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PAKISTAN ELECTRONIC TRANSACTION ORDINANCE
to recognize and facilitate documents,
records, information, communications and
transactions in electronic form,
and to provide for the accreditation of certification
service providers.
WHEREAS
it is expedient to provide for the recognition and facilitation of
documents,
records, information, communications and transactions in electronic
form,
accreditation
of certification service providers, and for matters connected therewith
and
ancillary
thereto;
AND
WHEREAS the President is satisfied that circumstances exist which render
it
necessary to take immediate action;
NOW,
THEREFORE, in pursuance of the Proclamation of Emergency of the
fourteenth
day of October, 1999, and the Provisional Constitution Order No. 1 of
1999,
read
with the Provisional l Constitution (Amendment) Order No. 9 of 1999,
and in exercise of all powers enabling him in that behalf the President
of the Islamic Republic of Pakistan is pleased to make and promulgate
the following Ordinance:—
CHAPTER
1
PRELIMINARY
1 .
Short title, extent
and commencement.—(1) This Ordinance
may be called
the
Electronic Transactions Ordinance, 2002.
(2)
It extends to the whole of
(3)
It shall come into force at once.
2.
Definitions.—(1) In this Ordinance, unless there is anything
repugnant in the
subject
or context,—
(a)
“accreditation certificate”
Council
to a Certification Service Provider;
(b)
“Accredited Certification Service Provider”
Provider
accredited under this Ordinance to issue certificates for the use of
its
cryptography
services;
(c)
“addressee”
electronic
co
(d)
“advanced electronic signature”
either—
(i) unique to the person signing it, capable of identifying
such person,
created in a
person using it, and attached to the electronic docu
relates in a
docu
(ii) provided by an accredited certification service provider
and accredited
by the Certification Council as being capable of establishing
authenticity and integrity of an electronic docu
(e)
“appropriate authority”
(i) in relation to ite
Constitution of the Isla
Legislature or Federal Govern
(ii) in relation to ite
Constitution of the Isla
Federal law is in force, the Federal Legislature or Federal
Govern
and, in all other cases, respective Provincial Legislature
or Provincial
Govern
(iii) in relation to the functions of the Federal Govern
Provincial Govern
statutory body ; and
(iv) in relation to
Courts are e
proceedings, the Supre
(f)
“authenticity”
signature,
the identification of and attribution to a particular person or
infor
(g)
“auto
(h)
“certificate”
the
purpose of confir
infor
signature
in respect of which it is issued;
(i)
“Certification Council”
Council
established under Section 18;
(j)
“certification practice state
certification
service provider specifying the practices it e
the
issuance of certificates and
(k)
“cryptography services”
contents
of an electronic docu
understood
or decoded by any unauthorized person;
(1)
“electronic” includes electrical, digital,
wireless
or electro
(
co
(n)
“electronic signature”
characters
or any co
incorporated
in or associated with an electronic docu
of
authenticating or approving the sa
integrity,
or both;
(o)
“infor
signals,
software, co
code;
(p)
“infor
sending,
receiving, storing, reproducing, displaying, recording or processing
infor
(q)
“integrity”
or
advanced electronic signature, the electronic docu
or
advanced electronic signature that has not been ta
(r)
“inter
sending,
receiving, storing or processing of the electronic co
the
provision of other services in relation to it;
(s)
“network service provider”
services;
(t)
“originator”,
docu
any,
but does not include an inter
(u)
“person” includes an individual, appropriate authority, trust,
waqf, association,
statutory
body, fir
other
entity whether registered or not;
(v)
“prescribed”
(w)
“repository”
certificates
or other infor
(x)
“security procedure”
(i) is agreed between parties;
(ii) is i
reasonably secure and reliable ; or
(iii) in relation to a certificate issued by a certification
service provider, is
specified in its certification practice statement;
for establishing the authenticity or integrity, or both,
of any electronic
docu
(y)
“subscriber” means a person who subscribes to the services
of a certification
service
provider;
(z)
“transaction” means an act or series of acts in relation to
creation or
perfor
(aa)
“valid accreditation certificate” means an accreditation certificate
which has
not
been suspended or revoked.
CHAPTER
2
RECOGNITION AND PRESUMPTION
3.
Legal recognition
of electronic forms.—No
document, record, information,
communication
or transaction shall be denied legal recognition, admissibility, effect,
validity,
proof or enforceability on the ground that it is in electronic form
and has not
been
attested by any witness.
4.
Requirement for
writing.—The requirement under any law
for any document,
record,
information, communication or transaction to be in written form shall
be deemed
satisfied
where the document, record, information, communication or transaction
is in
electronic
form, if the same is accessible so as to be usable for subsequent reference.
5.
Requirement for
original form.—(1) The requirement under
any law for any
document,
record, information, communication or transaction to be presented or
retained
in
its original form shall be deemed satisfied by presenting or retaining
the same if:
(a)
there exists a reliable assurance as to the integrity thereof from the
time when
it
was first generated in its final form ; and
(b)
it is required that the presentation thereof is capable of being displayed
in a
legible
form.
(2)
For the purposes of clause (a) of sub-section (1);
(a)
the criterion for assessing the integrity of the document, record, information,
communication
or transaction is whether the same has remained complete and
unaltered,
apart from the addition of any endorsement or any change which
arises
in the normal course of communication, storage or display ; and
(b)
the standard for reliability of the assurance shall be assessed having
regard to
the
purpose for which the document, record, information, communication or
transaction
was generated and all other relevant circumstances.
6.
Requirement for
retention.—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 :
(a)
the contents of the document, record, information, communication or
transaction
remain accessible so as to be usable for subsequent reference;
(b)
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
(c)
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.
7.
Legal recognition
of electronic signatures.—The
requirement under any law
for
affixation of signatures shall be deemed satisfied where electronic
signatures or
advanced
electronic signature are applied.
8.
Proof of electronic
signature.—An electronic signature
may be proved in any
manner,
in order to verify that the electronic document is of the person that
has executed
it
with the intention and for the purpose of verifying its authenticity
or integrity or both.
9.
Presumption relating
to advanced electronic signature.—In any proceedings,
involving
an advanced electronic signature, it shall be presumed unless evidence
to
contrary
is adduced, that:
(a)
the electronic document affixed with an advanced electronic signature,
as is
the
subject-matter of or identified in a valid accreditation certificate
is
authentic
and has integrity; or
(b)
the advanced electronic signature is the signature of the person to
whom it
correlates,
the advanced electronic signature was affixed by that person with
the
intention of signing or approving the electronic document and the
electronic
document has not been altered since that point in time.
10.
Stamp Duty.—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.
Attestation and
notarization.—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.
12.
Certified copies.—Where any law requires or permits
the production of
certified
copies of any records, such requirement or permission shall extend to
printouts
or
other forms of display of electronic documents where, in addition to
fulfillment of the
requirements
as may be specified in such law relating to certification, it is verified
in the
manner
laid down by the appropriate authority.
CHAPTER
3
ELECTRONIC DOCUMENTS
13.
Attribution of
communications.—(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:
(a)
by the originator himself;
(b)
by a person who had the authority to act for and on behalf of the originator
in
respect
of that electronic communication ; or
(c)
by an automated information system programmed by, or on behalf of the
originator.
(2)
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:
(a)
the addressee has no reason to suspect the authenticity of the electronic
communication;
or
(b)
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.
14.
Acknowledgment
of receipt.—(1) Unless otherwise agreed where
the
originator
has stated that the electronic communication is conditional on receipt
of
acknowledgment,
the electronic communication is treated as though it has never been
sent,
until the acknowledgment is received.
(2)
Where the originator has not agreed with the addressee that the
acknowledgment
be given in a particular form or by a particular method, an
acknowledgment
may be given by:
(a)
any communication, automated or otherwise, by the addressee ; or
(b)
any conduct of the addressee, sufficient to indicate to the originator
that the
electronic
communication is received.
15.
Time and place
of dispatch and receipt of electronic communication.—(l)
Unless
otherwise agreed between the originator and the addressee, the dispatch
of an
electronic
communication occurs when it enters an information system outside the
control
of the originator.
(2)
Unless otherwise agreed between the originator and the addressee, or
unless
proved
otherwise, the time of receipt of an electronic communication is determined
as
follows:
(a)
if the addressee has designated an information system for the purpose
of
receiving
the electronic communication, receipt occurs:
(i)
at the time when the electronic communication enters the designated
information
system ; or
(ii)
if the electronic communication is sent to an information system of
the
addressee
that is not the designated information system, at the time
when
the electronic communication is retrieved by the addressee;
(b)
if the addressee has not designated an information system, receipt occurs
when
the
electronic communication enters and information system of the addressee.
(3)
Sub-section (2) applies notwithstanding that the place where the information
system
is located may be different from the place where the electronic communication
is
deemed
to be received under subsection (4).
(4)
Unless otherwise agreed between the originator and the addressee, an
electronic
communication is deemed to be dispatched at the place where originator
ordinarily
resides or has his place of business, and is deemed to be received at
the place
where
the addressee ordinarily resides or has his place of business.
(5)
For the purpose of this section:
(a)
if the originator or the addressee has more than one place of business,
the
place
of business is that which has the closest relationship to the underlying
transaction
or, where there is no underlying transaction, the principal place of
business
;
(b)
if the originator or the addressee does not have a place of business,
reference
is
to be made to the usual place of residence ; and
(c)
“usual place of residence” in relation to a body corporate,
means the place
where
it is incorporated or otherwise legally constituted.
16.
Electronic documentation
of appropriate authority.¾ ¾(1) Nothing
contained
hereinbefore shall confer a right upon any person that any appropriate
authority
should
accept, issue, create, retain, preserve any document in electronic form
or effect
monetary
transaction in electronic form.
(2)
Any appropriate authority pursuant to any law or procedure:
(a)
accepts the filing of documents, or requires that documents be created
or
retained;
(b)
issues any permit, certificate, licence or approval ; or
(c)
provides for the method and manner of payment, procurement or transaction
may
notwithstanding anything contained to the contrary in such law or procedure:
(i)
accept the filing of such documents, or creation or retention of such
documents
in the form of electronic documents;
(ii)
issue such permits, certificate, licence or approval in the form of
electronic
document ; or
(iii)
make such payment, procurement or transaction in electronic form.
(3)
In any case where an appropriate authority decides to perform any of
the
functions
in clause (1) (i), (ii) and (iii) of sub-section (2) may specify:
(a)
the manner and format in which such electronic documents shall be filed,
created,
retained or issued;
(b)
when such electronic documents has to be signed, the type of electronic
signature,
advanced electronic signature or a security procedure required;
(c)
the manner and format in which such signature shall be affixed to the
electronic
document, and the identity of or criteria that shall be met by any
certification
service provider used by the person filing the document;
(d)
control process and procedures as appropriate to ensure adequate integrity,
security
and confidentiality of electronic documents, procurement,
transactions
or payments; and
(e)
any other required attributes for electronic documents or payments that
are
currently
specified for corresponding paper documents.
CHAPTER
4
CERTIFICATION SERVICE PROVIDERS
17.
Certification
Service Providers.¾ ¾(1) Nothing in this Ordinance
shall
impede
or in any way restrict the rights of any certificate service provider
to engage in
the
business of providing certification services without being accredited.
(2)
No person shall hold himself out as an accredited certification service
provider
unless
he holds a valid accreditation certificate issued under section 24 by
the
Certification
Council.
CHAPTER
5
CERTIFICATION COUNCIL
18.
Establishment
of the Certification Council.—(1)
Within sixty days of the
promulgation
of this Ordinance, the Federal Government shall, by notification in
the
official
Gazette, constitute an Certification Council to be known as Electronic
Certification
Accreditation Council.
(2)
The Certification Council shall be a body corporate with perpetual succession
and
a common seal, and shall by the said name sue or be sued.
(3)
The Certification Council shall comprise of five members, with four
members
from
the private sector. One of the Members shall be designated as the chairman.
(4)
The members of the Certification Council shall be appointed by the Federal
Government
for a term of three years and shall be eligible for reappointment once
for an
equal
term after the expiry of their first term of appointment.
(5)
No act or proceeding of the Certification Council shall be invalid by
reason