Pakistan Legal Profile

Pakistan follows a common law legal system with significant Islamic law influences. Whilst the Constitution is Pakistan’s supreme law, the role of Islam is also enshrined in the Constitution. Islam is declared the state religion, whilst Part IX of the Constitution defines the Islamic Provisions which are fundamental to the State of Pakistan.

This states that existing laws must conform to the Injunctions of Islam, with regards to personal law based upon how an individual’s sect interprets the Quran and Sunnah, and that no law may be enacted which is contrary to these Injunctions.

The Constitution also establishes the Federal Shariat Court, which is empowered to examine laws and their conformity to Islam. Laws which are found contrary may be repealed and the Court may also examine cases and decisions by the criminal courts relating to the enforcement of Hudūd.[1] Only the Supreme Court may overrule such decisions. Law in the tribal areas is largely based upon tribal custom. The secretive military courts also remain active, with no right to appeal; in reality, the armed forces are beyond the authority of the government and parliament.[2]

The judiciary is widely seen as corrupt. Bribes and facilitation payments in return for favourable judgements are common, whilst nepotism and judicial interference by third parties are rife, particularly in the lower courts.

Owing to the lack of trust in Pakistan’s judiciary, many foreign investors include clauses for international arbitration in their contracts as Pakistan is a member of the 1958 New York Convention and International Centre for the Settlement of Investment Disputes.

There is also a very high risk of corruption within Pakistan’s police, who are ineffective and unreliable: businesses attribute significant costs to the issue of crime and violence.[3] As such, impunity is widespread.

Corruption also pervades through public services, procurement, economy and politics, highlighted by the 2017 resignation of Prime Minister Nawaz and the subsequent indictment of him and three of his children on corruption claims.

The antiquated Contract Act 1872 is the primary source of Pakistan’s contract law and defines consent, obligations and the voidability of contract. [4] Labour laws are governed by provincial legislation, although where a provincial law has not been passed, the federal equivalent is applicable.

Meanwhile, the Companies Act 2017 is the key commercial law in regulating corporate entities, shareholders, creditors and resolving of corporate disputes, amongst other topics.[5] The Penal Code of 1860 is still in effect, although it has been heavily amended to include aspects of Sharia, including Hudūd offences and blasphemy offences which may carry capital punishment. The Penal Code also contains anti-corruption measures relating to bribery, whilst the Prevention of Corruption Act serves as the principal anti-corruption law.[6]

Pakistan is a signatory to a number of international treaties including the Geneva Conventions, Biological and Chemical Weapons Conventions, the Framework Convention on Climate Change and Kyoto Protocol as well as International Convention for the Suppression of the Financing of Terrorism.

Pakistan is also a member of the Organisation of Islamic Cooperation, International Monetary Fund, World Health Organisation and the Commonwealth. Pakistan’s compliance with international law, especially concerning human rights and intellectual property, is often debated.

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References

[1] https://www.constituteproject.org/constitution/Pakistan_2015.pdf?lang=en.

[2] https://www.bti-project.org/fileadmin/files/BTI/Downloads/Reports/2016/pdf/BTI_2016_Pakistan.pdf.

[3] http://www.business-anti-corruption.com/country-profiles/pakistan.

[4] http://www.punjabcode.punjab.gov.pk/public/dr/Contract%20Act,%201872.doc.pdf;

[5] https://uk.practicallaw.thomsonreuters.com/1-504-4890?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1;  http://www.na.gov.pk/uploads/documents/1487136261_767.pdf.

[6] http://www.business-anti-corruption.com/country-profiles/pakistan.