Sale and Agreement to Sell – Differences

Sale and Agreement to Sell – Explained

Sale of Goods Defined

Imprints of a Patriot

Book Review – A Stranger in my Own Country by Major General (Retd) Khadim Hussain Raja

Rana Rizwan Hussain
The book ‘A Stranger in My Own Country’ is a recollection of memory of a patriot army officer who served in East Pakistan as Major General from 1969 to 1971. The book reveals number of facts which became a cause of separation of East wing of Pakistan doing an irreparable loss to the country. At the start of the story about East Pakistan (now Bangladesh), Major General (Retd) Khadim Hussain Raja, says that certain opportunists in East Pakistan propagated against West Pakistan and put forth the distorted facts before the public just to disgust the image of West Pakistan in their eyes. A campaign amongst the masses was already on the move with a flawed idea that West Pakistan was usurping all the benefits which were generated out of the resources of East Pakistan wing. According to General (Retd) Raja, the propaganda was completely baseless and was launched in East Pakistan by certain groups with vested interests just to create an environment of hatred there for West Pakistan. General (Retd) Raja sorrowfully points out that the rulers sitting in West Pakistan were aware of the situation aggravating in East Pakistan but they remained silent and negligent to nip the evil into the bud. It is also stated into the manuscript that the then President of Pakistan was continuously apprised of the situation with solid proofs of anti nationalist elements taking strength in East Pakistan and was requested several times to intervene for taking measures against them but nobody sitting in West Pakistan could comprehend the direness of the situation properly, hence no measures on time.

General (Retd) Raja is quite eloquent in his view that in evolving the circumstances leading to the fall of Dhaka, the first responsibility goes to the leadership of East Pakistan who motivated and disgusted the people of East Pakistan against West Pakistan for their personal political interests and the same was coupled with the sluggishness in performing state responsibilities by West Pakistan wing when it came about the East Pakistan. Although, the geographical location of East Pakistan was a big hurdle in the performance of such responsibilities. He says that after the water had already run over, the rulers sitting in West Pakistan got alarmed of the aggravated situation in East Pakistan and they tried to overcome the situation through use of power, which was again a bad decision and resulted into a massacre due to the non-responsible attitude of the army command, there.

It can rightly be collected from various parts of the book that West Pakistanis considered East Pakistanis to be timid people but the same was true about East Pakistanis as well who hated West Pakistanis and thought that they were the usurpers of their national assets.

After reading the book one can easily reach the conclusion that the mutiny of 1971 was a result of lust for power of the political elite of the country in both wings. The final nail in the coffin was fixed when two parties which emerged on the political scene after the general elections, refused to share power with each other. The situation could certainly have been handled, if the politicians and the leaders had kept the national interests supreme and sorted out their political differences on table to find a mid way reconciliatory solution. Unfortunately, no such sincere effort was made throughout the period.

General (Retd) Raja at the end gives the moral of his piece of writing and says that leadership of Pakistan must learn from the past events and should not repeat those in future, as the result of making the same mistakes again would be no different from that of past. This is a message which speaks volumes for the leadership of the country reigning in the present era.

http://splus.nation.com.pk/E-Paper/Lahore/2014-01-12/page-63

Writer is a practicing lawyer based in Lahore, lecturer of commercial law and founding partner at Hussain & Associates; hnachambers@gmail.com

The Beautiful City

The Beautiful City
 

 
Rana Rizwan Hussain
The city has been beautified. New roads, underpasses and over bridges have been built. Many of the old ones have been renovated. What a pleasant feeling it is to drive on these roads, particularly when these roads have been decorated with the pelmets of green grass and flowers. Although, some parts of the city have been completely neglected but let’s not look at those ugly parts at the moment and give full credit to the government. Yes, I am speaking of Lahore, which has consumed the major portion of the provincial budget, may be it deserved this because of its being the provincial capital, fair enough and let’s not disagree. Even if we do, it won’t make much difference, because we don’t have any say before the authorities. Special TV shows have been done to boast of the development works of Lahore. Pleased of these developments, the heads of the foreign states are also invited to come, visit and appreciate our city and if the reader allows me some courage then let me say that at the end we also expect some gifts or donations. May those be in the form of litter cans or something else (What a shame!). Whatever it is, let us acknowledge that the development work has been done in the city and this fact can’t be denied. Devil should be given its due. The situation of Lahore reminds me of a story “The Beautiful City” which once constituted the part of matriculation course. There is a constraint of space but I would love to share that story as it precisely conveys the purpose of this piece of writing;

“Once upon a time there were three kings who had their kingdoms next to each other. In one of their meetings together they decided to visit each other’s kingdom after a period of one year and see who was able to convert his kingdom into the most beautiful one. When the time for meeting came each one of them was very happy and looked at his city proudly. The three kings along with their judges set off on the tour to see the beauty of the city of the first king. During the tour the kings and the judges noticed that there was not even a single shabby or ugly building left. Roads were clean and wide and city shone with newly-cut stone. Everyone appreciated the construction work done in the city but when they looked at the people who stood or walked about the streets, they looked pale, weak and poor with tired faces and children with thin legs and solemn faces. People were too tired, ill or unhappy to cheer their king as he passed. Next day the kings and the judges went for a tour to the city of the second king. They drove around the city and had number of beautiful sights. Every road was lined by a trim green verge. Flower brushes and trees made splashes of colour and beautiful hedges took the place of fences and walls. Flowers in hundreds and thousands met the visitors’ eyes as they drove around but here again the people did not match the beautiful city. “The children should look like flowers, too,” murmured one judge to another. Next day when the coaches set off for visiting the city of the third king, they noticed that the roads and streets of the king were lined with people, clapping and laughing as they cheered the passing of their king. Everyone was dressed in bright gay colour and their faces were full of joy. All seemed to be strong and healthy with rosy faces and straight and sturdy limbs and the children were the best sight of all. Standing at the roadside in little groups were boys and girls as they had come out of their schools. All wore the prettiest cloths in dozens of different colours. Their faces were bright and smiling as they waved flags or threw flowers to their kings. Their voices were strong and sweet when they sang to him as he passed. Nobody noticed if every building was perfect or if all the waste ground had been tidied up. The three kings and the judges could not take their eyes off the children. At last the tour was over and the three kings and the judges met in the palace of the third king. After some time of silence, one of the judges spoke out and said that the city of the third king was the most beautiful he had ever seen. The second judge added that the buildings and the gardens of the first two cities were indeed the wonderful sights but happiness of people was much better than that. Agreed the third judge, saying that the people were of more importance than buildings and gardens.  The king of that city concluded the conversation with his final remarks that with the people healthy and happy everything is possible and the other two kings also desired to make their kingdoms as that of the third king.”

I miss old school days!

Everyone knows that whenever any head of a foreign state travels on the roads of Pakistan, common public is not allowed to show its appearance to him. Signals are closed, traffic is diverted, and the pedestrians’ walk is halted. This is commonly observed here. Therefore, unlike the above narrated story, the foreign guests can hardly notice the pale faces of the poverty stricken masses, especially of those who stand in the city squares and wait whole day long for the labour for earning single time bread for their family. But still they can see that all on TV channels and in the newspapers. After travelling in Pakistan, those rulers may be questioning themselves that why the rulers of this country are neglecting the masses and focusing the construction and beautification works. They may be wondering that the leadership of this country lacks vision and wisdom of governance. They may also be thinking that these rulers have no concept of policy making in which they can set the priorities in fulfilling the public requirement. Certainly, they can also doubt the sincerity of our leadership with the public. They must be standing sure that the parliamentarians of this country go to the parliament houses just for napping and not for raising public issues and for holding of parliamentary debates. Through these debates the elected representatives can highlight the problems of their constituencies and above all they can restrain the misuse of public funds by the functionaries. Those foreigners must be developing a view at the end that despite having a democratic system the masses of this country are the victims of the monarchs who sole handedly make policy decisions and use members of the parliaments as puppets. These rulers fulfill their personal desires out of the public money and that too without any accountability.

Our leaders fail to set the priorities in public welfare projects because they are least interested in resolving public issues. This is because of their lack of passion for the common public. Before spending billions of rupees upon a single project they have to ascertain the real public issues. Having ascertained the issues they must set the correct priorities for redressing those issues and provide them with the best possible solutions in suitability with the economics. Every issue should be dealt with on behest of its priority. Government being the custodian of public money should spend it in a most careful manner and in a way which provides equal opportunity of benefit to everyone. They have to make the cost and benefit analysis before making huge outflows of money. Our leaders must know that providing people with the clean drinking water, food, health, inhabitation and education comes prior to the construction of buildings and roads. If our leaders can so easily be fascinated by the construction projects of the foreign countries, which those countries developed after providing basic facilities to their public, they should also be inspired of the living standard of the people there and work for it too in Pakistan. Our leaders have to prioritize the basic necessities of life of the common public upon any other development project or the reader of this article would understand that they lack the required wisdom of leadership and need to get back to school for learning the lessons which they missed. As there is no shame in late learning and it is yet better than never learning.

Writer is a Lahore based practicing lawyer and a lecturer in laws – Email: –hnachambers@gmail.com

Student Unions in Pakistan

ISF: Thoughts of a concerned mind

Rana Rizwan Hussain

Students constitute to a big mass strength of every nation and the same is in Pakistan. History of student Union ship in Pakistan goes back to the Pakistan movement. Muslim Students Federation (MSF) was the first student union founded for the cause of an independent state for Muslims and the role of students in the Pakistan movement is acknowledged. After Pakistan came into being Quaid e Azam advised students to alienate themselves from the politics and merely focus on the studies. Quaid while addressing students at Islamic College Peshawar on 12 April, 1948 said,

 “My young friends, I look forward to you as the real makers of Pakistan, do not be exploited and do not be misled. Create amongst yourselves complete unity and solidarity. Set an example of what youth can do. Your main occupation should be in fairness to yourself, to your parents, in fairness to the State, to devote your attention to your studies. If you fritter away your energies now, you will always regret.

Develop a sound sense of discipline, character, initiative and a solid academic background. You must devote yourself whole-heartedly to your studies, for that is your first obligation to yourselves, your parents and to the State. You must learn to obey for only then you can learn to command.”

The role of students as a mass force was supposed to end up with the emergence of Pakistan as an independent state on the map of the world and in accordance with Quaid’s advice to the students that they should devote themselves to the studies as their first obligation. Unlike Quaid’s advice what happened was that more and more student unions were founded which resulted into the fraction between the students and development of rivalry with each other. Democratic Students Federation (DSF) and Islami Jamiat e Talaba (IJT) were founded soon after the creation of Pakistan. With the passage of time many political parties came into being in the country and almost every party laid down the foundation stone of a new student union. Every party tried to strengthen itself by creating a lobby into the student, hence another rift in students. Some ethnic groups in the country also penetrated into the students and established their own groups such as Pakhtun Students’ Federation (PKSF), Baloch Students’ Organization (BSO), All Pakistan Mohajir Students’ Organization (APMSO), etc.

As a result of establishment of these unions students were manipulate in various political movements of the country and agitations against the government. Political parties started making direct involvement in the students’ affairs and sponsored the elections of the office bearers of unions. These acts of political parties doomed many academic institutions by distracting the students from their main task and involving them into the power politics. It also divided the students in different fractions confronting each other. These, students were subsequently exploited in the hands of political leadership of the country who used them for their political motives. Gradually the politics in academic institutions became common under the patronage of political parties. Since, these student unions were formed not for the welfare of the student community but for using them in the political war game, therefore, these unions became a parallel strength to the state, challenging the authority of the state at many occasions. Also that instead of competent students, goons started holding offices of the unions.

This resulted into the creation of power units in the universities and colleges and side by side gave rise to the misuse of power and corruption by the members of union. Use of arms against the rival students as well as the administration became usual. In some cases extortion of money from the transporters, contractors working in the institution and nearby business proprietors by threatening them also happened. Serious academic students were harassed to join the unions and were forced to become part of the processions, agitations and protests against government. Those who refused were punished and victimized. However, this student union culture dominated the academic culture and spoiled the quality of education being imparted from number of prestigious academic institutions. Concerned parents were compelled to choose the private institution for their children upon the government institutions, where unions operated. The story did not end up just here but member students of one union also became victims of the rival groups when their patron political parties came to power. Overall student unions adversely affected the academic institutions severely, instead of giving any benefit.

Sensing the negativity taking breed through student unions, these were once banned in 1984 but that ban could survive only till 1988, when it was lifted again. At present dozens of student unions are operating in different colleges and universities of Pakistan and a recent development is that of Insaf Student Federation (ISF) under the patronage of Pakistan Tehrik e Insaf, which raises the slogan of justice and welfare in the society. The question which so far is going unanswered by the sponsors of ISF is that how this union is going to be distinct in its role from that of many other student unions in the country? How it would be ensured that students belonging to this union are not exploited and misled?

In this regard PILDAT discussion paper of 2008 raises 22 sound questions which deserve to be answered before taking any measure for the progress of student union culture in the country. Leaving those questions unattended would in any case add to the negativity instead of positivity. Mr. Khan whose speeches inspire public at large has to explain that how he is going to save the academic institutions from further damnation by taking a typical step which all other political leaders took for their political gains? How he is going to ensure the positive role of ISF and how does he strategize to keep this union away from the power politics and also from their victimization by the rivals? How it would be ensured that the command of this union does not go in the incompetent hands? How Mr. Khan would answer Quaid’s advice to students that they should devote themselves whole heartedly to the studies as this is their first obligation to themselves, to their parents and to the state? All concerned minds await answers to these questions.

Writer is a Lahore based practicing lawyer and a lecturer in laws. Email: – hnachambers@gmail.com

INTERNATIONAL ARBITRATION: DEBATE OF JUDICIAL BIAS IN PAKISTAN

Rana Rizwan Hussain

Role of judiciary in a country is of vital importance to set an environment friendly to international arbitration. Pakistan is one of those countries which are known for their unfriendliness towards international arbitration. Although international and domestic arbitrations are governed under different law regimes but a friendly domestic arbitration practice serves as good base for international arbitration to grow. Out of several elements constituting to an arbitration friendly environment, eg developed arbitration law regime, developed arbitration institutions and training facilities for law professionals in arbitration etc, the role of judiciary stands paramount.

Pakistan faced a great deal of criticism due to HUBCO v WAPDA[1] and SGS v Pakistan[2] cases in which Pakistani courts played a role against the expectations of international arbitral community and passed anti arbitration injunctions. Pakistan also became the attention of international arbitration community in a case Dallah v Pakistan [2010] 3 WLR 1472 in which Pakistan is accused of causing delay in arbitration proceedings due to its unwillingness to arbitrate the matter. The said matter was disposed off by the ICC tribunal in Paris in almost eight years. Although, this matter was also taken up in Pakistani courts but no anti arbitration injunctions were issued in it. In the first two cases Pakistani courts are said to have breached the international arbitration law regime by intervening into the arbitral process by accepting the jurisdiction upon the matters where exclusive jurisdiction should have been allowed to the arbitral tribunals.

Certainly, these cases could be better addressed by the courts but contrarily what has been ignored so far is to analyse the overall judicial stand of Pakistani courts and judge the element of judicial bias in the light of overall court practice. A quick perusal of court decisions of Pakistan shows that majority decisions uphold the arbitration agreement and refuse the court jurisdiction in favour of arbitration proceedings. In case titled as Metropolitan Steel Corporation Ltd v Macsteel International UK Ltd PLD 2006 KAR 664,  suit for recovery of money was filed by plaintiff against which defendant raised the objection that there was an arbitration agreement between the parties to refer all the disputes to arbitration and thus requested the court to refer the matter to arbitration. Plaintiff denied the contention and said that there was no agreement between the parties. Court looked into the detail and found that parties had agreed upon arbitration in the correspondence between them. Court stayed the proceedings of the suit in favour of arbitration and gave finding that the arbitration agreement could also be inferred from the correspondence between the parties and directed the parties to resort to terms of sale contract for the settlement of dispute. In another case titled as Islamic Republic of Iran Shipping Lines v Hassan Ali & Co Cotton (Pvt) Limited CLD 2006 153 Sindh High Court Karachi acting as the executing court of a foreign award gave finding that court while considering the enforcement of foreign awards merely acts as an executing court and while doing so it cannot go behind the award and sit as an appellate court and make appraisal of evidence. In the same line there are number of other precedents which uphold the arbitration agreements and enforce the foreign awards.[3]

Before giving an analytical view about the judicial bias in Pakistani courts, there is a need to draw a clear distinction between the element of ‘lack of judicial independence’ and ‘judicial bias’:

Lack of Judicial Independence	Judicial Bias
Judiciary lacks its independence when it is influenced or dominated by any other organ of the state.	Judicial bias is an element which roots into the minds of the members of judiciary and has no further backing.
Lack of independence works for protecting the interests of influencing authority.	Judicial bias hinders sharing of power with any alternative mode of dispute resolution.
Lack of independence does not victimize arbitration system directly but arbitration may become an unwanted prey.	Judicial bias directly targets arbitration system as a rival and obstructs its progress.
Proof of lack of independent judiciary establishes the week institutional growth of the country.	Proof of judicial bias establishes a jurisdiction as an unfriendly jurisdiction for arbitration.

The purpose of drawing distinction between both the elements is to draw attention to the fact that the effect of lack of judicial independence in the court decisions should not be mixed with the effect of judicial bias.

Supreme Court of Pakistan fought its battle of independence (known as the “lawyers’ movement”) against the establishment in the era of 2007-2009. The HUBCO and SGS cases were decided in between the years 2000-2002. A common element in both the cases was that in these cases, state or the state interest was directly involved. Hence, the element of influence upon the judiciary cannot be overlooked. While, the element of judicial bias can be rebutted in the light of majority judgments referred above and the receptivity of legal system towards ADRs including arbitration. There are enactments in Pakistan eg Co-operative Societies Act, 1925 and Electricity Act 1910 which specifically contain the provisions which allow the parties to resolve their disputes through arbitration. Pakistan Law Commission which works for development of law and justice in Pakistan consists of Chief Justices and senior judges of superior courts along with other law personalities, has approved various draft statutes, such as the Small Claims and Minor Offences Courts Ordinance, which recognize the ADR mechanism. This receptivity of top judicial body towards arbitration system negates the existence of element of bias for arbitration in the mindset of judiciary.

Irrespective of the discussion above HUBCO and SGS cases can also be considered as the exceptions to general practice which can take place even in the reputed arbitration friendly jurisdictions. As Dallah v Pakistan is one of the most recent examples, in which English court refused to enforce the award rendered by the French tribunal and based its refusal upon section 103(2)(b) of English Arbitration Act, 1996 which reflects article V(I)(a) of the New York Convention according to which recognition and enforcement of award may be refused at the request of the party if the arbitration agreement between the parties was not valid under the law to which the parties have subjected it to or failing any indication thereon, under the law of the country where the award was made. In Dallah case there was no express agreement upon the choice of law applicable upon the arbitration agreement, hence the tribunal should have decided the validity of arbitration agreement under the French law. While, the tribunal decided the validity of arbitration agreement under the principles of international law, which was rejected by the English court at enforcement stage. Although, the awards could be enforced at Dallah’s plea before the enforcing court that the principles of international law constitute to the part of French law, as the French law promotes the approach that arbitration agreements are governed under the transnational principles of law.

This example brings forth that exceptions to the general practice can also take place in reputed arbitration friendly jurisdictions. Although Pakistan has failed to develop a friendly image in the field of international arbitration but the responsibility of it is not upon the mindset of judiciary but upon other factors.

Supreme Court of Pakistan after being successful in its battle for the sake of rule of law has passed several bold decisions at national level without accepting any pressure or influence of any other body, which is admirable. January 2010 decision of declaring National Reconciliation Ordinance, 2007 void ab intio and non est which was aimed at providing unlawful relief to the political elite of the country is an example. In this sequence, if a matter relating to international arbitration comes to be dealt by the court, the best expectations are that the court would follow its independent approach and the decision passed would be reasoned and free from the effect of either of the elements discussed above.

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[1] Judgment of Supreme Court of Pakistan, 14 June 2000 (Civil Appeal No 1398 and 1399 of 1999)

(Also reported internationally)

[2] Decision of July 3, 2002, Supreme Court of Pakistan

[3] Far Eastern Impex (Pvt) Ltd, Karachi v Quest International Nederland BV  YLR 2009 KAR 334; Islamic Republic of Iran Shipping Lines through attorney v Hassan Ali & Co Cotton (Pvt) Ltd CLD 2006 KAR 497; Crescent Sugar Mills Ltd v Abdul Aziz etc PLD 1978 LHR 1396; Hassan Ali & Co Cotton (Pvt) Ltd v Poly Cotton SA 2-RUE Andrien Vallin 1201 Geneva, Switzerland and others PLD 1996 KAR 416; Pacific Lloyd Ltd through attorney v Blessed Enterprises through Proprietor CLD 2007 KAR 661; Flame Maritime Ltd v Hassan Ali Rice Export CLD 2006 KAR 697; Marines Ltd v AEGUS Shipping Co Ltd and others CLC 1987 KAR 1299; Meredith Jones & Co Ltd v Quetta Textile Mills Ltd CLD 2002 KAR 1191; Jugotekstil Imex v M/s Shams Textile Mills Ltd CLC 1986 KAR 879; Ralli Brothers & Coney ltd v Muhammad Amin Muhammad Bashir Ltd CLC 1987 KAR 83; QUINN Corporation and others v COTTON Export Corporation CLD 2004 KAR 1040; Alfred C Toepfer International GMBH v Pakistan Molasses Company and another CLD 2003 KAR 1666; M/s European Grain & Shipping Ltd v M/s Polychem Company Ltd PLD 1990 KAR 254; DAMPSKIBSSELSKABET NORDON AKTIESELSKALE v Ahmed Shipping Lines Ltd, Wallace Road Karachi PLD 1983 KAR 247; NAN FUNG Textiles ltd v Sadiq Traders Ltd PLD 1982 KAR 619; Hitachi Ltd and another v Rupali Polyester and other 1998 SCMR 1618; European Grain & Shipping Ltd v Polychem Co Ltd PLD 1990 KAR 254; There are also number of other judgments in support.

Writer is a practicing lawyer based in Lahore, lecturer of commercial law and founding partner at Hussain & Associates; hnachambers@gmail.com

Notice: – Article has been published with a law journal “JURIST” of University of Pittsburgh, United States in 2012. The author and the publisher have the exclusive right to republish or reprint this article. Any infringement of copyrights shall be strictly dealt with in accordance with law.