The Counsel

Constitution (Eighteenth Amendment) Act 2010

The passage of the historic Eighteenth Amendment Act (Act) has been reported extensively in the media with great emphasis on its impact on the body politic of Pakistan. The following is a summary of the Amendments to the Constitution made through the Act as they relate to the corporate sector in Pakistan.

Article 19A - Freedom of Information
A new Article has been inserted giving every citizen the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law. It is expected that this Article would have far reaching implications in light of the proliferation of media and especially television news channels in Pakistan. It is hoped that appropriate measures are taken to provide the requisite legal framework for the implementation of enabling legislation and regulation of this fundamental right.

Article 25A – Right to Education
This is a welcome development in that under this Article the State shall provide free and compulsory education to all children of ages 5 to 16 years. With an ever increasing role of services in our national economy, this right is expected to greatly enhance the human resource potential in long run given that there is the political will to implement same effectively. Read more here...

Legal Updates
Muslim Commercial Bank v. Dewan Salman
Fibres and others
2009 CLD 1483 (Single Bench- Islamabad)

Subject: Company and Banking laws.

Key words: Winding up by creditors; jurisdiction of banking Court and company Court in winding up proceedings;

Abstract: Muslim Commercial Bank (Bank) filed winding up petition under Sections 305(e) and 306(1) of the Companies Ordinance, 1984 for winding up of the respondent company (Respondent). The Respondent filed an application under Order VII Rule 11(d) CPC read with rules 7 of the Companies Court Rules, 1997 (1997 Rules) for rejection of the Bank’s winding up petition on the grounds that the Bank being a financial institution cannot file a winding up petition under the Companies Ordinance, 1984 as it must first have recourse under the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Recovery Ordinance). In other words, the two laws are mutually exclusive and the Bank having instituted proceedings under the Recovery Ordinance was barred from initiating winding up proceedings as a creditor.

Judgment: The Court after reviewing Sections 4, 5(1), 7(4)(5) and 9(1) of the Recovery Ordinance held that there was nothing inconsistent in the provisions of the Companies Ordinance, 1984 and the Recovery Ordinance insofar as the winding up provisions of the Companies Ordinance are concerned. Accordingly, winding up by creditors being a wholly different situation, the jurisdiction of the Company Court may be invoked so long as it can be proved that a respondent company is unable to pay its debts and is thus liable to be wound up. Read more here...