ELECTRONIC TRANSACTIONS ORDINANCE, 2002 - 1

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E-COMMERCE IT430

Lesson 41

ELECTRONIC TRANSACTIONS ORDINANCE, 2002 (ETO) (CONTINUED....)

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

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E-COMMERCE IT430

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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