Legal Cases covering Air Pollution and its After Affects

Air pollution is one of the biggest problems for the world today, and it bears significance in all parts of the globe. This article reflects on the insights of two cases based on air pollution and the steps taken by the authorities, legal fraternity and the government to handle it.

To control pollutant emissions from vehicles, a lawsuit had been filed in Pakistan in lieu to ban 2 stroke engine vehicles in the country which are a great cause of pollution. The imposition has been implemented by the government and backed up by legal bindings. Furthermore, another lawsuit had been filed in USA against a big corporation which dealt in the manufacturing and processing of iron and was causing great amount of pollution through air and water contamination.

The case of Air Pollution in Pakistan
In 2008, the Punjab Transport Department had banned the registration of two-stroke engine motorcycle rickshaws as public transport in Lahore, Gujranwala, Rawalpindi, Faisalabad and Multan. The Punjab Environment Minister had announced that two-stroke engine rickshaws would be banned from May 2008 and only four-stroke engine rickshaws, which worked on compressed natural gas, would be authorized to run in the city. The two-stroke engine rickshaws would be sent to smaller cities so the owners can still make a living out of them.

The Environment Protection Department had already presented a five-year action plan to the government to reduce vehicular pollution in four major cities of the Punjab. The department suggested a ban on the import, manufacture and grant of route permits to two-stroke engine public service vehicles, especially auto rickshaws. The plan further proposed the gradual replacement of rickshaws with taxis running on CNG. Under the plan, old CNG-fitted taxis could be issued route permits if they were in good condition. Subsequently, Taxis have replaced rickshaws in Rawalpindi and could easily replace rickshaws in the bigger cities of Lahore, Multan and Faisalabad. The plan also seeks the phasing out of buses running on diesel starting from July 2008 and replacing them with CNG buses. Two-stroke engine vehicles had already been banned in many countries and even developing nations such as India, had switched to CNG buses. The Diesel/2-stroke engines cause eight to 10 times more pollution than vehicles using petrol, and even more when mobile oil is mixed in with the diesel, a common practice prevalent among many motorists in the country. Apart from being more environment friendly, CNG rickshaws operate only on third of the operating cost, making them a better choice over the predecessor.

Meanwhile, the city district government of Lahore had also signed an agreement with Clear Air International for Asian Cities, which works under the Asian Development Bank (ADB), to control pollution in the city.

The government had taken two years to formulate the policy to ban the rickshaws which were a major source of noise and air pollution. The Supreme Court of Pakistan directed all the provinces on May 23, 2008, to deal with air and noise pollution in major cities of the country.

Prior to the formulation of these laws, the government had no alternative to two-stroke engine rickshaws as public transport. This changed with the introduction of CNG four-stroke engine rickshaws as an alternative, and the ban could be imposed. Consequently, the Punjab government banned registration of two-stroke motor-cab rickshaws (scooter rickshaws) in major cities from May 2008. Now, the government’s transport policy is that all motorcycle and scooter rickshaws should be eliminated in major cities by the end of year 2008. The air and noise pollution will be reduced greatly with the introduction of CNG four-stroke engine scooter rickshaws.

Pollution would also be reduced through the motor vehicle fitness law. The law bans vehicles emitting smoke from the city roads and the majority of the current public transport falls into that category.

The case of Air Pollution in USA
Another case emerged in the USA that depicts the impact of pollution and the steps taken by the government in collaboration with the judicial system to overcome it.
In 2008, the Pittsburgh-based U.S. Steel Corporation was ordered to pay $4.45 million to settle a class-action lawsuit by residents of Ecorse and River Rouge over air pollution caused by an Ecorse plant.

The Judge of the U.S. District Court in Detroit approved the settlement and agreed that roughly 7,000 residents were affected by smoke and metallic particle emissions from the U.S. Steel Great Lakes Works plant. The lawsuit disclosed that tests by the Michigan Department of Environmental Quality had found excessive levels of manganese emissions from the plant.

Under the terms of the settlement, the affected residents would receive $300 each, for a cumulative $2.1 million in lawsuit damages payable by the steel company and all funds that go unclaimed will be distributed to the public school district of Ecorse and River Rouge.

Conclusion
Human health and industrial actions harmful to the environment are of prime importance to every nation, and legal measures must be implemented to protect the delicate balance of our environment. Similar measures must prevail in the developing countries where industries are booming and the environment is at great risk. The cases discussed the Pakistani and US judicial system, which pursued the issue and enforced legal bindings to help protect the environment from air pollution and safeguard human health.

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Genetically Modified Food Can Harm the Environment

A legal suit has been filed in the Pakistan’s Lahore High Court by two food rights groups in opposition to the import of genetically modified Soya-bean from USA. The Pakistani government has confirmed that this transgenic variety is safe in terms of its impact on health and the environment, but this statement is contradictory to the scientific evidence in light of which the oil extracted from genetically modified food does contain protein, peptides and other nitrogenous materials, and can really put the environmental level in danger. This is because these materials are not soluble in oil production and can really endanger the environment by emitting highly dangerous waste and smoke from the factories.

The advocate bodies representing the food groups had taken this issue to court in November 2007. They had sought a stay on the import and sale of genetically modified Soya-bean and its by-products in the country. The groups challenged that genetically modified organisms should be barred in Pakistan until the government develops a regulatory framework to deal with import, sale, distribution and labeling of such food products.

“The government must formulate a regulatory framework to autonomously determine the safety aspects of such products,’ quoted one of the lawyers representing the two groups in the court.

The official government response was: “genetically modified soya oil is in use all over the world since 1996. Not a single report of any harmful effect on human health and environment has been reported.”

In contradiction to this statement, the authorities have countered certain scientifically recognized facts that protein and deoxyribonucleic acid (DNA) contamination makes it difficult to extract pure oil.

But the government has ruled out any immediate need to put safeguards in place to regulate genetically modified organisms. Currently, Pakistan has no law that bans the import of transgenic products. The country’s 1961 Food & Environment Act merely requires exporters to label products with a list of the ingredients.

In contrast, the European Parliament ratified a U.N. bio-safety protocol regulating international trade in genetically modified food in June 2003. The protocol lets countries in the European Union to ban imports of a genetically modified product if they feel there is not enough scientific evidence the product is safe and requires exporters to label shipments containing genetically altered commodities such as corn or cotton. It makes clear that products from new technologies must be based on the precautionary principle and allows developing nations to balance public health against economic benefits.

A lawyer working with the Network for Consumer Protection in Pakistan, pointed out:
“For genetically modified food, too, the government will need to introduce labeling to ensure that consumers can make their choice,”

The case remains in process, and further proceedings are yet to achieve a decision.

Pakistani law preserving the Constitutional Fundamental Rights

On January 2 2008, the supreme court of Pakistan had refused to entertain a petition against some amendments made by Pakistan Electronic Media Regulatory Authority (PEMRA), directly related to the restrictions been imposed over the Media concerning Freedom of Speech. The discussed petition had been refused under the scope of Article 184(3) of the constitution, which was directly emerging from all the formal grounds.

The petition had been truncated, under the provisional Constitutional Order (PCO) because of the fact that the judges at that time had taken an oath under the same constitutional order, which was issued on November 3 2007. To discuss more about Article 184(3) – this article gives the powers to the supreme courts to take all the necessary notice or actions of any matter involving directly or indirectly any question related to public importance, taking in to reference the enforcement of any of the fundamental rights granted by the constitution.

It also gives powers to the supreme courts to make an order by issuing an appropriate writ/summon under the Article 199 of the constitution. Though its been a fact that irrespective of courts judgments based on constitution the supreme courts have an authority to conduct a judicial review and if any part of the ordinance or the order have been found contradictory to the constitution the supreme court can make it illegal and void.

Case Conclusion
The petitioner’s counsel, upon receiving the order on the returned petition, remarked that they would file an appeal against the order. But due to the judicial review, the matter had been resolved and all those amendments contradicting with the restrictions over freedom of speech have been declared illegal and void.

Legal Cases Targeting Food and Beverage Industries

Consumer protection particularly in the food industry is of paramount importance across all countries. This case-study compares 2 such cases that recently occurred and insights into how the cases are being handled by the respective authorities and governments.

This year, in the US, a Lawsuit had been filed in opposition to soft drinks companies claiming their drinks were infected with the cancer-causing chemical benzene above that set as America’s legal limit for drinking water. Further, in India, another case has been filed which focuses the pesticides limits in soft drinks of Coca-cola and Pepsi co, the claiming party had accused these firms as they had exceeded the limit of pesticides within the drinks from the level marked by the government. If a similar case were to occur in Pakistan, there is a robust legal frame-work in which this can be handled.

Beverage industry case- US
In Feb 2008, Law firm McRoberts, Roberts & Rainer LLP had filed a class action lawsuit on behalf of a consumer against In Zone Brands, who make Bellywashers drinks, and also the Talking Rain Beverage Company. The suit claimed independent laboratory tests exposed that both companies had drinks infected with benzene, a known carcinogen, above the five parts per billion legal limits for benzene in tap water across the United States. Benzene lawsuits have now been filed in Kansas, Washington DC, Florida and Boston. This puts soft drinks firms under great pressure to eradicate or control benzene formation in their beverages. The alleged source is two widespread ingredients – sodium benzoate and ascorbic acid (vitamin C) in the drinks, these two ingredients could react to form benzene in drinks, as well as that revealing such a drink to heat could considerably hoist benzene levels.

After having the case strongly followed-up in the courts the agency re-opened its investigation into benzene in soft drinks, after it saw results from lab tests commissioned by lawyer Ross Getman and Larry Alibrandi, a concerned food scientist, who worked on soft drinks industry testing for benzene in soft drinks back in late 2007. To date the court records show that the case is still in proceeding stage and the next hearing is based on the report which is to be filed from the investigation committee.

Beverage industry case – India
Another case had been filed in April 2008 this time in the Indian beverage industry, claiming that the Coca-Cola and PepsiCo soft drinks firms have traces of pesticides in their products.

In this case India’s Health Ministry has rejected a campaign group’s study that found Coca-Cola and PepsiCo soft drinks containing pesticide residues an average 24 times above the proposed maximum limit. A team of experts, drafted in by the Ministry to examine the study, said there appeared to be errors in the testing procedure and that important data was missing. Coca-Cola said test data from the UK’s Central Science Laboratory, affiliated to the UK government, showed pesticide residues in its drinks were below the Indian government’s proposed 0.1 parts per billion limits for individual pesticides in fizzy drinks. The campaign group responded, saying its lab had used the same methods as many governments around the world, and has the international quality standard ISO 9001:2000. It has called for the Indian government to implement the proposed limits on pesticides in fizzy soft drinks, drawn up by the Bureau of Indian Standards.

Food Case handing – in Pakistan
How would such cases be handled In Pakistan? In general, the food laws are unified into one central legislation called “The Pure Food Ordinance, 1960″ with its enforcement left to the provincial governments within the policy and statutory frameworks of the Central legislation.
If handled through the courts in Pakistan a counterpart sample may be sent by the Court on its own accord or on the request of the accused for second analysis by the Chemical Examiner of Government’s lab and this certificate will be treated as sufficient evidence of the facts stated therein until the contrary is proved. Pakistan law allows that the manufacturer/vendor to adequately prepare for his defence, as any counterpart of a lifted sample is also given to the manufacturer/ vendor from whom the article is purchased or seized for private analysis. This creates a robust legal frame-work for such cases within the country.

Conclusion:
To conclude, Consumer safety is of prime concern for both of the countries, and steps like these showing the immediate reactions form the governments and authorities, indicate how the legal fraternity contributes to ensure or maintain food safety level across the world.

1. Though corporates, independent campaigners and Courts direct extensive resources and duplicate tests in these sorts of cases in parallel, the ultimate winner is the consumer, who can benefit from independent verification and quality assurance of the products they consume.
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Enforceability of lost or destroyed Negotiable Instruments/Commercial Paper

An interesting case that shows the how lost or destroyed Negotiable Instruments/Commercial Paper can remain enforceable is Atlantic National Trust, LLC v. Mcnamee, 2007.
 
The High court in Alabama held that a destroyed promissory note is still enforceable both the maker of the note, or an assignee could enforce it so long as its existence could be proven.
 
In this case a bank (Wachovia) made a loan in 2003 to the debtor, McNamee, in the amount of $150,000. For this he signed a promissory note. At some point, Wachovia inadvertently misplaced, lost or destroyed the original note. The note matured in 2005 and after the loan matured Wachovia assigned its rights in and to the note to the plaintiff Atlantic National Trust., which then sued for recovery. Atlantic demanded McNamee repay the remaining principal balance of $138,620 plus interest. The plaintiff moved for summary judgment based on an affidavit affirming that the instrument had been lost by the assignor.
 
Now Atlantic could not produce the original note, but had a copy, so the debtor defended on the grounds that the plaintiff assignee had no right to enforce the note since it was never in possession of the original document, and that the assignee of a lost note has no standing to sue the maker. Thus McNamee contended that because the original note was destroyed, the note could not be enforced. The federal court certified a question to the Alabama high court to clarify Alabama common law on that issue.
 
It was concluded that an assignee has all of the same rights, benefits, and remedies that the assignor has to enforce contracts to the extent the assignor was able to do so, hence the plaintiff assignee was entitled to enforce the note whether it was lost, destroyed, or stolen. Ultimately the evidence was clear that the note was genuine, the fact of the destruction of the original did not make it unenforceable either by the maker of the note, Wachovia, or by the assignee, Atlantic .
 
What implications does this have in the greater financial industry and banking sector?  Please share your comments below.

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Case study – Global copyright and defamation laws and judgments. Axact vs Student Network Resources (SNR).

A case that highlights the lack of unified global copyright and defamation laws, and the business and financial ramifications this has to on-line industries, is Axact Pvt limited vs Student Network Resources.

The case
On November 14, 2007, Axact Pvt limited filed a complaint in New Jersey against ‘Student Network Resources’, SNR to stop it from making or publishing any false statements against Axact.

In its complaint Axact maintained that Student Network Resources, a company involved in selling term paper to students, had used a screening name ‘Essayfraud.org’ and held itself out to be a watchdog’ organization that investigates plagiarism in academia. Axact’s claim revolved around the posting of defamatory material against Axact on this site. The complaint by Axact listed 5 causes of action: Defamation, Trade Libel, Tortuous interference with prospective economic advantage, False advertising and unfair competition and Consumer fraud all against ‘Student Network Resources’. And that day a summons was issued as to ‘Student Network Resources’.

It is important to note here that Axact had earlier followed-up to determine the owner of the website, www.essayfraud.org, who was also the poster of the defamatory material, with a series of subpoenas of discovery in another State, Utah, through another attorney. It was through these subpoenas, that the plaintiff Axact determined that the website run anonymously as an independent fraud watch-dog organization was in fact owned by the defendants, an allegation SNR officially admitted to at a later date, in their Answer to the Complaint, as per court records.

By Dec 21 2007, a notice of appearance was filed by SNR, the defendants, through their law firm and they requested an extension of time to answer, move or otherwise respond till Jan 10 2008. After about 2 weeks, on the 3rd of January, Axact’s attorney filed exhibits of the complaint filed in November. The latter’s attorney further made a declaration on personal knowledge that the ‘foregoing is true and correct’. And within that week both parties, Axact and the defendants ‘Student Network Resources’ acting through their duly authorized counsel agreed that the time for the defendants to respond could be extended till February the 4th.

SNR responded with a counter claim on Feb 4th. Here they accepted the running of both term paper selling businesses and the maintaining of the independent watchdog website www.essayfraud.org, defending all the defamatory material by mentioning that all their allegations are either true or just opinions. Near the end of February, SNR further submitted an amended answer to the complaint and a counterclaim for copyright violations by Axact and sent a Rule 11 letter to its Attorney; who had also made a mistake in obtaining one of the subpoenas and so chose no longer represent Axact. At that point, as per court records, Axact would rather have pursued the case pro se.

Default Judgement in favour of SNR – compensation US $694,750
Now as is standard in the US a corporate cannot file pro se, so it appears Axact decided not to proceed with securing other counsel and so a default judgment was entered in favor of SNR. The judgement entered the statutory damages on the Defendants’ copyright claim in the amount of $300,000, attorney fees, other fees and an injunction against Axact and any Internet search engines, Web hosts and domain-name registrars that are provided with notice of the injunction on a restriction from any future copyright violations for the works of SNR (3 copyrighted papers) by Axact.

Default judgement in favour of Axact – compensation US $6,000,000
Axact meanwhile adhering to advice form their local legal consul, filed a lawsuit in Pakistan in the High Court of Sind at Karachi, for damages and injunctions amounting US $6million and other remedies. In Pakistan the defendants opted not to join the suit even after served with several court notices/summons and so Axact received a default judgment against SNR.

Conclusion
To conclude, though both countries have strong defamation laws, neither legal process lead to an effective resolution of the underlying matters. Firstly,

1. Neither party can effectively pursue and claim their default judgment compensation amounts, as no such treaty exists; this means it is highly unlikely that either the US $694,750 in favor of SNR or the US $6million judgement in favor of Axact can be collected.

2. SNR has not secured a site stoppage order, whereas Axact has secured a site stoppage order where they have the option to have SNR’s sites closed through their default judgment issued in Pakistan, as the large ‘internet search providers’ accept such international stoppage orders.

3. In terms of exposure of their cases, Companies based in the US benefit as all such US cases are extensively shared and reported on, so they benefit from a positive or default judgement, whereas in other countries cases may not be reported so widely.

Fundamentally cases such as these will lead to businesses with operations on-line filing in their countries of origin, expecting default judgments and continuing business as usual. Ultimately it appears the lawyers benefit, but there is no net gain.

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Taxation in Pakistan

Any income received or accrued or deemed to be received from any source is liable to tax in Pakistan. However, income remitted to Pakistan by resident companies, non-resident companies and non-resident individuals is exempted from tax. Any activity is taxable which involves the supply of goods or rendering of services on which sales tax has been levied and which is carried on in the form of a business, trade or manufacturing concern.

The tax year in Pakistan is a period of twelve months ending on the 30th day of June. The taxes on incomes, sales, central excise and customs’ duty are charged on the Federal level. Income from agriculture is charged on a Provincial level. The Federal laws and rules covering taxes and duties are enforced by the Central Board of Revenue, and are as follows:

• (a)Income Tax Ordinance of 2001 & Income Tax Rules of 2002
• (b)Sales Tax Act, 1990 and Rules issued there under.
• (c)Central Excise Act of 1944 and Central Excise Rules of 1944
• (d)Customs Act, 1969 & Pakistan Customs Tariff

Pakistan has recently undergone major reforms in the taxation structure, in an effort to make the taxation procedures more comprehensible for the average Pakistanis. These have been undertaken by the Central Board of Revenue (CBR) on five levels:

1. Management and Institutional Development: Managing Organizational Change, Internal Affairs and Vigilance Function, Training, Improving Professional Ethics
2. Improving Revenue Operations: Direct Taxes, Sales Tax, Customs
3. Strengthening Revenue Services: Establishing Audit Function, Establishing Collection & Enforcement Function, Establishing Custom and Tax Fraud Function
4. Tax Compliance Culture: Establishing Taxpayers Identification, Registration, Return Processing and Accounts Function, Establishing Facilitation and Tax Education Function, Impact Evaluation, Quality Assurance and Monitoring
5. Adopting Responsive IT Systems: Direct Tax Information System, Sales Tax Information System, Customs Information system

A universal self-assessment system is in place, in which one must declare his/her income and determine his/her tax liability himself. I.T. services have been leveraged to provide the population with online tax calculations and information regarding the taxation is made available online along with correspondence facilities.

The Real Estate framework of Pakistan

The Government of Pakistan has a comprehensive legal framework in place to protect the rights of real estate owners. There are ample policies and laws that govern the sale and purchase of property in the country. Apart from federal legislation, there are local laws and legal frameworks which determine the sale, purchase and rental of real estate in different parts of the country. There is legal documentation required for the right to entitlement of land and property in the country and this includes:

1. For Real Estate Transfers including sale and purchase, the seller and buyer must fulfill mandatory legal documentation including Statute of Frauds & Part Performance, Title to Be Conveyed, Deeds, Land Descriptions, Settlement Agreement, Listing Contract, Conditions in Contracts, Delivery & Escrow and others depending on the nature of property.
2. For Real Estate Development, legal documentation includes Purchase Money Land Financing document, Mechanics Liens, Construction Loans & Other Mortgages to Secure Future Advances, Coop Apts, Conversion of Rental Housing to Condos & Coops, Planning Permission and others varying according to the nature of development.

Real Estate Law

The Pakistani Government has measures, like the DC rate list, for controlling the prices of real estate. The DC rate list is a table prepared under the authority of the Stamp Act, which is a tax statute that levies a charge on transactions based on the value of the transaction.

The Government of Pakistan has taken several initiatives to improve the real estate sector in the country. The House Building Finance Corporation (HBFC) is the Statutory Federal Body that provides financial assistance for construction and purchase of houses to the people of Pakistan in urban as well as rural areas. The National Housing Authority (NHA) was established with the primary objective of preparing short and long terms plans and policy guidelines and mobilizing financing resources for development of housing for low income groups.

The government has included the real estate sector among the drivers of the country’s economic  growth. A number of measures have been adopted to grow the housing and construction sector:

1. Elimination of excise duty on paints.
2. Significant reduction in the duties of a number of building materials including steel and its products.
3. Significant reduction in the duty on imported machinery for construction sector together with exemption from the levy of sales tax and withholding income tax.

All banks have begun lending for housing sector and with further improvement in the building regulations and administration and quick settlement of disputes in courts, banks will be further encouraged to lend for real estates. With the help of provincial governments all records of building authorities and societies will be computerized and public disclosure will be made of ownership of properties so that consumers can enter into real estate transactions without fear of misrepresentation and fraud.

Real estate deal-making involves a multitude of choices in terms of how specific transaction elements are prioritized, addressed, implemented. Just as each property is unique, so is each transaction involved with it. Indeed, very different approaches and outcomes can result from different participants’ interactions with the identical real estate interests.