Wednesday, March 8, 2017

Case law Nusrat bhutto vs COAS 1977

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Begum Nusrat Bhutto vs Chief of Army staff and Federation of Pakistan (PLD 1977 SC 657)

Case law, constitutional history of Pakistan, Constitutional case law
General Zia ul haq Former COAS
Case law study of constitutional history of Pak, Doctrine of necessity, kelson's theory
Begum Nusrat Bhutto


Pettioner's Case:

A petition under Art. 184(3) of the Constitution of Mr. Zulfrqar Ali Bhutto, former Prime Minister of Pakistan, and ten other leaders of the Pakistan People’s Party under Martial Law Order No. 12 of 1977.

The petition states that Mr. Zulfrqar Ali Bhutto and the ten other leaders of the Pakistan People‘s Party were arrested in the early hours of the 17th of September, 1977 and detained in various prisons in the four Provinces of Pakistan. It is stated that on the evening of the 17th of September, 1977, the Chief of the Army Staff made a public statement, in which he leveled highly unfair and incorrect allegations against the Pakistan People’s Party Government and the detenus by way of explaining away their arrest and detention. He also indicated his intention of placing the detenus before Military Courts or Tribunals for trial so as to enforce the principle of public accountability. The petition avers that this action has been taken against the detenus in a mala fide manner, with the ulterior purpose of preventing the Pakistan People’s Party from effectively participating in the forthcoming elections which were scheduled to be held during the month of October 1977.  
 

PETITIONER’S ARGUMENTS BY YAHYA BAKHTIAR  

The counsel argued:
l. Relying on Asma Jilani’s Case. 
2. Chief of the Army Staff had no authority under 1973 Constitution to impose Martial Law in the country. 
3. Such action covered by Art 6 of the Constitution of 1973 for the Constitution was still the Supreme Legal instrument even the CMLA himself had not abrogated it but merely suspended it.  
4. Order of detention is the violation of the Fundamental Rights of the detenues, particularly under Articles 9, 10, 17 and 25. 

STATE ARGUMENTS BY A.K. BROHI  

The counsel argued: 
(1) Arguments based on the Judgment of Dosso’s Case.  
(2) By proclamation of Martial Law on 5th of July, 1977, a new legal order came into force and the Constitution of 1973 successfully suspended.  
(3) The new grund-norm of the country was the Laws Continuance in Force Order.  
(4) The Military coup is a meta legal or extra constitutional fact which attracts the doctrine of “revolutionary legality”. This kind of change is called the Revolution.  
(5) If all institutions of State power have accepted the existence of the new legal order which have become effective then all questions of legality and illegality have to be determined within its framework.  
(6) As fresh elections were imminent so Martial Law was only a bridge to enable the country to return to the path of Constitution Rule.  

KELSEN’S THEORY: 

Kelson’s Theory that a successful revolution satisfies the test of efficacy and becomes a basic law creating fact is not universally accepted and it has not been found consistent for full application in all revolutionary situations coming before court for adjudication as to the validity of new Legal Orders resulting from such revolutions.  
Kelsen’s Theory is open to serious criticism on the ground that by making effectiveness of the political change as the sole condition of morality of its legality, it excludes from consideration sociological factors of morality and Justice which contribute to the acceptance or effectiveness of the new Legal Order. It must not be forgotten that the continued validity of the ground-norm has an ethical background, insofar as element of morality is built in it as part of the criterion of its validity. 
These considerations assume special importance in an ideological State like Pakistan, which was brought into being as a result of the demand of the Muslims of the Indo-Pakistan Sub-continent for the establishment of a homeland in which they could order their lives in accordance with the teachings of the Holy Quran and Sunnah. When the demand was accepted, it was given effect to by means of a Constitution passed by the British Parliament, which held sovereignty over India in 1947. In other words, the birth of Pakistan is grounded both in ideology and legality. Accordingly, a theory about law which seeks to exclude these considerations, cannot be made the binding rule of decision  in the courts of this country. 

STATE NECESSITY AND WELFARE OF PEOPLE: 

Widespread allegations of massive interference with sanctity of ballot by Government officials in favor of candidates of ruling party, national wave of resentment giving birth to country-wide protest agitation, disturbances getting out of control of civil Armed Forces and resulting in heavy loss of life and property; calling out of troops by Federal Government, consequence imposition of Local Martial Law in several important cities; requisitioning of military assistance by local authorities in smaller towns and cities not having desired result, rigging and official interference with elections in favor of ruling party candidates established by judicial decisions in some cases displaying general 
pattern of official interference; public statements of Election Commissioner concerned ratifying widespread allegations of Opposition regarding official interference with elections and endorsing demand for fresh elections; Prime Minister in circumstances offering himself to Referendum but such offer not having any impact at all and demand for his resignation and for fresh elections continuing unabated plan resultantly dropped. 

DOCTRINE OF NECESSITY:

The question of considering the application of the doctrine of necessity has obviously arisen in this case as the court is not persuaded that the military intervention provides its own legality simply for the reason that it has been accepted by the people of Pakistan, and has become effective in that sense. Even otherwise, if it is assumed that the old Constitution has been completely suppressed or destroyed, it does not follow that all the juridical concepts and notions of morality and justice have also been destroyed, simply for the reason that the new Legal Order does not mention anything about them. On the contrary, I find that the Laws (Continuance in Force) Order makes it clear that, subject to certain limitations, Pakistan is to be governed as nearly as may be in accordance with the 1973 Constitution, and all laws for the time being in force shall continue. These provisions clearly indicate that there is no intention to destroy the legal continuity of the country, as distinguished strictly from the Constitutional continuity. 

Important Questions:

Give the facts, arguments and decision in Nusrat bhutto case 1977
Explain in detail Nusrat Bhutto case.
Discuss Nusrat Bhutto's case. Nusrat Bhutto vs COAS.
Doctrine of necessity and kelson's theory.

Friday, February 10, 2017

Sources of Public International Law 1

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 Custom and Treaty as material Sources of International law


Introduction:

International law is a body of those laws governing the legal relations between nations. It has also been defined as the rules and principles of general application dealing with the conduct of nations and of international organizations and with their relations inter se, as well as with their relations with persons, whether natural or juridical. From  the Viewpoint of its sources international law is a body of consensual principles, which have evolved from customs and practices which civilized nations utilize in regulating their relationships and such customs have great moral force. Primarily, however, international customs and treaties are generally considered to be the most important sources of international law, as indicated in Article 38 of the Statute of International court of justice. Besides, there are some other sources of international law which are, mostly, indicated by international jurists. A detailed account of these sources is given below.

2. INTERNATIONAL LAW DEFINED:

International Law has been variously defined by different international jurists.
(1) As defined by Oppenheim: “Law of Nations or International Law is the name for the body of customary and treaty rules which are considered legally binding by civilized states in their intercourse with each other.
(2) As stated by G.J. Starke: “International law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and, therefore, do commonly observe in their relations with each other.”  

3. MEANING OF “SOURCE OF INTERNATIONAL LAW”: 

Source of Law connotes the origins from which particular positive laws derive their authority and coercive force; such as, customs, usages, constitutions, statutes, treaties. In another sense, the authoritative or reliable works, records, documents, edicts, etc., to which we are to look for an understanding of what constitutes the law. The same is the concept of the sources of international law. As pertinently stated by GJ.Starke: “By source of International law we mean the actual materials from which an international lawyer ascertains the rules applicable to a given situation.”  

4. MATERIAL PRINCIPAL SOURCES OF INTERNATIONAL LAW  

The Statute of the International Court of Justice The relevant provisions of this statute are as follows:
1. Article 38 (1) The Court whose function is to decide in accordance with international law such disputes as are submitted to it; shall apply: 
a) International Conventions, whether general or particular establishing rules expressly recognized by the contesting states; 
b) International customs, as evidence of a general practice accepted as law; 
c) The general principles of law recognized by civilized nations. 
d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of laws. 
2.This provision shall not prejudice the power of the Court to decide a case ex aequo et bono,(what is right and good), if the parties agree thereto. Article 59. The decision of the court has no binding force except between the parties and in respect of that particular case.

1) INTERNATIONAL CONVENTIONS AS THE MATERIAL SOURCE OF INTERNATIONAL LAW  

(a) Definition: 

International treaty is an agreement, league or contract between two or mere nations or sovereigns formerly signed by commissioners properly authorized, and solemnly ratified by the several sovereigns or the supreme power of each state. It is not only a law but also a contract between two nations and must, 1f possible, be so construed , as to give full force and effect to all its parts. 

(b) Foundation: 

International lawyers use the phrase “Pacta Sunt Servanda ” to express the fundamental principle that agreements even between sovereign states, are to be respected. 

(c) Significance: 

International treaties are not only a principal source of international legal rules but are also themselves the subject of a considerable body of international law. The law of treaties serves much the same function in the international law as the law of contracts does in municipal law. 

(d) Treaty takes priority: 

There is no doubt about the fact that treaty stipulations override rules of international customary law which are incompatible with them. This proposition received approbation in the case of S S. Wimbledon (1923), where the permanent Court of international Justice held that treaty law takes priority over international customary law. 

(e) Kinds of Treaty: 

Treaties may be divided into four kinds, which stand as follows 

(i) Law-Making Treaty 

It lays down general rules binding on the states or enunciates new general rules for the guidance of the states in future or for their future international conducts.  

(ii) Treaty Contracts  

It deals with a special matter between the contracting states only. 

(iii) Bilateral Treaty  

It is a treaty which comprises only two parties and thus, is binding only on them. This treaty, usually, constitutes a treaty contract 

(iv) Multilateral Treaty 

If there are more than two parties in a treaty it is called multilateral treaty Usually, such treaty is also referred as a law making treaty, if it contains a considerable number of states. 

(1) Some Alternative names for treaty: 

Treaties are known by a variety of differing names;  
Conventions, International agreements, Pacts, General Acts, Final Acts, Acts, Concordat, Protocol, Charters, Statutes, Declarations and Covenants. 
All these terms refer to a similar transaction, the creation of written agreement whereby the states participating bind themselves legally to act in a particular way or to set up particular relations between themselves. 
(g) Important International Treaties:
Following are some instances of the important international treaties: 
i. Treaty of Westphalia (1648) 
ii. Paris (1815) and Versailles (1899) Charters 
iii. Geneva Conventions of 1864, 1906, 1929 and 1949  
iv. Hague Conventions of 1899 and 1907 
v. Covenant of League Of Nations ( 1920) 
vi. Charter of United Nations, 1945 
vii. Rome Treaty 1998, 2002 

(2) INTERNATIONAL CUSTOMS: 

(a) Definition:

Term ‘Custom’ generally implies to habitual practice or course of action that characteristically is repeated in like circumstances. 

(b) Custom and Usage: 

In order to understand custom it is necessary to know the meaning of the word “Usage". As pertinently explained by J.G.Starke “a usage is twilight stage of custom. “Usage is a repetition of acts, and thus, differs from “custom” in that the latter is the law or general rule which arises from such repetition, while there may be usage without custom, there cannot be a custom without a usage accompanying or proceeding it. 

(1) Significance: 

Article 38 (b) of the Statue of International Court of Justice recognizes international custom, as evidence of general practice accepted as law, as one of the sources of international law. For most modern international lawyers, customary international law is alongside treaty law, one of the two central forms of international  law. 

(d) Essential Elements of International Custom: 

Following elements constitute a valid international custom: 
(i) Duration: 
No particular duration is required nor does international court emphasize the time element as such in its practice. Provided the consistency and generality of a practice are proved. 
(ii) Uniformity and Consistency: 
Substantial uniformity and consistency of practice is required for a valid custom. 
(iii) Generality of the Practice  
As rightly remarked by Brownli, certainly universality is not required but the real problem is to determine the value of abstention from protest a substantial number of states in face of a practice followed by sonic others.”  
(iv) Opinio Juris et necessitates: 
The statute of the International Court refers to a general practice accepted as law, briefly speaks of recognition by states of a certain practice “as obligatory” and Hudson requires a “conception that the practice is required by, or consistent with, prevailing international law.” Some writers do not consider this psychological element to be a requirement for the formation of a custom, but it is, in fact, a necessary ingredient. 
(e) Judicial Application of Custom: 
According to GJ. Starke, “Both national and international courts play an important role in the application of custom. Often it is claimed by one of the parties before the court that a certain rule of customary international law exists. The Court must then investigate whether or not the rule invoked before it is validly established rule of international custom and in the course of this inquiry it examines all possible materials. 

(f) Evidences (Instances) of International Customs  

As enumerated by Brownli, “The material sources of custom are very numerous and include the following.
a. Diplomatic correspondence.  
b. Policy statements. 
c. Press releases. 
d. The opinions of official legal advisers.  
e. Official manuals on legal questions, e.g., manuals of military law, executive decisions and practices, order to naval forces etc. 
f. Comments by governments on drafts produced by the International Law Commission. 
g. State legislation.  
h. International and national judicial decisions.  
i. Recitals in treaties and other international instruments.  
j. A pattern of treaties in the same form. 
k. The practice of international organs.  
l. Resolutions relating to legal questions in the United Nations General Assembly. 

Further sources shall be posted soon on this blog according to the provisions of International court of justice.

Related Questions and searches:
This Article shall answer the following questions:
Write notes on Jus Cogen and international customs.
What are principle sources  of international law?
Explain customs and treaties as material sources of international law, as per Article 38 of the statute of International court of justice.

Friday, January 27, 2017

Alteration of memorandum of association

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Alteration of memorandum of association of a corporation under company law

Legal procedure for alteration of existing memorandum of association:

Understanding of Alteration of memorandum of association,company law

1. STEPS REQUIRED FOR ALTERATION OF MEMORANDUM:

The following steps are involved in the alteration of memorandum:  
1. Preliminary discussion at broad meetings and company’s advisers to determine the best course to adopt and the precise nature of the desired alteration.
2. Where company’s shares are quoted on a stock exchange, ensure that the requirements of the exchange are fully and well understood and complied with. 
3. Prior consultation with some of the large shareholders, creditors and the debenture-holders to ensure, so far as possible, that the proposed change will be adopted. 
4. Can any matter be settled beforehand with the registrar, e.g whether a new name will meet with his approval. 
5. Printing of notice of general meeting explanatory circulars etc.
6. Routine of convening and holding necessary meeting arrangements with the press, filing of copies of special resolution. 
7. Whether new share certificates are to be issued or old certificates are to be called in for alteration. 
8. The printing of resolution required to be annexed to the memorandum and to be registered with the registrar.

2. Alteration of memorandum of association of a business corporation GENERALLY:

According to Section 20, a company cannot alter the condition contained in its memorandum except in the cases and in the mode and to the extent for which express provision is made by law. A company subject to the provision of the Ordinance, may by Special resolution, alter the conditions contained in its memorandum so as to: 
a. Change the place of this registered office from one provision to another or from one city or town in a provinces to another, or from a part of Pakistan not forming part of a province to a province or vice versa, or
b. With respect to the objects of the company, Section 21. The company is empowered to change any of the clauses contained in its memorandum, provided the legal formalities are fulfilled, namely:
(a) Name clause 
(b) Situation of registered office clause. 
(c) Objects clause. 
(d) Limitation of liability clause.  
(e) Capital clause. 
(f) Subscription clause cannot be changed. ,  
Any clause in the memorandum can be changed by the following procedure: 

(1) Change of Name Clause:

A company can change its name by the following procedure:  
a. Special resolution: A special resolution is required to be passed by the 
shareholders. 
b. Approval of registrar: After passing a special resolution, a copy of resolution in writing is sent to the Registrar for approval  
c. Registration of change of name: Where a company changes its name the registrar enters the new name on the register in place of former name.  
d. Issuance of new certificate: After entering the new name on the register in place of the former name, the registrar issues a new certificate of incorporation to meet the circumstances of the case. On the issuance of new certificate, the change of name shall be complete.

(2) Change of Registered Office Clause:

A company can shift its registered office from one place to another place within 
the same city, town or village or from one province to another province. 
(a) From place to place: A company can change the place of its registered office from one place to another place within the same province or from Islamabad Capital Territory to the Province of Punjab or from Punjab to Islamabad Capital Territory by fulfilling the following formalities:  
i. Special resolution: The shareholders pass a special resolution to change the place of the registered office. 
ii. Intimation to registrar: A copy of special resolution passed by the shareholders is sent to the registrar for information. 
(b) From province to province: A company can shift the place of its registered office, from one province to another or from a part of Pakistan not forming a part of a Province to a Province by fulfilling the following formalities: 
i. Special resolution: A special resolution is required to be passed by the shareholders. 
ii. Confirmation by authority: A copy of special resolution passed by the shareholders is required to be confirmed by the Corporate Law Authority. 
iii. Intimation to registrar: If the alteration is confirmed by the authority a copy of authority’s order confirming the alteration along with the altered Memorandum, shall be filed with the registrars of both the places.

(3) Change of Objects Clause:

A company can change its objects clause for the following purposes:
To run the business with economy and efficiency.
To attain main purpose by new or improved means.
To enlarge or change the local area of operation.
To sell the whole or any part of the business of the company.
To amalgamate with any other company or body of persons.
To limit or give up any of the objects specified in the memorandum. 
To carry on some business which may be easily combined with the business of the company.
The company is required to follow the following procedure to change its objects:
a. Special resolution: A special resolution must be passed by the shareholders.  
b. Confirmation by authority: The alteration in objects must be confirmed by the 
Corporate Law Authority. 
c. Intimation to registrar: A copy of the Authority's order confirming the alteration, along with the printed copy of the altered memorandum, shall be filed by the company with the registrar for intimation.

(4) Change of Liability Clause: 

No change can be made in this clause so as to make the liability of members unlimited. Section 34 provides that the liability of the members cannot be increased without their consent. It lays down that a member cannot, by altering the memorandum or articles, be made responsible to take more shares unless he agrees to do so in writing.

(5) Change of Capital Clause: 

A limited company can alter the capital clause by the following procedure: 
a. Alternation of capital: A limited company can alter the capital clause in any of the following ways: 
i. It may increase its share capital by issuance of new shares. 
ii. It may consolidate and divide its share capital into shares of a larger amount. 
iii. It may sub-divide its shares into shares of smaller amount. 
iv. It may cancel shares which have not been taken up.
The procedure for alteration of capital is as under:
(i) Special resolution: The company must pass a special resolution in the general meeting to alter the share capital in any of the above ways. 
(ii) Intimation to registrar: The company shall give notice of the above alterations to the registrar. 
b. Reduction of capital: A company limited by shares, may reduce its share capital in any of the following ways:  
i. By extinguishing or reducing the liability of members for uncalled capital. 
ii. By paying off any paid-up capital which is in excess of the needs of the company. 
The procedure for reducing is as under:
(i) Special resolution: The company must pass a special resolution for reduction of capital. 
(ii) Confirmation by Court: The company must apply to the Court for an order continuing the reduction. 
(iii) Intimation to registrar: The company shall give notice of the above alteration to the registrar. 
c. Change of subscription clause: 
The subscription clause cannot be changed at all. This clause contains the names of the persons who sign the memorandum at the time of incorporation of the company. But later on, the death of subscriber leaves no effect on the life of company because it attains a separate entity after registration. As a result, the change has no effect on subscription clause.

Questions:

What procedure is adopted for alteration of memorandum of association under company law?
In what respect memorandum of association can be altered?

This Article includes the following:

Alteration of memorandum of association under Companies ordinance.
Alteration of capital clause of memorandum of association
Alteration of object clause.
Alteration of name clause.