..::Litigation of Overseas Pakistanis and Foreigners in Pakistan

A woman of Pakistani origin Sobia Khan living is Austria had matrimonial dispute with her husband, who is living in Ireland. The husband deserted her first wife. The woman in Austria engaged our law-firm for legal remedies. We filed family suits for recovery of maintenance and dowry articles from her husband in Pakistan. The court issued notice to the husband for appearance in court. She also plans to take legal action against her husband in Ireland. The husband entered his appearance in court through lawyer and the case is fixed for written statements. The plaintiff herself visited Pakistan and also personally appeared in family court and recorded her statements.

Mr. Suhel Ahmed from Assam India got married on-line with a Pakistani woman and the marriage was registered in Pakistan. Now due to some reasons his wife in Pakistan filed a suit for dissolution of marriage in a family court in Pakistan. Mr. Suhel Ahmed contacted and instructed our law firm to contest the matter and bring reconciliation in this matrimonial litigation in court. On the instruction of overseas client we entered appearance in the case but the other party did not appear in court and the case was dismissed due to non-prosecution.

International Family Litigation in Pakistan

Mr. Suhel Ahmed from Assam India got married on-line with a Pakistani woman and the marriage was registered in Pakistan. Now due to some reasons his wife in Pakistan filed a suit for dissolution of marriage in a family court in Pakistan. Mr. Suhel Ahmed contacted and instructed our law firm to contest the matter and bring a reconciliation in this matrimonial litigation in court. On the instruction of overseas client our law firm entered appearance in the case.

 

Procedure of Talaq (divorce )—Wife residing aboard

S. 7—West Pakistan Rules under Muslim Family Laws Ordinance, 1961, R.3(b)—Constitution of Pakistan, Art. 199—Constitutional petition—Talaq (divorce )—Wife residing aboard—Serving of notice on wife, effectiveness of—Arbitration Council, jurisdiction of—Proceedings for dissolution of marriage, custody of minor and equitable distribution of property initiated by wife (petitioner) in the foreign court—Husband (respondent) was alleged to have prepared a forged divorce deed in Pakistan with the intention to frustrate said proceedings before foreign court—Contentions of wife were that she was residing out of Pakistan and was not served notice of Talaq by Arbitration Council in accordance with section 7 of Muslim Family Laws Ordinance, 1961, and that Arbitration Council, had failed to appreciate her objection about her non-residence within its territorial jurisdiction—Validity—Perusal of reply affidavit submitted by wife before foreign court showed that she had knowledge about pronouncement of Talaq and proceedings before the Arbitration Council in Pakistan—Rule 3(b) of West Pakistan Rules under Muslim Family Laws Ordinance, 1961, clearly provided that where at the time of pronouncement of Talaq, wife was not found available in any part of Pakistan, then the Union Council or Town, where she last resided, would have jurisdiction for the purposes of notice, therefore, contention of wife regarding jurisdiction needed no further discussion—Constitutional petition was dismissed accordingly. 2013  CLC  108     ISLAMABAD

..::Enforcement of Foreign Judgements in Pakistan

This paper examines the issue relating to the enforceability of foreign judgements in Pakistan. In the existing law, there are two categories of judgements, one passed by the courts of reciprocating states and the other by non-reciprocating states. The judgements of reciprocating states are enforceable per se, but for non-reciprocating states, the judgement creditor will have to seek enforcement by filing a suit in the appropriate court.
The procedure which exists for recognition and enforcement of foreign judgements is as under:
A creditor under a foreign judgement has three options:
(i) to seek direct execution under the relevant provisions of the Civil Procedure Code,1 1908(CPC), where the country rendering the judgement is designated by the Government of Pakistan as a reciprocating territory;
(ii) to file a suit in Pakistan on the basis of a foreign judgement, treating it as a cause of action2; or
(iii) to file a suit on the original cause of action.
Enforcement proceedings can only be challenged on specific grounds set out in the C.P.C3 and these include:
(i) where the judgement has not been pronounced by a Court of competent jurisdiction4;
(ii) where it has not been given on the merits of the case;
(iii) where it appears on the face of the proceedings to be founded on an incorrect view of international law or refusal to recognise the law of Pakistan in cases where such law is applicable;
(iv) where the proceedings in which the judgement was obtained are opposed to natural justice;
(v) where it has been obtained by fraud; and
(vi) where it sustains a claim founded on a breach of any law in force in Pakistan.
Answers to some frequently asked questions:
1. Once a judgement creditor provides a copy of the judgement, what is the process for having the said judgement domesticated in Pakistan?
Where the judgement is from a court belonging to country, which is not a reciprocating state, one will have to file a suit in the appropriate court of law for its execution.
2. Once the judgement is domesticated in Pakistan, what is the process for seizing the debtor’s assets?
Once the suit is filed, objection to the suit can not be heard unless the defendant furnishes security. And where the party of other part fails to furnish security, application for seizure of property can be made to the court.
3. Which pieces of property owned by the debtor cannot be seized by the creditor or which assets are considered exempt property or in other words what property owned by a debtor in Pakistan is exempt from seizure?
Property which is not in his possession can not be seized but can be attached till the disposal of execution proceedings.
4. Can the debtor’s bank accounts in Pakistan be seized?
Yes. Where the accounts are directly in his name, the same can be seized.
5. How long does the domestication process take?
Once the suit for execution is filed and objections are settled.
6. How long after domestication does the seizure of assets take?
If the objection are not relevant, immediately.
An important proposition was decided by the Karachi High Court.5 In that case a question was raised whether or not a decree passed by a foreign court under private international law can be executed under Section 44-A read with Rule 23-A of Order XXI of the Code of Civil Procedure 1908, and in case of objections, whether non-furnishing of security would not be fatal.
The facts of that case are that in June 1989, the respondents (Marfani and Company) filed a suit against the appellants claiming that the appellant (Munawar Ali Khan) had agreed to sell and the respondents had agreed to purchase certain immovable properties in Hyde Park Mansions, London. According to the agreement between the parties certain amounts by way of service charges under leases were required to be paid by the appellant to the respondents, which they failed to pay despite completion of sale and purchase in May 1986. The respondent-company filed a suit in the British Court and a Writ of Summons were issued to the appellants all of whom were residents of Pakistan. The British Court later on awarded decree in favour of the respondent.
The respondents sought to execute the decrees through the High Court of Sindh under section 44-A, C.P.C. The appellants filed objections but by an Order a learned Single Judge ruled that the objections could not be heard unless the appellants furnish security in terms of Order XXI Rule 23-A of the CPC. The appellants preferred appeals against the aforesaid order before a Division Bench which were disposed of by a consent order whereby the order of the learned Single Judge was set aside and the matter was remanded to the learned Single Judge. Upon remand the learned Single Judge hearing the execution applications noticed that the Appellate Bench had not decided the question of requirement of furnishing security under Order 21, Rule 23-A, C.P.C. and thereafter proceeded to consider the question of non-furnishing of security as well as the merits of the case. By the impugned order the Court held that furnishing security was a condition precedent for objecting to execution of any money decree including a decree of a foreign Court and therefore, the appellants’ objections could not be heard.
The attention of the Court was invited to Cheshire and North’s Treatise on Private International Law where the authors recorded their opinion in the following words:
“According to the decisions that have dealt with the matter up to the present, it is undoubted that the various circumstances considered above exhaust possible cases in which a foreign Court possesses international competence. Thus it is not sufficient that the cause of action, as for instance a breach of contract or a commission of a tort accrued in foreign country”.
In this regard the High Court observed that indeed it appear to be correct in asserting that under the traditional Common Law rules of private international law an action on the basis of a foreign judgement could only be maintained if the defendant in the aforesaid judgement was a resident or at least physically present in the foreign country at the time of commencement of proceedings or had submitted to or agreed to submit to the jurisdiction of such foreign Court. The mere fact that the cause of action had accrued within the jurisdiction of such Court would not confer competence upon such Court in an international sense so as to make its judgements recognisable and enforceable in Britain.
From what has been stated above, it is evident that there are many slips in getting a foreign judgement enforced.
1. Section 44A of the C.P.C ‘reciprocating territory means any country or territory outside India which the Central Government may, be notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and ‘superior Courts’, with reference to any such territory, means such Courts as may be specified in the said notification.
2. Under Section 14 of the CPC courts in Pakistan shall upon the production of a certified copy of the foreign judgement presume that it has been given by a court of competent jurisdiction, unless the contrary appears form the record (a). The onus of proving that the foreign court was not a court of competent jurisdiction, will lie on the party asserting the same.
3. See Section 13 of CPC.
4. The Court giving the judgement or passing the decree shall be considered to have jurisdiction only if the defendant had, at the time when the proceedings were instituted, his habitual residence in the state of the Court which gave the judgement or passed the decree. A decree of a foreign Court in action in persnam in which the court assumed jurisdiction under its own system of laws on any ground other than the presence of the defendant within the jurisdiction, such as locality of cause or action or forum of convenience, shall not be recognised and enforced under the Convention. Although Pakistan is not a Contracting State of the Hague Convention but its provision relating to jurisdiction of foreign Courts can usefully be referred to support the view in accord with the international view on the subject.
5. Munawar Ali Khan v Marfani and Co PLD 2003 Ka 382.
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates)

::Speedy Justice in Pakistan

Speedy Justice! How?

Besides safeguarding the state’s frontiers, the dispensation of justice is a government’s foremost obligation. Many state constitutions across the world reckon access to speedy justice as one of the citizen’s fundamental rights. Yet, commentators on public affairs everywhere complain of the lethargy with which their judicial process moves. In our own case, politicians as elsewhere make similar promises daily. Courts in many countries have accumulated huge backlogs of pending cases.  Litigation in civil courts is notorious for its slow movement but sometimes even criminal cases may take an incredibly long time to conclude. A recent example is that of Asif Zardari who remained in jail for eight years, and the charges against him are still pending in courts.

One reason why the wheels of justice move so slowly is that in many societies, the volume of litigation has increased enormously during the last 50 or so years. Minor disputes or brawls that were once settled by the friendly intervention of friends and neighbours, or through negotiation and compromise, or simply let go, are now taken to court. Consider also that governments sue, and are sued by, private parties much more often than before.This increase has occurred in civil much more than in criminal cases. In many societies, including Pakistan, a large percentage of the crimes does not even get reported, because of the hassle the victim has to go through in dealing with the police.

It is commonly said in both Pakistan and India that the number of courts and judges must be increased to deal with the increased volume of litigation. India has about 11 courts per one million of population. The situation may be roughly the same in Pakistan. Western democracies, by contrast, have close to 100 courts for the same number of people. A related problem may be mentioned. At any given time, a substantial proportion of the authorized posts in various courts are lying vacant especially in Pakistan. Many positions in the Pakistani courts remain unfilled. The appointing authorities are in a position to know many months ahead of time when a judge will retire. Failure to appoint his successor promptly is simply incompetence on the part of the people at the helm of affairs.It has been contended that intricate and cumbersome procedure, more than any shortage of courts and judges, is to be blamed for delay in the processing of court cases. That may be true, but those who would simplify the procedure must be cognizant of the fact that the procedure is what it is partly to protect the rights of the accused and respondents.

The “jirga” in the tribal regions of NWFP is well known for the promptness with which it settles disputes and punishes crimes. Unlike the jirga in Sindh and southern Punjab, which has become notorious for its inequity, the one among our Pukhtun tribes is reasonably well regarded. It includes some of the village elders and notables but it is open to all those who might wish to attend. In certain cases it admits an equal number of nominees from each side to the dispute. It settles issues according to the well-established tribal custom.

In the Anglo-Saxon tradition cases are heard and decided by judge and jury. It is the jury, consisting of the accused person’s “peers,” that determines his guilt or innocence. The judge conducts the trial and explains the relevant law to the jury. In case it finds the accused to be guilty, he explains to the jury the limits of the penalty it may impose in view of the mitigating circumstances, if any, that it may wish to consider.

The jirga among our Pukhtun tribes is not unlike the jury, except for the fact that it works without the direction of a judge and the intervention of lawyers. A great deal of criticism of the jirga in Sindh and southern Punjab has been voiced in recent years, and that for good reason. Critics maintain that it should be abolished. Considering that our judicial system is so slow-moving, it may not be a great idea to abolish the Pukhtun jirga which is not the object of condemnation as its Sindhi and Punjabi “counterparts” are.

In any case, if the jirga is allowed to remain in Sindh and Punjab, it should probably be reformed. Its membership and modus operandi may be regularized; its jurisdiction limited to certain specified categories of disputes and offences, and it may be required to implement the law of land and not its tribal custom. To the extent that the custom is benign, it may be made part of the law. It may be recalled that much of the English common law was, once upon a time, the ongoing custom of the land and its people.

Some of the frequently mentioned impediments to speedy justice may be noted. First, far too many writ petitions are filed in the higher courts, and many of them are said to be frivolous. They should be subjected to stricter scrutiny before they are admitted. Second, too many adjournments are allowed for reasons that are not good enough. The police should be forbidden to keep an accused in custody beyond a specified period of time before taking him to court, and if a viable case against him cannot be prepared by the appointed deadline, the charges against him should be dropped.

Lawyers, as a class, have little interest in speedy justice especially if they are paid by the hour or by the day. The longer it takes for a case to be settled, the larger the amount in fees and expenses that they can bill their client. A strict limit should be placed on the time a lawyer may take to present his oral arguments. At the present time, they can take days to argue a case. The United States Supreme Court allows an attorney no more than 30 minutes to argue his case. All else he may put in his written brief.

If justice is to be made prompt and affordable, supplements to the existing apparatus need to be considered. A movement called “Alternative Dispute Resolution Mechanisms” began in the United States in the 1970s. As a result, some of the states have set up small claims courts to deal with cases involving obligations of less than $5,000.A local “justice of the peace,” a non-salaried functionary (somewhat like the “honorary magistrate” in pre-independence India) hears and settles the cases. The parties may or may not be represented by counsel. The plaintiff states his claim under oath, and in writing, and presents supporting evidence. The respondent presents his case, if he has one. The matter is settled usually in one hearing.The attorney-general in Florida has instituted another system. Volunteers, trained in the arts of conciliation and mediation, act as hearing officers to bring about a settlement between the aggressor and the aggressed in minor criminal cases and between the plaintiff and the respondent in cases involving small claims. Apparently, the system is working well.In April 2001 the government of India offered the states five billion rupees to establish “fast track” courts in each district to handle criminal cases involving “under trial” prisoners. It should be interesting to find how well these courts are functioning.

The feasibility of these alternative mechanisms for delivering justice in Pakistan deserves to be considered seriously.Improved skills of the judiciary in case flow management would help to provide speedy justice to the poor, needy and vulnerable.The huge burden of pendency of cases continued\to add to the challenge that the courts are facing to discharge their duties in time and efficient manner.Some of the pending court cases are more than 10 to 15 years old and this situation obviously highlighted the importance of having better case flow management. Only in Punjab, in 2001, the number of indisposed cases was reported to be more than a million, and in the same year Sindh, NWFP and Balochistan had 119,969; 159,074 and 6,029 cases pending in the courts respectively.The extremely poor ratio of judges per population, which was one judge for every 140,000 persons in Pakistan, was one of the main reasons for pendency of cases.A number of measures have already been taken to strengthen the judiciary by providing better infrastructure, latest gadgets and international standard contemporary skills.

The leaders of the Pakistan must get together for ensuring a perpetual peace, security and prosperity for the succeeding generations. A new order should be evolved based upon the golden principals of truth, justice and fairplay. This would be of great help an end to the curse of crime in Pakistan. The future of human civilization and the fate of our country hang in the balance. One wrong step can demon us; one right step can save us. The future of Pakistan rests on this choice. We must learn to ignore our petty interests and prejudices in order to rise to the occasion and to take the right decision.