. You can file an application for the custody of your child. Courts are most inclined to decide in the best interest of the child depending on the facts of your case.

Q. I can fully support my child, how do I get custody?

A. The well-being of your child is by and large the most important aspect for the courts. Responding to the emotional, physical and social needs of the child give great anchor support to your application/case.

Q. I don’t want him seeing my baby anymore, is that possible?

A. A mother, generally, has a right to physical, not legal, custody of her child until the child reaches puberty after which the child is returned to the physical custody of the father or the father’s family. The above is standard practice unless the applicant can provide evidence to that court that the welfare of the child lay in his/her custody remaining with the mother (see, Karisma Bibi vs. Additional District Judge Attock, 2009 YLR 1522 Lahore).

She isn’t a good mother! How do I keep her away from my son?

A. The father is the natural guardian (al waley) of his children’s persons and property. Courts usually prefer the child remaining with the mother until puberty unless the same can be refuted by evidence to the contrary provided by the father.

Create your future from your future, not your past. – Werner Erhard

Disclaimer: The above information is not legal advice as legal advice must be tailored to the specific circumstances of each case. Nothing provided herein should be used as a substitute for advice of competent counsel.

______________________

Myra Khan Qureshi 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

Khyber Pakhtunkhwa (KPK) – More Than Just A Pretty Face

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4 January 2014

The Dynamic Model: Khyber Pakhtunkhwa Right to Information Act, 2013

With the inclusion of Article 19A in the Constitution, the right to information was constitutionally acknowledged as a fundamental right instead of just a statutory right as provided by the earlier legislations.

In September 2013, the Khyber Pakhtunkhwa (“KPK”) Assembly passed the Khyber Pakhtunkhwa Right to Information Act, 2013 (the “RTI-KPK”), which meets all the standards of effective right to information legislation such as maximum disclosure (Sections 3, 5 and 7); minimal exemptions (Section 14); minimum cost for the requested information (Section 13); and disclosure taking precedence over exemption without providing a blanket exemption in any particular case. The law provides that even if the information pertains to categories of exempted information, there should be a strong presumption for disclosure if the information exposes corruption, criminal wrongdoing, other serious breaches of the law, human rights abuse, or serious harm to public safety or the environment (Section 14(e)). Section 3 provides that no requester shall be denied access to any information or record and that the RTI-KPK shall be interpreted so as to advance the purposes of the RTI-KPK and facilitate the disclosure of information at the lowest reasonable cost.

Under Section 24, the Government shall within a period of one hundred and twenty (120) days, establish an Information Commission under the RTI-KPK. The Information Commission shall be an independent body which enjoys operations and administrative autonomy from any other person or entity, including the Government or its agencies (Section 24(2)). The functions of the Information Commission shall be primarily to receive and decide on complaints (Section 25(1)) and perform all tasks that are necessary to do the same (Section 25(2)).

Section 26 provides the Information Commission with all, direct or incidental, powers that are necessary to undertake the functions as provided by the RTI-KPK including compliance with the law. The Information Commission shall, inter alia, have the power to (1) hold, acquire and dispose of property; (2) to conduct inquires, and have the powers of a Civil Court under the Code of Civil Procedure, 1908; (3) order a public body to disclose information (Section 26 (3)(a)), impose a fine on any official who willfully acts to obstruct any activity under the RTI-KPK (Section 26 (3)(b)).

Under Section 28 of the RTI-KPK, it is a criminal offence to (a) willfully obstruct access to any record with a view to prevent the exercise of a right, (b) obstruct the performance by a public body, (c) interfere with the work of the Information Commission, or (d) destroy a record without lawful authority. Anyone committing such an offence is liable to a fine or imprisonment (Section 28(2)).

There is an obligation on public bodies under Section 4 of the RTI-KPK to ensure that its records are properly maintained so as to enable compliance with the RTI-KPK and any relevant rules or standards established by the Information Commission. Section 5 provides the categories of information that shall be duly published by public bodies in an up-to-date fashion and a manner that ensures accessibility to all. Section 5(2) enforces a greater obligation on public bodies to publish an annual report highlighting what they have done to implement their obligations under the RTI-KPK and detailed information about the requests received and how they have processed them. This annual report is forwarded to the Chief Secretary, KPK and to the Information Commission to take such actions as they deem fit. This promotes transparency in the system and encourages the authorities to provide access to information. Section 8 provides that “all reasonable steps” shall be taken to assist any requester who needs assistance.

The applicability of the RTI-KPK is wide in scope applying to government departments, the legislature, chief minister/governor secretariat, lower courts, private bodies funded by government and private bodies providing public services (Section 3 and 2(i)).

As per Section 13(1), an applicant does not have to deposit any fee for submitting an information request. The applicant can submit a hand written application or send email queries to the head of concerned department (or to the Information Officer once designated) (Section 7(3)). Information Officers must help citizens in meeting requests without inquiring about the reason for requesting information (Section 7(5)). The concerned department is bound to provide information within ten (10) working days (Section 11(1)). For matters of life and liberty, information must be provided within two (2) working days (Section 11(3)).

Another unique provision of the RTI-KPK is in respect of whistleblowers (Section 30). No action can be taken against a whistleblower who brings to light the internal wrongdoings 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.

Whereas, the provincial legislation merely mirrored the complacent and lackluster approach of the federal legislation, the RTI-KPK provides a dynamic model for greater access to information.

The RTI-KPK has received great accolades around the world and is acclaimed as holding a high position in the global right to information law rankings. Experts at the World Bank have appreciated this move and note that the legislation contains “all the features that are vital for a strong right to information law”.

Acknowledgment: The above research was included in the Paper presented at the First Asia Pacific International Colloquium on Environmental Rule of Law organized by the United Nations Environmental Programme (UNEP), and held in  Kuala Lumpur, Malaysia, on  11-12 December 2013 by Dr. Parvez Hassan (B.A. (Punjab), LL.B. (Punjab), LL.M. (Yale), S.J.D. (Harvard), Senior Advocate, Supreme Court of Pakistan, Senior Partner, Hassan & Hassan (Advocates), Lahore, and President, Pakistan Environmental Law Association)

______________________

Myra Khan Qureshi 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

Human Rights under the Constitution of Pakistan

4 January 2014

Human Rights in Pakistan have come a long way. When the National Assembly of Pakistan undertook the drafting of the Constitution in the early 1970’s, it was inevitable that it could not be oblivious to the international trends towards strengthening Rule of Law in domestic regimes. Influenced by these developments, at the regional and international level and, undoubtedly, by national experiences, the 1973 Constitution made a commendable commitment to the declaration and protection of a broad range of fundamental rights covering the right to life, safeguards against arrest and deletion, right to dignity, freedom of movement, freedom of association and assembly, freedom of trade, business, or profession, freedom of speech and freedom to profess religion, and the right to acquire, hold and dispose of property. Equality of citizens and provisions on non-discrimination are also included in the Fundamental Rights.

For this post, we will briefly evaluate the right of Freedom of Information in light of the provisions of the Constitution of Pakistan.

Freedom of Information and the Constitution of Pakistan

Article 19A was inserted in the Constitution of Pakistan, 1973 (the “Constitution”) by Section 7 of the Constitution (Eighteenth Amendment) Act, 2010:

7. Insertion of new Article in the Constitution:

In the Constitution, after Article 19, the following new Article shall be inserted, namely:

“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.”

Similarly, the Eighteenth Amendment also added Article 10A on the right to a fair trial and due process:

10A. Right to fair trial.—For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.

Article 19A confers on all citizens a right to have access to information in all matters of public importance, subject, however, first to regulations and secondly to reasonable restrictions by law.

This right would be essential for a fair trial and due process guaranteed by Article 10A. Non-framing of the regulations cannot have the effect of rendering the right under Article 19A as nugatory. Therefore, even if no regulations are framed, this right is available to all the citizens. In the absence of regulations and in the absence of restrictions, the court is required to determine whether a request for information in a particular case or a denial of information in a particular case is reasonable or with lawful authority or not. But the Article also provides that it must be in “matters of public importance”. Accordingly, it must be a matter in which the public at large or at least a substantial section of population is interested (see, Muhammad Masood Butt vs. S.M. Corporation (Pvt.) Limited, PLD 2011 Karachi 177).

Acknowledgment: The above is part of the research conducted for the Paper presented at the First Asia Pacific International Colloquium on Environmental Rule of Law organized by the United Nations Environmental Programme (UNEP), and held in  Kuala Lumpur, Malaysia, on  11-12 December 2013 by Dr. Parvez Hassan (B.A. (Punjab), LL.B. (Punjab), LL.M. (Yale), S.J.D. (Harvard), Senior Advocate, Supreme Court of Pakistan, Senior Partner, Hassan & Hassan (Advocates), Lahore, and President, Pakistan Environmental Law Association)

______________________

Myra Khan Qureshi 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