Publications

๐‰๐ฎ๐๐ข๐œ๐ข๐š๐ฅ ๐ƒ๐ž๐ฅ๐š๐ฒ ๐ข๐ง ๐ƒ๐ข๐ฌ๐ฉ๐จ๐ฌ๐š๐ฅ ๐จ๐Ÿ ๐‚๐š๐ฌ๐ž๐ฌ ๐š๐ง๐ ๐ข๐ญ๐ฌ ๐’๐จ๐ฅ๐ฎ๐ญ๐ข๐จ๐ง ๐๐ฒ ๐”๐ฆ๐ž๐ซ ๐ˆ๐ฃ๐š๐ณ ๐†๐ข๐ฅ๐š๐ง๐ข, ๐€๐๐ฏ๐จ๐œ๐š๐ญ๐ž ๐’๐ฎ๐ฉ๐ซ๐ž๐ฆ๐ž ๐‚๐จ๐ฎ๐ซ๐ญ

๐‰๐ฎ๐๐ข๐œ๐ข๐š๐ฅ ๐ƒ๐ž๐ฅ๐š๐ฒ ๐ข๐ง ๐ƒ๐ข๐ฌ๐ฉ๐จ๐ฌ๐š๐ฅ ๐จ๐Ÿ ๐‚๐š๐ฌ๐ž๐ฌ ๐š๐ง๐ ๐ข๐ญ๐ฌ ๐’๐จ๐ฅ๐ฎ๐ญ๐ข๐จ๐ง ๐๐ฒ ๐”๐ฆ๐ž๐ซ ๐ˆ๐ฃ๐š๐ณ ๐†๐ข๐ฅ๐š๐ง๐ข, ๐€๐๐ฏ๐จ๐œ๐š๐ญ๐ž ๐’๐ฎ๐ฉ๐ซ๐ž๐ฆ๐ž ๐‚๐จ๐ฎ๐ซ๐ญ Why does judicial delay happen? Who benefits, and who lose? How can it be fixed. There are the questions which our Partner Umer Ijaz Gilani has addressed in a policy paper recently published. At the cross-section of social science and law, this paper explores an alternative hypothesis about judicial delay and proposes a novel solution for dealing with it. We would welcome comment both from experts in law reform and economics.   https://pide.org.pk/research/reflections-on-the-political-economy-of-judicial-delay-in-pakistan/

๐‰๐ฎ๐๐ข๐œ๐ข๐š๐ฅ ๐ƒ๐ž๐ฅ๐š๐ฒ ๐ข๐ง ๐ƒ๐ข๐ฌ๐ฉ๐จ๐ฌ๐š๐ฅ ๐จ๐Ÿ ๐‚๐š๐ฌ๐ž๐ฌ ๐š๐ง๐ ๐ข๐ญ๐ฌ ๐’๐จ๐ฅ๐ฎ๐ญ๐ข๐จ๐ง ๐๐ฒ ๐”๐ฆ๐ž๐ซ ๐ˆ๐ฃ๐š๐ณ ๐†๐ข๐ฅ๐š๐ง๐ข, ๐€๐๐ฏ๐จ๐œ๐š๐ญ๐ž ๐’๐ฎ๐ฉ๐ซ๐ž๐ฆ๐ž ๐‚๐จ๐ฎ๐ซ๐ญ Read More ยป

New Delhi’s Stand Against Hague

Our esteemed Partner, Mr. Jehanzeb Durrani, who possesses rare expertise in international law, has published an article, New Delhi’s Stand Against Hague, on the Indus Water Treaty and recent legal battles in The News: It is important for India and Pakistan to strengthen their cooperation and communication around the Indus Water Treaty. “Earlier this month, the Permanent Court of Arbitration (PCA) in The Hague confirmed its competence and jurisdiction over disputes related to two of Indiaโ€™s controversial hydroelectric projects: the 330-MW Kishenganga and the 850-MW Ratle, situated on the Jhelum and Chenab Rivers. Under the provisions of the Indus Water Treaty reached in 1960, the waters of these western rivers and the Indus were allocated to Pakistan. Conversely, the control over the three โ€œeastern riversโ€ โ€” the Beas, Ravi and Sutlej โ€” was given to India. India is obligated under the IWT to ensure an uninterrupted flow of the western riversโ€™ waters to Pakistan, with interference permitted only for limited purposes, which include domestic, non-consumptive, agricultural uses and hydroelectric power generation. However, any utilisation for hydroelectric power generation must neither disrupt the volume of water reaching Pakistan nor alter the natural timing of the flow. The recent unanimous decision by the Permanent Court of Arbitration (PCA), established under Article IX (5) of the IWT, dismissed all objections raised by India regarding the proceedings on the aforementioned hydroelectric projects. This provoked a substantial reaction from New Delhi, as clearly reflected in a statement from their Ministry of External Affairs. The statement contested the establishment of the Court of Arbitration, claiming that it contradicts the IWTโ€™s provisions, and insisted that India cannot be compelled to recognise or participate in proceedings it deems โ€œillegal.โ€ Historically, and in this instance as well, India has described Indus River System issues as โ€œtechnical mattersโ€ rather than disputes, favouring neutral expert forums for resolution. This perspective arises from Indiaโ€™s contention that the IWT is fundamentally a technical agreement, designed to tackle technical issues and furnish technical solutions. This implies that as long as Indiaโ€™s project designs adhere to the IWTโ€™s technical parameters, it can arguably initiate an unlimited number of projects without any obligation to share the underlying reasoning for such developments with Pakistan. The concern for Pakistan extends beyond the technical aspects of these projects. The wider strategic ramifications associated with water security, which are influenced by the political dynamics surrounding Indiaโ€™s upstream projects and the escalating challenges posed by climate change, are of primary concern. This apprehension is not unfounded. Statements from Indiaโ€™s senior political leaders amplify these worries. For instance, Nitin Gadkari, the minister for road transport and highways, tweeted in 2019: โ€œWe will divert water from these rivers and supply it to our people in Jammu and Kashmir and the Punjab.โ€ Prime Minister Narendra Modi declared in the same very year that India would stop the flow of โ€œevery dropโ€ of water from the Ravi, Sutlej, and Beas rivers into Pakistan, underscores this concern. Therefore, the forum of a neutral expert, preferred by India, may not be adequate to address Pakistanโ€™s apprehensions, which extend beyond mere technical details to include geopolitical and national security aspects. Indiaโ€™s strong reaction to the PCAโ€™s decision could arguably stem from the far-reaching implications this ruling might have. The decision marks the initiation of the next phase of proceedings, set to grapple with broader interpretations and applications of the treatyโ€™s provisions. A particular point of contention is the interpretation of the treatyโ€™s Annexure D. The PCA ruling represents a significant turning point. For the first time in the 62-year history of the treaty, it paves the way for a comprehensive review of the agreement. Moreover, it opens the possibility for fresh interpretations.ย  India claims that this annexure justifies extensive hydroelectric construction on the western rivers, as it lists projects India plans to construct or complete, without limiting their number. However, accepting this interpretation may grant India excessive control over these waters, jeopardising Pakistanโ€™s rightful share, an outcome likely unforeseen by the treatyโ€™s original drafters and arguably against the treatyโ€™s spirit of water resource sharing. Furthermore, the proceedings will also assess the legal implications of past decisions made by various dispute resolution bodies, including the role of the neutral expert in the Baglihar Dam case. John Briscoe, the senior water advisor for the World Bank during the Baglihar case, observed that the neutral expertโ€™s findings, being purely technical, overlooked the realities of India-Pakistan dynamics. This oversight enabled India to manipulate upstream flows and launch numerous projects on the western rivers, bypassing Pakistanโ€™s strategic concerns. Given these experiences, Pakistan now leans towards comprehensive interpretation forums like the PCA rather than neutral experts. Therefore, the PCAโ€™s ruling represents a significant turning point. For the first time in the 62-year history of the treaty, there is a way for a comprehensive review of the agreement. Moreover, it opens the possibility for fresh interpretations that align with the evolving norms of international law to be utilised in interpreting the IWT. Invoking Annexure G and Paragraph 29 of the IWT, it becomes clear that the PCA may employ customary international law as a guiding principle for treaty interpretation. This provision suggests that if an interpretive need arises, international conventions recognised by the parties, as well as customary international law will be drawn upon. Since the enactment of the IWT in 1960, trans-boundary watercourse law and climate change law have both evolved substantially. With over 11 shared watercourse treaties and nine international legislative pieces signed since then, the PCA can now apply established environmental law principles, such as those set by the Trail Smelter arbitration, where it was ruled that a stateโ€™s resource utilisation should not cause harm to its neighbour. Furthermore, Indiaโ€™s long-standing contention โ€” that it should be allowed to construct projects using modern scientific expertise and not be constrained by six-decade-old technologies โ€” could be examined in light of the principle of state responsibility. In prior cases involving international water law, the International Court of Justice (ICJ) has typically prioritised legal

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Empirical Study of Company Courts Presentation lawandpolicychambers

Empirical Study of Company Courts Presentation

  ย  ย  ย    On 23rd June, 2023, we had the honour of presenting the findings of the 1st ever Empirical Study of Company Courts in Pakistan at a Symposium held by the SECP at Serena Hotel, Islamabad. The study was based on a scrutiny of all 98 cases instituted in the Companies Original (C.O.) jurisdiction of the Islamabad High Court. The presentation was attended by, amongst others, former Chief Justice of Pakistan Iftikhar Muhammad Chaudhary, Justice Miangul Hassan Aurangzeb, Justice Sardar Ejaz Ishaque Khan and Chairman SECP. All the stakeholders of the corporate environment present appreciated the socio-legal study which is, although a pilot study, the first one of its kind. The methodology and key findings of our study are summarized in the power point presentation below: [embeddoc url=”https://www.lawandpolicychambers.com/wp-content/uploads/2023/06/An-Empirical-study-of-the-Company-Court-Jurisdiction.pptx” viewer=”microsoft”]

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regularety lawandpolicychambers

REGULATORY ENVIRONMENT OF THE PROFESSIONS IN PAKISTAN

In this book, the author has made effort to bring forth how different professions in Pakistan run their daily business and regulate their members. The book will provide you with an exhaustive list of different professions, an overview of the governing laws of those professions i.e how a profession injects members into it;ย  how it grants licenses to the licensees; how disciplinary proceedings initiate and much more. In nut shell, the book is all about the mechanism and modus operandi of a profession in Pakistan. Click to Download

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Chief Justice Musarrat Hilali lawandpolicychambers

Chief Justice Musarrat Hilali of Peshawar High Court: An Anthology of Judgments

The elevation of Justice Musarrat Hilali to the office of Chief Justice Peshawar High Court is a historic moment. In this background, we have put together an anthology of the judgments authored by her during the last ten years. We hope this anthology, the first of its kind, would be of interest to the legal community and to the reading public alike.   Click to Download   [embeddoc url=”https://www.lawandpolicychambers.com/wp-content/uploads/2023/04/Mussarat-Hilali-Final-Book.pdf”]

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PROFILES IN JUSTICE: THE 3 NEW JUDGES OF THE SUPREME COURT OF PAKISTAN

by Umer Gilani, Muhammad Alee & Sajjad Hameed Yusufzai Earlier this week, on 24th October, 2022, the Judicial Commission of Pakistan approved the appointment of three new judges to the bench of the Supreme Court of Pakistan. Although the general public does not have any constitutionally sanctioned role in the appointment of Supreme Court judges, the representatives of the people do. The Federal Law Minister and the Attorney General of Pakistan get a chance to vote in the Judicial Commission of Pakistan; and the bi-partisan and bicameral Parliamentary Committee set up under Article 175 of the Constitution gets to vet the appointments proposed by the Judicial Commission. Since Pakistan is a democracy, in terms of constitutional theory at least, there is a case to be made in favor of sharing more information about judges of the apex court with the public. Such transparency can help increase the confidence of the citizens in the institutions concerned. This is something that should ideally be done before the nominations are made, and by those who propose the same. However, since the relevant decision-makers never share any information about judicial nominees with the public, the authors, in this article, have made a humble attempt to share the same with the reading public. We have gathered the information shared in this article through whatever was available in the public domain; in case of any factual inaccuracies, we would be happy to be corrected.   Justice Athar Minallah Out of the three judges nominated by the Judicial Commission yesterday, Justice Minallah is by far the most widely known person both within the legal community and the general public. Once appointed, he is likely to remain on the Supreme Courtโ€™s bench for approximately four years. Born in 1961, he comes from a prominent and widely respected family. His father was a senior civil servant who rose to the highest possible rank in civil service: Chief Secretary. His mother was a prominent social worker all her life who also ran for elected office. After graduating from University of Cambridge, Justice Minallah initially joined the civil service and worked in the Customs Department. Soon, however, he resigned and joined the legal profession. Together with Syed Mansoor Ali Shah and Yahya Afridi, he set up a law firm โ€˜Afridi, Shah and Minallahโ€™, which became one of Pakistan’s most successful commercial law firms at the time. Justice Minallah’s prominence as a lawyer reached its peak as he spearheaded the defence of the then Chief Justice Iftikhar Muhammad Chaudhary who had been deposed by General Musharraf. Justice Minallah was elevated as a judge of Islamabad High Court on 17.06.2014 during the tenure of former Chief Justice Tassaduq Hussain Jillani. He remained an unconfirmed judge for 2 years, an ordinately long period for a person who enjoyed a reputation for academic excellence. He was finally confirmed in May 2016, during the tenure of Justice Anwar Zaheer Jamali. Within about two of getting confirmed as a judge, on 28.11.2018, he became Chief Justice of the Islamabad High Court, an office he held for almost four years. In his 8-year tenure as a judge, Justice Minallah decided thousands of cases and has authored more than a hundred reported judgments. In a relatively short period, because of his bold and fearless judgments, he became know in all the various provinces of the country. By now, he is probably become the most widely known member of the countryโ€™s judiciary. In the lay public, his fame and visibility are comparable only to that attained by former Chief Justice Iftikhar Chaudhary, in the period after the Lawyersโ€™ Movement. His principal expertise is in the field of Pakistani constitutional law and fiscal laws. His most prominent judicial contributions include the following: Missing Persons Cases. Starting with the case of Mahera Sajid versus SHO PS Shalimar & Others (2018 CLC 1858 Islamabad), Justice Minallah has authored a series of judgments which dwell upon the constitutional responsibility of various state functionaries for committing and conniving in the crime of enforced disappearance. In the process, he had revived the once-forgotten judicial precedents related to constitutional torts.   Naval Farms Case. In his judgment in the โ€˜Naval Farms Caseโ€™, Zeenat Salim versus Pakistan Naval Farms etc. (PLD 2022 Islamabad 138), Justice Minallah has resurrected with full force the doctrine of โ€œenumerated powersโ€, one of the most basis doctrines of modern constitutionalism. He pointed out that since the statutes governing the three-Armed Forces of Pakistan do not empower them to engage in business enterprise, and since statutory bodies can only exercise enumerated powers, the entire business empire built by the military establishment is devoid of legal foundations. This principle can have serious long-term implications for the future development of Pakistani state institutions.   White Collar Crime cases. Justice Minallah remained consistently in favor of providing due process rights to accused persons. He granted bail to numerous persons accused of white-collar crime on the simple and logical ground that the object of the law is to imprison convicts, not accused persons. Perhaps the two most important judgments in this regard are reported as Amjad Mustafa Malik versus DG NAB (PLD 2021 Islamabad 266) and Sheikh Imran ul Haq versus Federation of Pakistan (PLD 2020 Islamabad 177). Since a number of persons who obtained bail on by relying on this rightsโ€™ conscious jurisprudence were political workers and journalist, these judgments often drew the ire of opposing political forces.   Digital Rights. A number of judgments in the field of digital rights won Justice Minallah worldwide fame. In 2018, in a judgment reported as CM Pak Limited versus PTA (PLD 2018 Islamabad 243), he allowed a number of petitions against telecom shutdowns and restrained the government from shutting down telecom signals, except when there was a proclamation of emergency in the country.[1] Later that year, he also passed an order restraining PTA from arbitrarily blocking websites.[2] Amongst other, the Columbia Universityโ€™s Global Freedom of Expression Initiative hailed judgments as advancements.   Citizenship Matters. Justice Minallah has authored

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EXPEDITIOUS CIVIL TRIALS: A FRESH PERSPECTIVE

by Muhammad Alee The issues that plague the legal system of Pakistan are no secret; rather, the struggle is in the search for its cure. According to a former Judge of the August Supreme Court, the average civil trial has a lifespan of 25 years, meaning thereby that a litigant must knock the doors of the entire hierarchical structure of the civil justice system to decide a moderately complex civil dispute in Pakistan โ€“ to say nothing of expecting such disposal to venture into the realm of justice. Effectively, a third of a lifetime is spend on a single civil dispute, all the way from the civil courts (โ€˜Katcheriโ€™) to the Honโ€™ble Supreme Court of Pakistan.   It is therefore logical that one of Pakistanโ€™s biggest economic woes is this dysfunctional civil justice system, which, on account of its delays and lengthy proceedings, witnesses the dispensation of justice at a snailโ€™s pace. This excessively long duration for the resolution of disputes is an unattractive feature for businesses, and only helps drive away investors, local or foreign.   It is often assumed, incorrectly, that the solution to this issue โ€“ the penultimate fixation of numerous lawyers in the past โ€“ lies in reworking and undoing the current system, and replacing it with a new civil justice system which, having taken into account the innumerable problems, will be a fresh, clean slate and a second chance at putting justice first. This view is mistaken and not just because the results promised are utopian and the task itself daunting. The answer, few would believe (and even fewer still know), already lies within our Civil Procedure.   The Code of Civil Procedure, 1908, (hereinafter referred to as โ€œthe CPCโ€) bequeathed to us by the British, is full of remedies. A recent judgment passed by the Supreme Court of Pakistan, which refers to one such remedy, has tremendous significance for resolving the aforementioned problem. While unreported, and largely escaping the attention of the legal community at large (perhaps a causal result of our stilted legal discourse), the judgment signifies the most important step in the right direction: the first one.   The judgment, titled Nausher v. Province of Punjab, etc (CA No. 1011 of 2016), directs its reader to a hidden gem, lost in this era of haste: Order XV of the CPC. The factual controversy in the case related to mutations of the suit property, located in Tehsil Mianchannu, in favor of a deceased individual. The issue as to the veracity of the impugned order in question, alleged by the appellants as lacking force due to insufficient recording of evidence, was settled by the Supreme Court of Pakistan in light of Order XV, holding that the statements of the parties along with the record of prior proceedings of the case are sufficient. Effectively, the Supreme Court held that the legality of an order passed by a Court relying on such documentary evidence as the Judge deems sufficient for adjudication is within the four corners of the law. For the litigant, such adjudication is within the four corners of justice.   Under Order XV, most necessary evidence required to adjudicate the matter can be gathered before the trial even begins. This is possible since Order XV empowers the Civil Judge to dispose the suit based on the record brought before it through pleadings of the parties and such other discovery as is conducted by the judge himself. This procedure is already followed in the High Courts in their Constitutional Jurisdiction. Without recording further evidence on the issues, the High Courts rely on the documents appended with the Petitions and the Replies (and any Applications thereafter) as part of the record, and adjudicate upon the matter without further ado. If the High Courts can dispose cases in such a manner, why not the Civil Courts?   If these pre-trial evidentiary tools are utilized, the need for trials would not arise and disputes could be disposed expeditiously and efficiently. It is pertinent to note that there is nothing new about this finding; it is a discovery, not a creation. Using the tools found within the CPC, one can find multiple solutions which would not only save time and costs, but would also open up Pakistan as an investment option for foreign and local investment based on the protection the civil legal system would provide in the shape of expeditious disposal of cases, should any such controversy arise. The socio-political and economic effects that the functioning of a civil justice system have on a nation are an underappreciated facet of the legal system. A delay in a civil dispute is not just a delay in the adjudication of the rights in question, but rather, the effect of the delay is wide and far-reaching. With this judgment of the Supreme Court of Pakistan, a new hope emerges for the speedy dispensation of civil disputes.   Courtesy of TLTP News

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Swindling Small Investors, the legal way!

by Umer Gilani & Muhammad Alee Pakistanโ€™s โ€œrooftop solar communityโ€ is up in arms and the reason behind it is a one-word amendment recently proposed by NEPRA in its own regulations โ€“ to be precise, NEPRA (Alternative & Renewable Energy) Distributed Generation and Net-Metering Regulations, 2015. The proposed amendment will change the price at which utility companies are supposed to buy power produced by rooftop solar power producers. While these excess units were previously supposed to be purchased according to the โ€œaverage power purchase priceโ€, they will now be purchased at the โ€œaverage energy purchase priceโ€, which is much lower. In numerical terms, the rate being offered to rooftop solar producers has been slashed from Rs. 19 to Rs. 9, i.e. the rate has been halved in one go. What seems, initially, like an innocuous one-word change in the rules is actually a drastic re-working of the financial feasibility of the entire rooftop solar power network in Pakistan. Like many other concerned citizens, my colleagues and I attended the public hearing conducted by NEPRA to understand the regulatorโ€™s motive behind this move. From what we could gather, the motive is something akin to โ€œwealth redistributionโ€. Chairman NEPRA argued that since the overall price of electricity in the country has sharply risen in the country, the 20,000 households and industries which had timely invested in rooftop solar are now benefiting considerably from their investment. Therefore, NEPRA feels it is only fair that these investors should now be fleeced a little and the gains should this be re-distributed to those 36 million consumers who have not been able to invest in solar panels. This logic fails on at least three grounds. Firstly, the math is quite ridiculous. According to some estimates rooftop solar generators are selling less than 20Megawatts to the national grid. This is only a tiny fraction of the countryโ€™s power basket. Whether these units are underpriced or over-priced doesnโ€™t make a big difference. It is the tariff being given to the mega-generation companies, the Independent Power Producers (IPPs), which really makes all the difference. It is astonishing that a regulator which has being approving disastrous deals with IPPs over the years has become fixated with squeezing the handful of citizen-investors who took the risk of setting up solar plants in their homes. It is a terrible waste of regulatory time and effort. Secondly, the regulator seems to have forgotten the entire point behind distributed generation and the net-metering system. The entire point behind this system was to avoid the distribution losses and line losses. Unlike mega-power generation plants which are often located hundreds of miles away from the main consumption sites, and which therefore necessitate the dissipation of power during transmission, these little power powers are located right in the middle of the sites where energy is being consumed. To equate the tariff being granted to rooftop with that tariff being given to IPP is to miss the point entirely. Finally, and most significantly, whoever proposed this amendment seems to have turned a blind eye to the legalities of the situation. It is one of the most elementary principles of administrative law in this country that vested rights cannot be taken away from citizens through legislation. This cannot be done through law and it most definitely cannot be done through a tweaking of rules, which are in the nature of delegated legislation. The bigwigs of NEPRA seemed fazed when we mentioned that the proposed amendment amounts to swindling those little investors who had signed up for solar power and obtained licenses under the then-prevailing rules. They now have a legitimate expectation that at least during the currency of the 7-year licenses the state authorities will not be able slash the price of their produce through a tweaking of the rules. The law in this regard is quite clear. It allows very limited powers to the executive in its function as a delegated legislator, restricting such legislation to prospective effect only (PLD 1964 SC 293; PLD 1963 SC 633; 1986 SCMR 1917). The Supreme Court has held that the executive authority cannot exercise its rule-making power (whether such power is to make, amend, vary or rescind) to take away vested rights of the citizens, and any change which is destructive to rights so vested is without lawful authority and of no legal effect (PLD 1970 SC 439). This protection is also extended to revisions or amendments to vested rights by way of notifications (PLD 1969 SC 430; 1986 SCMR 1917) and the Supreme Court has held that contractual obligations cannot be destroyed by retrospectively applying executive orders (1986 SCMR 1917). The truth is that the issue which the rooftop solar community is facing is not entirely peculiar to them. It is a part of the larger โ€œrule of lawโ€ issue in the country. These are a few atomized, disorganized, relatively โ€œsmallโ€ investors. They made the mistake of investing solar power and obtaining licenses for distributed generation upon the belief that the state authorities will honor their commitment. Little did they realize that in Pakistan, state authorities are accustomed to taking U-turns. The government and NEPRA canโ€™t really go back on their word insofar as the IPPs are concerned because the IPPs will take them into international arbitration, an area where Pakistani state authorities have had bitter experience. So, they are not focusing the entire exploitative energies on swindling this ragtag bunch of small investors. It is safe to say that the State has yet again failed to protect the investment of the citizens. The good thing is that unlike in the past, these small citizen-investors are in no mood to be taken for a ride. The tide of discontentment is rising and this was quite visible in the public hearing. If NEPRA doesnโ€™t change course and if the powers-that-be donโ€™t head the cries of the small citizen-investors, this tide of rage might soon find its way to the courts. Who knows what happens next!   Courtesy of The News.

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No-More-Strikes-Please lawandpolicychambers

No More Strikes, Please!

No More Strikes, Please! When terrorists struck at a local court in Charsadda on March 7, 2016, and killed more than a dozen innocent people, right inside the court premises, court-going lawyers all over Pakistan felt not only sad but personally insecure. Back in 2014, we saw something similar happen in the heart of Islamabadโ€™s district courts complex. So we know what it feels like. While it is a sad situation, the question is: what can private citizens do about something like terrorism? I suppose only the state can stop it. Quite naturally, the incident received condemnation from all over the country. In Islamabadโ€™s legal community, however, the incident triggered a heated debate about the lawyersโ€™ strikes and the legal status of this practice. Unlike terrorist strikes, the issue of lawyersโ€™ strikes is something on which the informed opinion of citizens and young lawyers can actually make a difference. In fact, it makes all the difference. Since this debate has far-reaching implications for the court system all over the country, let me recap it for the for the benefit of the wider reading public. First, a quick background about the locus of the discussion. The discussion took place on a WhatsApp forum called โ€œLaw Talksโ€, hosted by two young and ambitious Islamabad-based High Court lawyers. On this forum, more than two hundred and fifty of the cityโ€™s practicing lawyers regularly discuss legal and socio-legal issues. Immediately after the incident, the administrator of the group asked the newly-elected President of the Islamabad High Court Bar Association: โ€œWill the lawyers call a strike tomorrow against the brutal attack?โ€ Past experience had given us ample cause to expect that the answer would be โ€œYesโ€. For more than half a decade, I have personally witnessed justice being defeated in this countryโ€™s court system by its worst enemy: delay. In an op-ed I wrote recently, I pointed out that, contrary to popular opinion, shortage of judges is not the only cause behind the enormous delays encountered by litigants in our court system[1]. Itโ€™s probably not even the most significant cause. Delay is the product of a perverse legal culture which has taken hold of our community. The practice of frequent โ€œlawyersโ€™ strikesโ€ is an integral part of this culture. The figures are astounding. In the year 2014, my research concluded that the Islamabad District Bar Association had called for strike on more than 50 days of the year[2]. In such conditions, a common law system such as ours, where judges rely heavily upon lawyers, simply cannot function. Before proceeding further, let me clarify that I do not intend to vilify the bar leaders who frequently call for strikes. They, like other actors in the game, act in response to the larger institutional environment of our judicial system. The sociology of the lawyersโ€™ strikes is complex and understudied. We need to use an evidence-based method for answering the basic question: who wins and who loses from lawyersโ€™ strikes. But that discussion is for another day. Here, let us come back to the Whatsapp discussion. The thing is that after the Charsadda terrorist incident, when everyone was anticipating a call for strike โ€“ for one full court day, possibly 3 days, even a whole week โ€“ the newly elected President gave us a huge surprise: โ€œNo strike. Please pray for the deceased and condemn the terroristโ€,ย he announced on the WhatsApp group. Young lawyers flocked in support of the bar leaderโ€™s unexpected decision. A senior government lawyer also wrote in support: โ€œCondemnation of Charsadda event and solidarity and dua for the affectees is in order. Strike is notโ€ฆ Decision of the IHCBA โ€ฆ will help curb the unhealthy trend of frequently calling strikesโ€. Taking a cue from the changing winds, even an old time bar leader, who in his tenure had been quite comfortable with exploiting the politics of strikes, added: โ€œStrikes are not the solution. Just pray for them collectively during the intervals in court dayโ€. For a while, it seemed that both young lawyers and senior bar leaders had reached a consensus that the era of strikes should be behind us. One minute later, these hopes were dashed. โ€œAs per decision of Pakistan Bar Council, lawyers of Islamabad will also observe a strike tomorrow,โ€ the President then announced. So, this time around, it wasnโ€™t the angry, young, briefless lawyers of the district Bar Associations pushing for strikes. It was the venerable Pakistan Bar Council itself, a body comprising exclusively of senior Supreme Court lawyers, who were indulging in opportunistic politics. The Notification issued by the PBC that day reads as follows[3]: โ€œDr. Muhammad Farogh Naseem, Vice-Chairman and Mr. Abdul Fayaz, Chairman, Executive Committee, Pakistan Bar Council have strongly condemned the terrorists attack in Courts of Shabqadar, Charsadda, KP in which more than 13 innocent persons including two clerks of lawyers and police officials, have been martyred whereas two lawyers being in critical condition, are in the ICU of a local hospital besides many others seriously injured. For condemnation of this tragic incident they have appealed the lawyers to observe country wide strike tomorrow, i.e. Tuesday, the 8th March, 2016. The lawyers, as such, while observing strike will hold protest meetings in their bar rooms and wear black bands to condemn the tragic incident. Deploring the utter failure of the federal and KP governments in maintaining law and order situation in the province and to provide security and safety to the people, they have demanded the government to arrest the culprits and bring them to book at the earliest. While expressing solidarity with bereaved families, on behalf of the legal fraternity, they have emphasized the need of evolving foolproof practical strategy and plan for improving the law and order situation in and around courts throughout Pakistan ensuring safety and security of the judges, lawyers and litigants. โ€“ SECRETARYโ€ One of the lawyers on the group, who himself practices in the Supreme Court, immediately caught on the irony of the situation. He asked,ย โ€œ[IF SC lawyers sitting in

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