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Lesson#41
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ELECTRONIC TRANSACTIONS ORDINANCE 2002-ETO
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Generally speaking the term ‘Appropriate authority’ includes the
five legislative assemblies (national
assembly and four provincial assemblies), the federal government
and four provincial governments, the
Supreme court of Pakistan and four High courts, and any
statutory body working in relation to the
functions of federal or provincial governments. A statutory body
is a body/organization established under
some statute/law. For example, the Lahore Development Authority
(LDA) is a statutory body established
under the Lahore Development Act, 1975 (a provincial statute).
The Constitution of Islamic Republic of Pakistan, 1973 is the
supreme law of the country, which means that
every other law in Pakistan has to confirm to the terms of the
constitution. It contains two legislative lists at
its end, that is, the Federal legislative list and Concurrent
legislative list. The federal legislative list sets out
those items/subjects on which only the federal legislature can
make laws such as the subject related to
defense of Pakistan and armed forces etc. On the other hand,
matters contained in concurrent legislative list
are those on which both the federal and provincial legislature
can enact/make laws, such as the subject
related to marriage and divorce etc.
Section 6 of the ETO lays down the conditions for validly retaining a document in electronic form as
follows:
“6. The requirement under any law that certain document, record,
information, communication or
transaction be retained shall be deemed satisfied by retaining
it in electronic form if :
The contents of the document, record, information, communication
or transaction remain
accessible so as to be usable for subsequent reference;
The contents and form of the document, record, information,
communication or
transaction are as originally generated, sent or received, or
can be demonstrated to
represent accurately the contents and form in which it was
originally generated, sent or
received; and
such document, record, information, communication or
transaction, if any, as enables the
identification of the origin and destination of document,
record, information,
communication or transaction and the date and time when it was
generated, sent or
received, is retained.”
Note that basically the conditions for validly retaining a
document in electronic form are that such
document must be accessible for subsequent reference, it should
reliably be comparable with its original
form and its origin and destination is identifiable as also the
date and time of its generation.
Section 7 of the ETO provides legal recognition to electronic signatures and advanced electronic
signatures in following terms:
“7. The requirement under any law for affixation of signatures
shall be deemed satisfied
where electronic signatures or advanced electronic signatures
are applied.”
Note that a presumption of truth is attached to advanced
electronic signatures, which means that a court
should assume that an advanced electronic signature was validly
executed, and the burden to prove
otherwise would be on the party that denies its execution. The
difference between an electronic signature
and advanced electronic signature does not seem to be clear in
ETO. It appears that an advanced electronic
signature involves an accredited certification service provider,
whereas an electronic signature can be
executed without its help to prove authenticity and/or
integrity.
Legal documents are ordinarily required to be written/typed on
printed papers which one has to purchase
for certain value under the law, that is, Stamp Act, 1899.
Similarly, the Qanoon-e-Shahadat Order, 1984 (the
166
main law of evidence in Pakistan) also generally requires each
executed document to be witnessed by at least
two male witnesses. Copies of certain documents can be notarized
also, which would mean that a copy can
be signed/stamped by a duly appointed person called notary
public confirming that the copy relates to a
particular original document.
By virtue of
Sections 10 and 11 of the ETO, the
stamp duty and the requirement of
attestation/notarization has been waived for a period of two
years or till such time the provincial
governments devise appropriate measures. For convenience the two
sections are reproduced as under:
“10. Notwithstanding anything contained in the Stamp Act, 1899
(II of 1899), for a period
of two years from the date of commencement of this Ordinance or
till the time the
Provincial Governments devise and implement appropriate measures
for payment and
recovery of stamp duty through electronic means, whichever is
later, stamp duty shall not
be payable in respect of any instrument executed in electronic
form.”
“11. Notwithstanding anything contained in any law for the time
being in force, no
electronic document shall require attestation and notarization
for a period of two years
from the date of commencement of this Ordinance or till the time
the appropriate
authority devise and implement measures for attestation and
notarization of electronic
documents, whichever is later.”
Section 13 of the ETO talks about as to who would be deemed/supposed to have sent an electronic
communication. It is given as follows:
“13. (1) Unless otherwise agreed as between an originator and
the addressee, an electronic
communication shall be deemed to be that of the originator if it
was sent:
By the originator himself;
By a person who had the authority to act for and on behalf of
the originator in
respect of that electronic communication; or
By an automated information system programmed by, or on behalf
of the
originator.
Unless otherwise agreed as between the originator and the
addressee, the addressee is to regard
an electronic communication as being that of the originator, and
is entitled to act on that
assumption if:
The addressee has no reason to suspect the authenticity of the
electronic
communication; or
There do not exist any circumstances where the addressee knows,
or ought to
have known by exercising reasonable care, that the electronic
communication
was not authentic.”
Note that an electronic communication would be deemed to be sent
by an originator, if the originator
himself, or his attorney/representative or his automated
information system sends the same. The addressee
is entitled to treat it as the communication of the originator
if there exist no reason for a suspicion.
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