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Pursuant to an amendment in the Workers Welfare Fund Ordinance, 1971 (“WWF Ordinance”) through the Finance Act, 2008 (hereinafter “Amendment”), the definition of “industrial establishment” has been widened by incorporating the definition of “establishment” as set out in the West Pakistan Shops and Establishment Ordinance, 1969 (“Establishment Ordinance”). The said definition of “establishment” in the Establishment Ordinance also includes therein the definition of “commercial establishment” also contained in the Establishment Ordinance. The effect of the Amendment is that now all “establishments” (including all “commercial establishments”) shall contribute 2% of their total income (“Contribution”) to the Workers’ Welfare Fund (“WWF”) in terms of the WWF Ordinance. One important implication of the Amendment is that since the definition of “commercial establishment” includes charitable or other trusts, it encompasses inter alia all mutual funds, collective investment schemes and voluntary pension funds (“Investment Funds”), which are now required to annually remit their Contribution to the WWF.

In light of this development, the Mutual Funds Association of Pakistan Limited (“MUFAP”) had filed a Constitution Petition No. D-2764 of 2009 (“Petition”) before the High Court of Sindh at Karachi challenging the application of the Amendment to Investment Funds and seeking the Court to, inter alia, declare that Investment Funds are not “industrial establishment[s]” under the WWF Ordinance and therefore not liable to pay the Contribution to WWF. In support of the relief sought by MUFAP, the following submissions were inter alia made to the Court:
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Of fundamental important to the Banking Sector are a number of Petitions filed by numerous customers / debtors before the High Courts seeking the striking down of Sections 9 and 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 on the basis that the requirement of a customer to seek leave to defend from the banking court in terms of the above provisions is violative of the Constitution and in particular the recently inserted Article 10A of the Constitution. The following is therefore a brief summary of the main contentions raised by the customers and the banks in these Petitions.

The right to a fair trial and due process have recently been inserted as part of Constitution (Eighteenth Amendment) Act, 2010 (“2010 Act”). Soon after the introduction of the 2010 Act, a flood of writ petitions numbering in hundreds (“Petitions”) were filed before the Lahore High Court and the High Court of Sindh challenging, amongst others, the restriction and limitations faced by a customer in defending a banking suit provided in Sections 9 and 10 (“Impugned Sections”) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (“Recovery Ordinance”). Read more here...