Law and Policy Review

Theory of Reverse Discrimination and its Operationalization in the Legal System of Pakistan

2024-06-24T09:33:19+00:00

This research paper aims to exhaustively explore and elaborate the doctrine of reverse discrimination in the context of the legal system of Pakistan. It begins by examining the historical background of the concept through the contours of American jurisprudence that defined it whilst also exploring the dimensions of various English traditions of ethical philosophy that served as the conceptual cornerstone of the theory of reverse discrimination. This paper deploys comparative and doctrinal research methodologies to critically examine the implication of reverse discrimination in the legal strata of Pakistan. Following such definitional examination, it proceeds to analyze the position of this concept in the former and current constitutional frameworks of Pakistan. It argues that reverse discrimination is a viable solution to curb structural discrimination and inequality existing in the society, with reference to judgments tendered by the Supreme Court of Pakistan. Furthermore, this paper assesses penal statutes namely the Juvenile Justice System Act 2018 and Protection against Harassment of Women at the Workplace Act 2010 enacted pursuant to the goal of operationalizing the theory of reverse discrimination in the legal framework of Pakistan and in doing so shall examine the policy and statutory praxis of the doctrine in Pakistan. Lastly, it discusses the implications and consequences of deployment of reverse discrimination doctrine and affirmative action-based policy.

Right to Information and State Secrecy: A Balancing Approach in Democracies

2024-08-09T11:50:19+00:00

The Right to Information (RTI) plays a pivotal role in ensuring good governance, accountability and transparency in a society. Despite its advantages, permitting unrestricted access to sensitive data can lead to adverse consequences, especially concerning the matters related to secrecy of a state. Executive actions often prioritize state secrecy, potentially hindering the efficacy of the RTI. The RTI and state secrecy intersect with each other and appear adversarial; promoting one may turn down the other. Resolving this conflict requires a balancing and proportional approach enabling public functionaries to minimize the conflict by striking a balance between RTI and other rights. This article revisits the nexus between RTI and significance of the state secrecy, analyzing the conflict between them. To provide a comprehensive understanding, it includes experiences and case studies from different democratic jurisdictions. Contrary to the common perception, the article concludes that RTI and state secrecy are not inherently contradictory or inharmonious; rather, both are integral to democratic norms and effective functioning of a society. The State secrecy must be carefully specified to ensure democratic accountability. Responsible use of discretion by public functionaries regarding RTI can enhance governance and strengthen public trust in governmental institutions.

Discrepancy between Ideals and Realities: A Socio-legal Study of Women’s Rights in Pakistan

2024-08-09T11:52:23+00:00

Women’s rights have always been a sensitive part of the human rights legislation in Pakistan. Moreover, pro-women laws have never been truly implemented in Pakistan because of a host of social and institutional quandaries, broadening the disparity between men and women. Comprehending the causes of the poor implementation of these laws requires a deep analysis of their social dimensions. This paper attempts to uncover several underlying social factors that hinder the implementation of pro-women laws. It is found that the fundamental reason for the improper implementation of pro-women laws is the friction between competing moral orientations of different factions of society. In the legal system, this friction manifests itself in the form of inconsistent tendencies in law-making and judicial adjudication, plaguing the workings of the legal system. The paper recommends developing an approach to address women’s issues that prioritizes fundamental rights of women while paying due regard to Pakistan’s socio-cultural traditions.

Zakat Exemptions under Pakistani Law: An Analysis of Case Law

2024-08-09T11:53:09+00:00

Zakat is a religious fiscal obligation for Sahib-e-Nisab Muslims, holding a central space in the Islamic economic system. Its principles are described by the religion which are specific. This article discusses the jurisdiction of the Federal Shariat Court on the law of zakat. It also examines the judicial decisions of superior courts of Pakistan on the matter of exemptions in zakat (religious fiscal obligation) deduction. According to judicial interpretations of zakat laws, all those institutions that are owned by the government or in which the provincial or federal government holds majority shares are exempted from the definition of Sahib-e-Nisab. NIT Units and KDCs are exempted from tax due to payment of zakat at source, but any asset that is made and derived from them is not exempted. Zakat exemptions are available for charitable trusts and public bodies. This article concludes that tax concession will be granted for assets on which zakat is compulsorily deducted under the Zakat Ordinance in the same year of deduction. The main purpose of this concession is to avoid the burden of double taxation on the payee. However, it is recommended that exemptions based on fiqh and faith should not be permitted. Therefore, there is a need to amend the zakat system to make it consistent with the Islamic zakat system and to discontinue the compulsory deduction of zakat at source.

Impact of Money Laundering on Economic System: International Legal Framework and Corresponding Development in Pakistan

2024-09-02T05:59:06+00:00

This doctrinal mode study, based on the “Black Letter Law Method” aimed to identify the socio-economic existence, impacts, and severity of offence of Money Laundering (ML) and global regulatory response to cope with various emerging forms of ML. The study further aimed to analyze the legislative upgradations and legal setup of the Anti-Money Laundering (AML) regime in Pakistan. The operational and governance model of its Financial Intelligence Unit was also examined as well as its capacity to cope with trade-based ML offences in purview of modern practices. The study concluded that ML is an offence as much as a social norm affecting the economy through its various predicate and derivative offences and socially deep-rooted forms. Major over-hauling in operational and enforcement regime of the current Anti-Money Laundering Law of Pakistan is necessarily required. This is because it is not effective in timely detecting and combating the growing trends of ML related offences in a country striving for better economic performance, specifically offences pertaining to trade-based money laundering (TBML). The administrative model of the Financial Intelligence Unit of Pakistan, also known as the Financial Monitoring Unit (FMU), is governed under the AML Act 2020. It holds various lacunas in terms of the lack of horizontal coordination mechanism among the reporting entities, as well as centralized administrative control of FMU by the political representatives which hinders its operational, administrative, and regulatory autonomy. Moreover, there is insufficient technical expertise within the regulatory mechanism as well as incomplete and ineffective regulatory coverage over a number of business and financial sectors within the jurisdiction, coupled with the absence of standardized regulations, and non-enrollment of FMU by a global governing body.

Development of International Law: A Comprehensive Analysis

2024-09-03T10:23:41+00:00

The characterization or evaluation of international law is not sufficiently defined in the field of foreign affairs. These laws are not solely left for state interpretation nor are they effectively engrained according to the consent of states. Compulsory assessment and enforcement in international law has increased its importance in broadening up its preview and reducing the dependence on state endorsement. This study aims to thoroughly examine the origins and advancements of international law. It explores the fundamental concepts and sources of international law, including international contracts, international establishments and challenges faced by these organizations. This study discusses multinational issues like international security, human rights and environment protection, highlighting the interaction between sovereignty of states and increasing demand for global leadership in these fields. The paper discusses the obstacles and challenges encountered in the implementation of international law. It is observed that effective and well-organized operations of legal structure is dependent on universal compliance and accountability. In the modern era, implementation of latest technologies, especially AI based technologies, can be one of the best solutions to cater international issues in timely manner. By probing its basics, historical framework and challenges, this paper contributes to understanding the future trajectories of international law.

Constitution, Environment, and Global Challenges: A Study of Chinese Constitution and Environmental Treatment in China

2024-09-02T11:27:35+00:00

Studies have evidently shown that environmental disturbances cause existential threats for the entire global life. Diverse efforts have been made globally to preserve and sustain the environment and natural resources to ensure human existence. Various legal measures have been put in place at national, international, and regional levels which include constitutional provisions, environmental rules regulations, and policies. China, being a major global producer, is one of the largest contributors of global warming and also faces a number of environmental issues domestically. Therefore, the current study aimed to explore the environmental treatment by Chinese Constitution along with an analysis of environmental legal mechanism of China. Moreover, it also provided a brief picture of environment-human rights relationship and the current status of environmental constitutionalization across the world. The greatest task for China is to overcome the environmental challenges without compromising its economy. China has yet to decorate its constitution with an express environmental right, however, it places considerable significance on its protection. Since 1970s, China has been placing a progressive environmental enforcement mechanism to ensure environmental protection. Moreover, it has also enacted multiple legislative instruments at different governance levels through various enforcement bodies. A recent example is the inclusion of concept of ecological civilization in the constitution. Still, it remains a mighty task to ensure environmental sustainability, both nationally and globally, especially in the context of Belt and Road Initiative (BRI).