In re : INDUSTRIAL RELATIONS- ORDINANCE (XXIII of 1969) AND OTHERS vs NOT

ORDER

AFTAB HUSSAIN, C. J.-The labour problems have now assumed a very important aspect in the politico-social sphere. Although the nineteenth century was a century of abolition of siavery, but the industrial era brought with it new problems of employer and employee relationship. Initially- there was no labour problem, as such people were employed in professions in which the owner or the head of trading institution was requested by persons interested in learning the trade to act under him as apprentices. Their object being to learn the trade, they initially worked without wages.

After some time some small allowance was paid to them which was increased in the ratio of utility of the apprentices. The wages were determined generally by the law of supply and demand and were generally sufficient to make two ends meet.

2. Before the Industrial era, very few persons were employed, but after the Industrial revolution and mechanization of industry, a large number of workers had to be employed. The employer was always motivated by the consideration that he should recruit labour as cheap as possible and force them to work as many hours a day as possible, without caring a bit whether the economic compulsion would be harmful or detrimental to their health or well-being. Thus, started a period of near slavery and forced labour, because the labourer had to yield to the demand of the employer.

He could only resist at the risk of losing the employement. The wages were so low that they could hardly relieve starvation at the brink of which he and his family stood. The wish for prosperity was a desire for the unattainable and a cry for the moon.

3. Even children and women had to work long hours for small wages without any other benefit. The condition of the industrial worker was not better than that of a slave or serf.

4. With the era of mass production, which was the result of setting tic of tools Industries, the need for ordinary labour diminished and skilled workers were more in demand Some Industries turned out skill worker too, but they were as bereft of any right as the ordinary workers. The result was that the entrepreneur earned considerable profits as a result of exploitation of the working class. This was one of the main causes of the wealth being concentrated in the hands of a few persons.

5. Initially Socialist and Communist theories were a reaction against this form of exploitation which came to be known as Capitalism and the only object of which has been acquisition in terms of money This is the exact opposite of the idea of earning a livelihood which dominated all precapitalistic systems, particularly the feudal handicrafts economy (Islamic Economics by M. A.

Mannan pp. 36, 37). Capitalism had come to signify a religion of money or Dollar Dictatorship in which the role of labour was little above the role of slaves. The industrial workers had neither the will nor the strength to challenge this Dictatorship and to wrest from it even the subsistence wages The workers were then awakened to the need of co-operation among themselves and of trade unionism, in order that they may be able to put up joint demands for sharing the benefits of the Enterprises, at least to the extent of extractinz from the entrepreneur, just wages, which may be sufficient for the upkeep of their families. These demands were later extended to deman s for other benefits as those of housing, education, medical facilities and Bonus etc.

6. Some of the objectives of the co-operative efforts were raising of the dignity and honour of the workers as human beings, the acquisition of equal wages and equal rights for men and women, and distribution of the benefits of wealth and prosperity among all the parties including workers. As expected, the entrepreneur was the most unwilling party to concede even reasonable demands of the workers. He had a marked superiority over them since the supply of labour had never been a problem to him and he had always been in a position to dictate terms to the recruits. This only aggravated class conflict and widened the gulf between the rich and the poor.

For this reason the State had to step in with the object of not only bettering the conditions of the workers but also creating harmony between the demands of the two contending parties in the interest of industrial and economi development of the country.

7. The International Labour Organization has done a yeoman's job in this respect. This Organization was created after World War I, by the Peace Settlement of 1919 as an affiliated agency of the League of Nations with the object to facilitate the improvement of conditions of labour and living standards throughout the world.

8. After the United Nations was established during the World War H, the International Labour Organization became the first of the specialized agencies to be affiliated with it, in 1946. The functions of the I. L.

0. And its working may be gathered from the following extracts :- "The functions of the I. L.

0. Include the development and promotion of standards for national labour legislation and practice to protect and improve conditions of work and living. It provides technical assistance in social policy and administration and in manpower training and utilization and fosters co-operative organizations and rural industries. Labour statistics are compiled, and research is conducted in the social problems of international competition, unemployment and under-employment, labour and industrial relations, economic development, and technological change (including automation).

The I. L.

0. Is also concerned with the protection of international migrants, the safeguarding of trade-union rights and other human rights and the attempt to associate labour with economic and social decisions. It also encourages a continuing exchange of ideas among representatives of the world's governments, workers and employers-together with the I. L. O.'s own staff. In its first decade, the I. L.

0. Was concerned primarily with legislative and research efforts, with the definition and promotion of proper minimum standards of labour legislation for adoption by member States and with arranging for collaboration among workers, employers, Government delegates, and the office professional staff. During the 1930s the I. L.

0. Sought ways to combat world wide unemployment and economic depression. Its proposals of extensive international public works were, however, too far ahead of their time to influence nation the decision-makers. After World War 11 the breakup of European Colonial empires and the claims of the developing nations brought forth new tasks for the I. L. O. ; its membership was no longer predominantly that of European, economically developed states but increasingly that of the underdeveloped states of the third world. The I. L. O.'s major emphasis shifted, therefore, to the area of human rights and to technical assistance and similar work in the interest of the countries of Asia, Africa, Latin American and Europe itself."

9. It would appear from Article 23 of the Charter of the League of Nations that I. L.

0. Was established inter alia with the object to secure the betterment of conditions of labours.

Caluse (a) of Article 23 is as follows :- "Subject to and in accordance with the provisions of international conventions existing or hereafter to be. Agreed upon, the Members the League :-

(a) Will endeavour to secure and maintain fair and human conditions of labour for men, women and children, both in their own countries and in all countries to which their commercial and industrial relations {{TABLE}} Si.

No,No, of Con- ventionDate of Title Ratification 1 23 4 1No, 1 Hours of Work 14-7-1921 (Industry) Conven- tion, 1919 2No, 4Night Work (Women) 14-7-1921 Convention, 1919 3No, 6Night Work of Young 14-7-1921 Persons (Industry) Convention, 1919 Date of Denunciation 5 The convention can be denounced at any time as no specific date has been given in the provisions of the convention. -do- -do- {{TABLE}} extend, and for that purpose will establish and maintain the necessary international organizations."

10. After the Second World War, a Conference was held in Philadelphia (USA) in 1944 and the following Principles were embodied in the Declaration known as Declaration of Philadelphia :-

(1) Labour is not a commodity.

(2) Freedom of expression and association are essential to sustained progress.

(3) Poverty anywhere constitutes a danger to prosperity everywhere.

(4) All human beings, irrespective of race, creed or sex have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity of economic security and equal opportunity.

11. One of the most important functions of this Organisation is to adopt conventions and make recommendations in its annual conferences. The member States ratify the conventions and put them into practice. Recommendations provide guidance on policy, legislation and practice.

Between 1919 and 1975, 143 Conventions and 151 Recommendations were adopted by the member States. Some of these conventions relate to freedom of association, labour administration, industrial relations, working conditions, social security (including sickness as old age benefits), occupational safety and health. When a Government ratifies a convention, it must report to the I. L.

0. Compliance with ratified Convention is supervised by a committee of independent experts drawn from all parts of the World and by a tripartite committee of the International Labour Conference. There is special procedure to investigate complaints of infringements of trade union rights.

12. Upto the end of the year 1974, one hundred and thirty-seven States were enrolled as members of I. L.

0. The first session of I. L.

0. Was held in 1919 and the 59th Session in 1974. Pakistan became its member on 31st October, 1947.

Pakistan has so far ratified thirty Conventions. The last Convention No, 118 was ratified on 27-3-1969.

(See History of Trade Unionism and Role of I. L.

0., by Mian Nisar Ahinad Saleem).

13. The list of Conventions ratified by the British Government from 1921 to 13-8-1947 and thereafter by Pakistan is given below :- {{TABLE}} 4 No,1 No, 14 6 No, 15 7 No, 16 8 No, 18 9 No, 19 10 No, 21 11 No, 22 12 No 27 13 No, 29 14 No, 32 15 No, 41 16 No, 45 17 No, 59 18 No, 80 Right of Association 11-5-1923 The convention can be (Agriculture) Conven denounced at any time tion, 1921 as no specific date has been given in the provisions of the convention. -do--do- -do--do--do- -do--do- 9-3-1992 1-5-1992 30-10-1984 Weekly Rest (Industry) 11-5-1923 Convention, 1921 Minimum Age (Trim- 20-11.1922 mers and Strokers)

Convention. 1921 Medical Examination 20-11-1922 of Young Persons (Sea)

Convention, 1921 Workmen's Compensa- 30-9-1927 tion (Occupational Dis- eases) Convention, 1925 Equality of Treatment 30-9-1927 (Accident Compensa- tion) Convention, 1925 Inspection, of Emig- 14-1-1928 rants Convention, 1926 Seamen's Articles of 31.10-1932 Agreement Conven- tion, 1926 Marking of Weight 7-9-1931 (Packages Transported by Vessels) Convention, 1929 Forced Labour Conven- 23-12-19 57 tion, 1930 Protection against Acci- 10-2-1947 dents (Dockers) Con- vention (Revised) 1932 Night Work (Women)

Convention (Revised)

1934 22-11-1935 Since we have Convention No, 89 ratified the revised it ipso jure involves the immediate denunciation of this convention.

30-5-1987 Underground Work 25-3-1938 (Women) Convention, 21-2-1991 This Convention has been revised by Convention No, 116.

1935 Minimum Age (Industry) 26-5-1955 Convention (Revised)

1937 Final Articles Revision 25-3-1948 Convention, 1946.

1985 19 No, 81 Labour Inspection Con- 10-10-1983 7-4-1980 vention, 1947 20 No, 87 Freedom of Association and Protection of the 14-2-1951 4-7-1990 Right to Organise Convention, 1948 21 No, 89 Night Work (Women) 14-2-1951 27-2-1991 Convention (Revised)

1948 22 No, 90 Night work of Young 14-2-1951 12-6-1991 Persons (Industry) Convention (Revised) 1948.

23 No, 96 Free-Charging Employ- ment Agencies Convention (Revised) 1949 26.5-1982 18-7-1991 24 No, 98 Right to Organise and 26-5-1952 18-7-1991 Collective Bargaining Convention, 1949 25 No, 105 Abolition of Forced 15-2-1960 17-1-1989 Labour Convention, 1957 26 No, 106 Weekly Rest (Commerce and Offices) Convention, 1937 15-2-1960 2-6-1989 27 No, 107 Indigenous and Tribal 15-2-1960 2-6-1989 Populations Convention, 1957 28 No, 111 Discrimination (Employ- ment and Occupation) 24-1-1961 15-6-1990 Convention, 195g.

29 No, 116 Final Articles Revision 17-11-1967 Convention, 1961 30 No, 118 Equality of Treatment 27-3-1969 25-4-1984 (Social Security), Convention, 1962

14. Some recommendations of the I. L.

0. Were also accepted by the Government of Pakistan. Their list is as follows :- Sl. Number of Brief Description Date of No, Recommen- of acceptance dation Recommendation by Pakistan Remarks Mal 1 2 3 4 5 1 No, 88 Vocational Training 20-10-1953 Accepted with the excep- (Adults) Recom- tion of its paragraphs mendation, 1950 5(4)(b) 17 : 19 : 26, 27, 1 2 3 4 5 28, 29, 30, 31, 32, 33 and 34.

2 No, 91 Collective Agreements Recommendation, 1951 3 No, 92 Voluntary Conciliation and Arbitration Recommendation, 1951 4 No, 94 Co-operation at the 28-8-1954 level of the undertaking Recommendation, 1952 5 No, 96 Minimum Age (Coal 20-5-1957 Mines) Recommendation, 1953 6 No, 97 Protection of Workers 20-5-1957 AcCepted with the tion, 1953 Health Recommenda- (b), (c) and (d) ; 3(3) ; exception of its paragraphs, 2(1) ; 3(1) (a) 4(1) (a) (b) and (c) ; 5:6 and 13.

Besides this it has been specified by the Governments of Pakistan, that the accepted provisions of the recommendation in their application would be limited to the places of employment covered by the existing national law and regulations only.

16-9-1959 Accepted with the 7 No, 98 Holidays with Pay exception of para- Recommendation, 1954 graph 14 of the re- comendation. The Government of Pakis- tan have further specified that the provision of the recommenda- tion in their case would be applicable to workers, covered by the legislation on factories. Shops a commercial establishments.

20-7-1959 Accepted with the 8 No, 102 Welfare Facilities Re- exception of its para- commendation, 1956 graphs 10, 12, 29, 30, 31, 32, 33 and 34.

10 No, 105 11 'No, 106 12 No, 107 29-12-1959 Accepted with the' exception of its paragraphs 1, 2, 4, (1) and 7.

27-2-1960 27-2-1960 27-2-1960 27-2-1960 31-12-1960 Accepted with the exception of its, paragraph 8.

24-3-1962 17-9.1967 17-4-1970 17-4-1970 9 No, 103 Weekly Rest (Commerce and Offices) Recommendation, 1957 Ships Medicine Chests Recommendation, 1958 Medical Advice at Sen Recommendation, 1958 Sea-farers' Engagement (Foreign Vessels) Recommendation, 1958 13 No, 108 Social Conditions and Safety (Sea-farers), Recommendation, 1958 14 No, 111 Discrimination (Employ- ment and Occupation) Recommendation, 1958 15 No, 113 Consultation (Industrial and National Levels) Recommendation, 1960 16 No, 117 Vocational Training Recommendation, 1962 {{TABLE}} 17 No, 129 Communication within the Undertaking Recommenda-tion, 1967 18 No, 130 Examination of Grievances Recommendation, 1967 (See History of Trade Unionism and Role of I. L.

0. By Mian Nisar Ahmad Saleem).

15. Pakistan, therefore, is not working in isolation and labour laws drawn by it have international support and backing. In fact the International Conventions have been provided with sanction by their incorporation in the laws of Pakistan.

16. Islam is a `been' which provides guidance for the Muslims in all fields including the economic field. The contribution of Holy Quran, as well as, Ahadis literature, in this direction is marvellous and astounding. Islam is the first religion to propagate in this class-dominated and class-split world the concept of equality between man and man and to proclaim the creation of a acciety, in which if any preference is given. It is given to those who are more pious and God-fearing. In this respect the address of the Holy Prophet in Hajjatul Wada stands as a model for creation of a classless society in the world which must be free of exploitation or of any mischief. The Prophet said :- "0 People Beware Your Sustainer (4-y) is one and your father is one (Adam). An Arab is not superior to a non-Arab nor is a non-Arab superior to an Arab nor (is there any superiority) of a red on black or a black over the red except by virtue of (the degree) of piety. Have I transmitted this to you ?

' People said it is transmitted : ' The Prophet then asked "what is the day today?" They said it (Yom-i-Haram)e. Inviolable day. He then asked what is the month ? They replied r!.' A-4 He said Allah has rendered inviolable amongst you your blood, your property and your dignity and honour, like the inviolability of this day, tins month and this city.

' Musnad Imam Ahmad Volume V, page. 37 Seerat-i-Mustafa by Allama Abdul Mustafa Al Azhari, pages 415-416, Seerat-ul-Nabi by Allam. Shibli Vol. 2, page 155).

' The Prophet said : ' Each Muslim is the brother of another Muslim and all Muslims are brothers among themselves. (Al Mustadrak by Hakim Vol. 1, page 93, and also see Majma-ul-Zawaid Vol. 8, page 84 on the authority of Tahavi in which it is stated that there is no superiority of a white over a black man).

' The Prophet said : "Feed your bondsmen with what you eat and clothe them with what you clothe yourself" (Ibne Saad, Seerat-ul-Nabi by Shibli Noamani Vol. 2, page 156).

17. It was clarified that, all men are equal and nobody has preference over another except on the basis of piety. The Prophet not only condemned blood feud but proclaimed them to be at an end.

Interest (Ribah) which is another form of exploitation of the poor or needy by the rich was eliminated from the Muslim Society. The underlying idea in the Ahadis relating to contract is the elimination of fraud, misrepresentation, undue benefit, undue influence and unjust enrichment.

' The Holy Prophet applied all possible means to improve the lot of slaves who were considered in those days to be an indispensable part of the world economy. He directed that they should be given the same food as the master himself eats, should be clothed with the same clothes which he wears, should be treated well and should not be made to work harder than can be done and endured by the master himself. Politeness in dealing was also directed.

' The Hadis is as follows :- ' They (your bondsmen or servants) are your brothers. God has assigned, them to your control. So whoever has his brother under his control shall feed him from what he himself partakes and clothe him with what he himself wears and shall not impose on him a task harder than him (he can himself perform). If you impose such work on him, help him also in doing it.

' Bukhari (Urdu trns.) Vol. 1, page 98

19. The Hadis points out that the relations between an owner and his slave and between an employer and an employee are fraternal and a bondsman and an emloyee should be treated to be equal to the master or the employer. The two are not master and servo or master and slave but they are brothers. It also follows that the employee or bondsman or worker is entitled to as good food and clothes as is eaten or donned by the employer and consequently the wages payable to a worker should be such as may enable him to live a decent life.

20. In another Hadis related by Abu Hurairah it is said that the Prophet said : When a servant belonging to any of you prepares your food and brings it to you, you should make him sit with you, at dinner and if you cannot make him sit with you, you should give him same food for he has worked hard and borne heat of cooking."

(Bokhari, Abdu Daud, Tirmizi quoted in Economic Doctrines of Islam Vol. 2 page 267).

21. This is a direction not only to reward the worker but also to honour him. The use of the words "make him sit with you at dinner" is very sigi.Ificant and meaningful. These words show the worker's equality and fraternity with the owner.

22. The general principle laid down by Islam is that the believers are brethren (Q. 49 : 10, Q. 9 . 11) and there should be no disunity amongst them (Q. 3 : 103). According to Abu Musa the Prophet said ! "Believers are in relation to another as (part of) a body, one part of which strengthens the other (Bokhari, Economic. Doctrines of Islam, ibid., page 262).

23. This is a general principle applicable to all but the Holy Prophet gave specific direction to regulate by the same kinship or fraternity the relations between the master and the slave or the master and the servant. (Bokhari Vol. 8 page 15, Islamic Economics edited by Khurshid Ahtnal page 181, Article on objective of the Islamic Economic Order by Muhammad Umar Chapra.

24. The Holy Prophet (p. b. u. h.) said ! "Whoever humiliates or despises a Muslim, male or female for his poverty or paucity of resources, will be disgraced by God on the day of Judgment.

(Musnad Imam Ali Al Rida Beruit, 1966, page 674, quoted from Chapra's Article ibid).

25. The Principle of equal treatment before the law emerges most force- fully from the following Hadis "Communities before you strayed because when the high committed theft they were set free, but wi en the low committed theft the law was enforced on them. By God, even if Fatima, daughter of Muhammad committed theft, Muhammad would certainly cut her hand :"

(Tirmizi Volume 1 (Urdu translation) page 646 printed Muhammad Saeed and Sons, Karachi).

' The Hadis incorporates not only principle of justice but also of non dircrimination.

26. In order to get rid of the curse of slavery, the making of free men slaves was condemned in most unambiguous manner ; and restrictions were put on their sales.

27. The Prophet prohibited the sale of free man. He said : Allah says I will be opposed to three persons on the Day of Judgment, secondly a person who sells a free man,........" (Sahee Bokhari, Kitab-ul-Ijara, Ch. 1408 Hadith No, 2114).

28. The Qur'an provides for availing Zakat for the liberation of slaves (Q. 9 : 60). It also provides for obligatory manumission in some cases (e.g. Q. 58 : 3 and Q. 4 : 92). ' Thus, liberation of a slave is a duty.

29. It is well-known that Hazrat Umar decreed that if a slave girl gave birth to a child from the owner she could not be sold or inherited and after the death of owner, she becomes free.

30. There is a tradition that if a slave is owned by two persons one of, whom frees him, he cannot be made to act as a slave and will be freed one payment of amount assessed as the price of the other half, which shall have to be accepted by the other co-owner. If he is not possessed of means he shall be allowed to work and earn money to discharge the debt. (Bokhari, Ch. 1574 Hadith No, 2327).

31. Hazrat Umar decreed that no Arab can be made a slave.

32. It is on account of such teachings that Hazrat Bilal, although a freed slave is highly respected among the Muslims and instances are not lacking when one time slaves became rulers of big territories in the Islamic world.

33. Zaid was a slave of the Holy Prophet, but he was treated like a son and when his relatives approached the Holy Prophet with a request for grant of freedom to him, the Holy Prophet had no objection, but Zaid refused to part with him and preferred the service of the Holy Prophet over association with his immediate and close relatives.

34. Hazrat Umar once decided a case of two slaves, who had stolen a camel belonging to the complainant. He first passed order of cutting of their hands, but then reviewed it, after inquiry from the slaves about the reasons which compelled them to commit the crime. They explained that treatment of their master was harsh and he did not feed them well. Hazrat Umar, thereupon called the master and directed him to pay double compensation for the loss of the camel to the owner thereof. (llamul Mawaqqteem by Ibn-e-Qayyim, Vol. III, p. 11, printed Beirut).

35. Islam is a religion which considers slaves to be human beings and not chattels. It provides for them equal reward for their virtues, but while providing for equal and lawful rights, it reduces their liability to half. A free adulterer or adulteress if unmarried, is punishable with 100 stripes for adultery but a slave is punishable with fifty stripes only. According to Ahadith the sentence of stoning to death is given for the offence of adultery if committed by a married person, whereas a slave whether married or unmarried, male or female, can be punished with only 50 stripes (Q. 4 : 25).

36. It has been related by Abu Huraira that the Holy Prophet decided that the Hadd of a slave is half of that of a free person if it is divisible like the Hadd of offence of adultery if committed by an unmarried free person or Hadd for Qazf and drinking. (Jamul Fawaid by Muhammad Suleman Vol. I, p. 495, Hadith No, 5366).

37. The Holy Prophet is said to have declared that Khilafat is for a person from amongst the Quraish, but the authenticity of this is disputed by some of Ulema, while others found it applicable up to a particular age. But it is not disputed that the Holy Prophet said that you must obey your Imam, even he by a disfigured slave.

38. Islam encourages "mukatabat" i,e, contract between slave and the master for purchase of the former's liberty by earning wages. In the Hadith referred to above in which a co-owner manumitted his share in a slave, it was directed by the Holy Prophet that the value of slave for the other share shall be assessed by the just people and amount will be paid to their master and if it lab not possible for him to pay it, the slave will be asked to earn wages and then pay the amount. (Ahadith Nos. 2326 and 2327, page 574, Saheeh Bokhari (Urdu translation), Vol. III).

39. Abu Masud Ansari reports that one day he was beating his slave when he heard a voice from behind "0 Abu Masud ! You should know that God has greater power over you". Abu Masud said "When I looked back there was the Holy Prophet. I at once said : "0 Prophet of God. I free this slave to seek the pleasure of God". The Holy Prophet said : "If you had not done this, fire of Hell would have burnt you". (Muwatta Imam Malik, Vol. H, p. 385).

40. Umar used to go to the suburbs of Madina and whenever be found any person doing harder work than he could bear he helped him to lighten his burden. He was very strict in protecting the rights of labour. He himself very strictly observed all the regulations concerning labour and forced others to comply with them. When he went to Jerusalem to sign peace Covenant with the Christians, he and his slave rode by turns on one camel. When they entered the gates of the city, it was the turn of the slave to ride and Umar was walking on foot.

41. The only instances in which persons were made salves during the period of Holy Prophet or his rightful Caliphs are of those persons who were arrested during wars. This was one of the modes prevalent in the world for dealing with the prisoners of war. In a way this system proved more beneficial for prisoners of war captured in Jihad. The alternative modes in the world were either to liquidate the prisoners of war completely or to keep them in concentration camps and make them work collectively and suffer all types of harshness, misery and privation including starvation. Those who were kept in such camps by the Nazis and the Japanese during World War II can better realise the fate of such prisoners fourteen centuries ago when complete savagery was the rule. But Islam did not approve of either elimination and killing of prisoners of war or any other method of making their lives miserable. It approved of the distribution of the prisoners among the members of the Ummah who were bound to treat them as brothers and members of the household.

42. An important principle approved by Islam is of ",-''.:11-...;1 r1,5-1" (Ikrame-Insaniyat) i,e, dignity and worth of the human person about which the Holy Quran is very explicit. It says : "Verily we have honoured the children of Adam. We carried them on the land and the sea and have made provision of good things for them, and have preferred them above many of those whom we created with a marked preferment. (Q. 17 : 70). r.4:14aj {{ARABIC TEXT}}r1.4.1.6 jj p.:11 (0.444-, rff _ )1/4.,4.17 tau.

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43. Man was honoured by Allah from the time of his creation. This is evident from the protest of Iblis against the divine order to prostrate before him. The honour conferred upon man made Iblis a rebel. He said Q. 17 : 62 : Seest Thou this (Creature) whom Thou hast honoured! Above me, if Thou give me grace until the Day of Resurrection I verily will seize his seed, save but a few.

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44. Allah honoured mankind and rendered it the duty of man to honour others specially those who cannot look after themselves. Such are orphans as well as the down trodden and the lowly. This is clear from the following verses of Surah AI-Fajr (The Dawn) :- Q. 89 15 : As far man, whenever his Lord trieth him by honouring him and is gracious unto him. He saith : {{ARABIC TEXT}}0 I Lib '3 4.4AS 01) 0414 ' My Lord honoureth me. Q. 89 : 16 : But whenever He trieth him by straitening his means of life, he saith : My Lord despiseth me. {{ARABIC TEXT}}0 it't.1 ,.$1,,) J.04 Q. 89 : 17 : Nay, but ye (for your part) honour not the orphan.

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Q. 89 : 18 : And urge not on the feeding of the poor. {{ARABIC TEXT}}0 c*.).,6.0.3

45. An episode from the story of Prophet Joseph is very revealing and pertains to honouring even those of the mankind who have been purchased. Q. 12 : 21 : And he of Egypt who purchased him said unto his wife : Receive him honourably, Purchance he may prove useful to us or we may adopt him as a son. Thus We established Joseph in the land that We might teach him the interpretation of events. And Allah was predominant over His affairs, but most of mankind know not. Ea;c:ljl {{ARABIC TEXT}}0S13.14 J.. ,,f I vj IveJ j41.4 C.74 ot}:441 CS111 j.4 JIS t..L.Ir.,1 t^ g...

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46. Thus, honour is also for those who are called slaves. This concept of honour is common to all mankind. There is higher category of honour too but it is weighed with scales in piety :- Q. 49 : 13 : 0 mankind ! Lo ! We have created you male and female, and have made you nations and tribes that ye may know one another Lo ! The noblest of you, in the sight of Allah, is the best in conduct. Lo ! Allah is Knower, Aware. )l 14:1 St;,,

45. The word `-)5" (Karrama) or its derivatives used in these verses mean to honour, to revere, to venerate and treat with deference. The word means to be noble, high-minded, noble-hearted, magnanimous, generous, liberal, magnificent, precious.

46. The word `rj<11' (alkaram) means a quality which is an antithesis of meanness which was considered by the Arabs to be the worst trait Karam was, therefore, held to be the best quality in man, rather the word connotes all that is most virtuous or all that is best. The reference is to the superior qualities in him.

49. The declaration "el .Ali" "Verily we have honoured the children of Adam". (Q. 17 : 70) means that mankind is not only honoured by Allah and is vested with the above qualities but he is also directed to be honoured by his fellow beings. Veneration for man is one of the basic human rights recognized by the Quran and if anyone is more honoured (Q. 49 13) it is on account of his obedience to the laws of Allah.

50. This concept abolishes all distinction based on authority whether secular or pertaining to Church, or authoritarianism, capitalism, colonialism, colour or wealth, prosperity or down troddenness. Man is honoured because of the common quality of humanity.

51. The Holy Quran revolutionised the standards of superiority and honour and supplanted them by the uniform standards of dignity and equality of the entire mankind rather than of the quantitatively few. (See Lughatul-Quran, Vol. 3, page 1427 on the word `Karramal.

52. In this respect Quran draws a distinction between man and other animals. While killing an animal for food is legal the killing of a human being is said to resemble the killing of the entire manKind and saving one life is like saving the life of the entire mankind. (Q. 5 : 32).

53. The simile of 'entire mankind' emphasises not only the horror of the deed but also the uniform standard of dignity of an honour and respect for every human being. The killing of a poor, down trodden, helpless man-even if he be a slave or a labourer-has the same consequences as the killing of an emperor, chief or the wealthiest person. Quran prohibited infanticide and killing of daughters obviously on this principle. (Q. 17 : 32, 6 : 141, 81 : 8).

54. Quran also declares that there is life in Qisas (i,e, equal treatment). Qisas does not exactly mean retaliation and vengeance. It means equalization, that is doing to the criminal what he did to another human being. If someone kills a human being he is liable to be executed unless the heirs of the deceased pardon him. (Q. 2 : 178-179).

55. These verses do not promote or project any blessings of killing another person. Far from it, they carry to its logical conclusion the principle : "Whosoever killeth a human being for other than slaughter or corruption in the earth, it shall be as if he had killed all mankind and whoever saveth the life of one, it shall be as if he had saved the life of all mankind" (Q. 5 : 32). Qisas is based upon the principle of prevention of crime (1) by punishing the criminal, (2) by its serving as an admonition to others, (3) by satisfying the urge of the victim or his heirs to see the criminal being subjected to the same treatment to which he subjected his own victim, and thus stopping future blood feuds. This is a safety valve against vengeance and future killings and is in the last analysis a life saving device The Quran provides for saving the life even of a criminal (See Q. 2 : 178) by allowing the heirs of the deceased to pardon him. Tbus, in its ultimate analysis there is life in Qisas because it helps in saving other lives. Those who view Qisas as something cruel have fallen into the fallacy of ignoring the psychological impact of a crime upon the victim or other persons thereby affected. Islam takes note of human psychology in this respect but side by side initiates Muslims in the blessings of pardon.

56. This point can better be appreciated by a reference to the pre-Islamic concept of Qisas.

Contrary to the law laid down by Islam about individual liability that only the person committing the crime is liable for his deed, in jahiliya (era of ignorance) the liability for killing of a person of another tribe was collective and it resulted either in war involving the two tribes or in the death of one or several persons of the other tribe-not necessarily of the actual criminal-if that tribe succumbed to the demand of the tribe to which the deceased belonged. Blood money (Diyat) could also be paid but the rule was seldom followed on account of the contempt which it aroused, if practised.

57. The Quran abolished the collective responsibility in Qisas and decreed that it could be wreaked only against the person who slew or injured the victim. It also provided for the alternative of pardon.

It revolutionised the mental attitude towards Diyat (blood compensation). The result was that the stigma and contempt attached to its acceptance ceased. The tribal wars also came to an end.

This change in the behaviour of tribal people is sufficient commentary on the principle that there is life in Qisas.

58. The abolition of Qisas would provide immunity to monstrous designs of other criminals, thus endangering the security and peace of peaceful citizens. If in the last analysis the formulation of question be whether wisdom lies in curbing criminality to the possible extent by the execution of those who committed the crime of murder, or in aggravating criminality by providing immunity of life to the killers, the answer would undoubtedly be in favour of Qisas which Islam has tampered with mercy for the repentant criminal. The preponderating idea is that of dignity of man and one who interferes with that dignity must be dealt with accordingly until he shows repentance to the satisfaction of the victim or his family.

59. Labour has never been considered by Islam to be anything undignified. All lawful means of earning livelihood are honourable e.g. Grazing of animals, self-cultivation of land, working in the fields, working in industries on wages. The Holy Prophet said that there is no messenger of Allah who did not graze goats People asked "you also grazed goats?" He said "Yes, 1 used to graze goats of the Meccans for a few Qeeraat" (Sahih Bokhari) Kitab-ul-ljara, Ch. 1400, Hadith No, 2107. It is well- known that in Medina after Hijra the companions of the Holy Prophet including his rightful Caliphs had been earning their livelihood by labour. They worked as field or garden labourers. They carried and pursued other callings. The Prophet discouraged begging by able-bodied persons -and exhorted them to work and earn their livelihood.

60. There is a well-known Hadith that a companion asked the Holy Prophet for some charity. He enquired from him if he had anything with him. He said that he had a piece of cloth and a cup for drinking water. The Holy Prophet asked him to bring these things. When be brought them, the Prophet auctioned them for two Dirhams and gave them to him with the direction that one Dirham was for his family and from the other he should purchase an axe. When he brought the axe the Holy Prophet fixed a handle to it and asked him to go out, cut wood, sell it and return after a fortnight, Wben he returned after the fixed time, he said that he had ten Dirhams with him, which he had saved after purchase of the clothes and food required by him. The Holy Prophet said that this is better for you and that if you begged you would have been shame-faced and disgraced on the Day of Judgment (Abu Daud).

61. From this instance it is proved that only beggary is shameful and undignified and not honest labour whatever be its nature. On the other hand work inculcates not only the love of labour but also gives to the labourer new dignity and stature.

62. The Holy Quran and the Sunnah have emphasised the importance of labour in order to provide incentive for work. Reference may be made to the following verses of the Holy Quran and Ahadith :- Q. 53 :

39. "There is nothing for man but what he strives for."

4)1....1V1 Q. 4 :

32. "For men is the benefit of what they earn. And for women is the benefit of what they earn."

Q. 41 :

10. "There is a guaranteed share for those who seek and endeavour."

Q. 8 :

53. This is because God never changes a favour which He has conferred upon a people until they change their own condition."

' The Prophet said :

(1) No one has earned a better living than the one who has earned with his own hands (labour). The Prophet David earned (his living) with his own hands.

(Bukhari, Vol. I, page 461, Hadith Nos. 1912-13).

(2) If one of you should take a rope and bring a bundle of firewood on his back and sell it (to earn his living) it would be better for him than begging from others."

(Ibid, page 461, Hadith Nos. 1914-15).

(3) "Beg not anything from the people (Abu Dawood)."

(4) "The upper hand is better than the hand which is below (Bokhari and Nasai)."

(5) "The best earning is the earning of the labour with one's hands provided he (worker) performs his duty honestly (Majmaul Zawaiad Vol.., p. 98)."

(6) "A man has not earned better income than that which is from his own labour (1bne Majah and Nasai)."

(7) "To earn an honest living is a duty next to the main obligation of offering prayer (Mishkat-ul- Masabih, Kitab-ul-Buyu)."

63. The Prophet sought refuge from poverty and scarcity and equated the same with ignominy. The Quran directed people to earn. The Prophet prohibited beggary which is degrading and inculcated in the Muslims the blessings of labour. From these premises as said by Dr. Muhammad Omar Chapra "one may infer that one of the economic goals of a Muslim society should be to create such an economic environment that those who are willing to and looking for work are able to find gainful employment in accordance with their abilities. If this is not accomplished then Muslim society cannot succeed even in its spiritual aims, because those unemployed would be subjected to a life of extreme hardship unless they depend on the dole, or resort to begging or immoral practices, all of which, particularly the last two would be repugnant to the spirit of Islam. (See 'Islam' edited by Khurshid Ahmad, pp. 175, 176).

64. It was on account of such teachings that notwithstanding the establishment of Muwakhat QUIJ.-, or brotherhood among the early Mohajireen and Ansar of Medina, the former preferred to work and earn their livelihood. An illuminating tradition to this effect is from Abdul Rehman bin Auf.

He said : "When we came to Medina, the Prophet created Muwakhat or brotherhood between me and Saad bin Kabee. Saad was the richest among the Ansar and wanted to give me half of his wealth and one of his two wives (in marriage). I declined to accept the offer but asked him to direct me to a trade centre. He told me of Qanuqah Bazar. I went there next morning and bought some curd and butter oil (for sale) and then I went there every day (to carry on this business)" (Bukhari, Vol. I, page 248, Hadith Nos. 961-2).

' In another tradition it is reported that once the Ansar asked the Holy Prophet to divide their date trees between them and the Muhajireen, the Holy Prophet did not allow this. But when the Ansar asked the Muhajireen to work in their gardens and share the produce with them, they readily accepted the offer. (Bukkari, Vol. .1, page. 519, Hadith No, 2145).

65. The Companions not only worked for earning their livelihood but also for contributing to charity.

It is related by Saeed bin Yahya bin Saeed on the authority of Shaqib on the authority of kbu Masud Ansari that when the Prophet ordered us to give in charity AA., one of us would go to the market, carry loads there, acquire one mudd (measure) of grain (and then given in charity). Some of them now own hundred of thousands (in money).- (Bukhari, Kitab-ul-Ijara, Ch. 1411, No, 2117).

66. During the reign of Hazrat Umar, a young man with strong physique entered the mosque and asked if any one would assist him in Jihad (fighting in the name of Allah). Hazrat Umar called him and, holding his hand, asked the people if there was any one who would employ him on his land.

An Ansari agreed to employ him. Hazrat Umar enquired about the wages he would get and then asked him to go with that Ansari. After a few months, when Hazrat Umar came to know that the man was doing very well, he asked the Ansari to bring him with the money he had earned. The man was brought before Hazrat Omar alongwith his purse full or Dirhams. Hazrat Umar then asked him to take the purse and either go for Jihad or to his home (Kanz-al-Urnmal, Vol. V, p. 159).

67. It can be inferred from this that primarily it is the duty of each Muslim to earn his livelihood and to be an active member of the Ummah. He should strive to earn not only for himself but also for spending in Jihad, and for charitable purposes.

68. The duty of looking after the poor and destitute neighbour, relations and members of the Ummah then rests upon all others who are rich or prosperous and even the less fortunate should work not only for feeding themselves and their families but also for alleviating the misery of others.

In every community there may be persons who are not able to work or earn their livelihood. There may be others who despite striving for it are not able to earn enough to make two ends meet. Such are entitled to financial assistance from Zakat and Sadaqah (Q. 9 :60). ' They are also entitled to be helped by those who can afford to assist them. The Prophet said :- "0 son of Man : That thou give with your own hands the super-1 abundance (of thy wealth) is better for thee ; and that thou withhold it is bad for thee, thou ought not to blame for a sufficient subsistence: and begin with him who is of Kin (to them) (From Abu Umarah, Muslim, Tirmizi, Sayings of Muhammad by Abdul Fazal No, 96).

' And said : "None deserves to be envied except two men,

(1) he whom God has given wisdom and who decides according to the same, and teaches it to others, and

(2) the man whom God hath given wealth and he spends it usefully (by Ibne masud, Bukhari, Muslim, Sayings of Prophet, No, 430).

69. Now Islam is a way of life with checks and balances. The responsibility to help others is no doubt primarily ethical in character but what is merely ethical today may be enforced tomorrow through law. It realises the spirit of enterprise in man and wonders he can perform by the use of it. The Deen allows a Muslim to earn what he likes from among the; good things of the earth by use of all lawful means. There is no maximisation, or limit or ceiling on such earning. But it prevents him from hoarding it, rather it exhorts him to spend and not to let money lie idle. In Islam avarice, stinginess, parsimony and niggardliness are disapproved. But then Islam also stops a man from being a spendthrift. He has to choose the middle course. There are two ways in which money can be spent without a person incurring the charge of niggardliness or extravagance. Either the surplus money may be further invested to increase production and the national wealth or it may be spent on charitable purposes for national and individual welfare. Charity may be for the amelioration of individual e.g. Member of the family, neighbour or others, or it be for ameliorating the lot of groups.

In either case it is highly approved Those who consider and to, have a right in their property are considered to be highly praiseworthy Muslims.

70. It is stated in the Qur'an that such persons - rijor-- (i,e, those in need and in a state of deprivation) are entitled to a fixed share in the property of others but those who treat them to be entitled to share (without limit) are certainly more preferred. For this reason the Prophet said that in your property there are other rights too apart from the liability to pay Zakat. The Holy Qur'an says : (0 Prophet) people ask you : what should they spend and you say (in answer) ".".a.e" (all that is surplus) (Q. 2:219).

71. This is the basis on which rest the traditions entitling a person to have food and shelter for three days in any place which he visits. The liability to feed and accommodate him is that of the person living there. There are traditions that a guest can obtain satisfaction of this right even by force.

72. Hazrat Umar awarded Diyat when a person died of thirst because the people of the locality refused to give him water. He expressed his intention to award Diyat if a person knowingly and voluntarily fails tO feed a starving person who dies as a consequence of starvation.

73. It is not, therefore, the sole responsibility of the Bait-ul-mal or the ruler to provide to the needy his basic necessities of life. It is the duty of the entire Ummah rather of every person to see to the comfort of his neighbours or the destitutes. The Imam or the ruler acts only as the representative of the Ummab.

74. This policy does not only inculcate a source of co-operation and love among the people, uproots the feeling of jealousy of the poor or oppressed towards the rich or the prosperous but also eliminates the difference between the haves and the have-nots.

75. The ultimate responsibility for satisfaction of the basic needs of the people lies on the State (See Q. 59 : 7-8, Q. 9 : 60, Q. 4 : 6).

76. The following traditions reinforce this principle :- "Allah and His Messenger are the guardians of those who have no guardian airmizi)."

"The ruler is the guardian of one who has no guardian (Tirmizi)"

"One who leaves behind wealth, (it) is for his family, and I am responsible for the dependents (one leaves behind) (Tirmizi) in straightened circumstances. (Kitab-ul-Amwal by Abu Ubaid, P. 220)."

' One whom Allah the Almighty the Exalted puts incharge of some of the affairs of the Muslims and he turns his back on their needs and necessities and poverty, Allah will turn His back on his need and necessities and poverty (Abu Dawood)."

77. These are the general principles of brotherhood among Muslims and of close fraternal co- operation between the rich and the poor, the wealthy and the downtrodden, the fortunate and the unlucky. It regulates the relation between the master and slave and emphasises that a bondsman is not a commodity. He is a human being entitled to be treated as such. Like others his dignity is also inviolable. It also similarly regulates the relationship between an emyloyer and employee and between master and servant. It strikes a balance between the two in order to create lasting harmony. If on the one hand it does not fix any ceiling on earning, on the other hand it lays down guiding principles for spending the wealth, for consumption and for saving. If it allows trade it regulates market mechanism. If it gives free rein to enterprise it also lays stress upon the dignity of work and labour. The eoncept of exploitation of the weak by the strong is absolutely foreign to its ideals. It cannot countenance such a law of supply and demand that from a crowd of starving workers the capitalist may select those who accept his offer of wages below subsistence level and be wiling to work under bad or insufficient hygienic conditions for long hours fixed by him. It imposes a duty on the employer to look to the comfort and well being of the employee, to treat him as his brother and not to allow him to work harder than that which he is capable of. In case of his failure the State can step in to give effect to Shariah requirements. Similarly the workers cannot be allowed to let an industry standstill in order to impose their unreasonable will and demands.

78. The world economy was quite simple in the early period of Islam but it had full realisation of the concept of self-interest amor g the rich and the weak bargaining power of the poor and the starving. Similarly it realises the danger of a combination of workers who may group together to insist on unreasonable demands of very high wages. It deals with the rights and liabilities of both because in the happiness and contentment of both the segments of population lies a guarantee for national harmony as well as the desirable increase in output which on the one hand may check an undesirable increase in prices and on the other advance the growth of national as well as per capita income.

79. The contractual relationship between employer and labour is governed by definite principles.

The Qur'an lays down : Q. 2 : 279 : Wrong not and you shall not be wronged. Q. 46 : 19 : And that he may pay them for their deeds and they will not be wronged. Q. 53 : 39 : And that man can have nothing but what he strives for. Q. 3 : 161 : Then shall every soul be paid in full what it hath earned and they will not be wronged.

Q. 2 : 286: God does not burden any human being with more than he is well able to bear."

80. The Qur'an administers a warning against wrong doing and emphasises that a person can be requitted for the amount of work done by him and that he cannot be asked to do more than what he is capable of. Applying these principles to employer and employee relationship it would mean that both of them should desist from committing wrong and do full justice to their role. The labour is required to work and the employer is required to pay him full for the work. The employee cannot be burdened with more work than he is capable of doing and the employer cannot be burdened with wage increase or other demands which he is not capable of meeting, keeping in view the nature of his business.

81. An important rule is that the wages of a worker should be paid without delay.

82. The Prophet said "pay the worker his wages before the drying of his sweat. (Bukhari, Vol. 1 pages 462) and then 'non-payment of the dues by a rich person is cruelty (Baihaqi, Vol. VI, page 27).

83. The Prophet said that Allah said : "I will be opposed to three (types of) persons on the Day of Judgment, thirdly the person who engaged a worker made him perform his duty fully but did not pay his wages (Bukhari. Kitab-ul-ljara, Ch. 1408, Hadith No, 2114).

84. Another principle is that the contract between the employer and the employee should be specific and unambiguous in respect of his terms and conditions of employment i,e, the wages he is to be paid, the work he is to do and the time limit for the work he is to do. The Prophet forbade the employment of labour without settling their wage. (Baihaqi, Vol. VI, page 13).

85. It is related by Hummad bin Abu Suleman that a person enquired from him about the verdict in regard to engagement of a labourer on condition that he may eat food. He replied that this should not be done Without settlement of wages (Kasai, Vol. III, page 49 (Urdu).

86. Yet another principle is that a worker should not be made to bear more burden than he is capable of. The Prophet said " impose such burden (on the workers) which they may bear (Bukhari (Urdu), Vol. III, page 232). In a similar tradition of Muwatta (pp. 192, 384-5) it is said : "and take from him such work which he can do". In yet another tradition it is stated that the Prophet said : "and do not impose on them task which may be too hard for them and if you impose it upon them, then help them in performing it (Bukhari, Vol. III, p. 232)."

' The principle is as stated by the Prophet in another tradition : "None of you will be a perfect believer, unless he wishes for his brother Muslim what he wishes for himself (Baihaqi, Vol.

1. p. 9)."

' It is said in Muhalla by Ibne Hazm that it is obligatory on the employer to subject the employee only to such amount of work which he can do easily. He should not be made to work so bard that it may affect his health (Islam ka Iqtisadi Nizam, page 295).

87. Although the principle is that wages should mutually be settled but the Sharia furnishes sufficient guidance in respect of wage level orthe minimum wages.

88. Reference has already been made to a tradition in which the Prophet said that Allah would be the opponent of three persons i,e, one who makes a promise in the name of Allah and breaks it, the other who sells a free man and the third one who engaged a labourer, made him work and did not pay his wages", (Bukhari, Kitab-ul-Ijara, Ch 1408, page 2114). In Baihagi the word wages is qualified by the word 'reasonable' which means that the wages which are the wages which are to be paid should be reasonable.

89. In another tradition the Holy Prophet said : "Give food and clothing to the servants according to the prevalent custom and impose such burden that they can bear." (Bukhari, Urdu Translation, Vol. Ill page 232).

90. The traditions quoted in relation to treatment of slaves are also applicable to servants.

' The Prophet said : ' They (your slaves or servants) are your brethren. God has placed them under your control ; so whoever has his brother under his control should feed from what he himself eats and give similar clothes which he himself wears and don't impose on them task which should be too hard for them.

If you impose on them such task then help them in performing (the same) (Ibid., p. 232).

91. The Prophet emphasised the need of giving moderately good food and clothing to the employee which means that the minimum wages should be such from which good food and clothes may be purchased.

92. Uthman the third Caliph is reported to have said : "Do not over burden your unskilled female employee in her pursuit of a living, because if you do so, she may resort to immorality, and do not over burden a male subordinate, for if you do so, he may resort to stealing. Be considerate with your employees and God will be considerate with you. It is incumbent upon you to provide them with good and lawful food. (Muwatta Imam Malik) (See 'Islam' edited by Khurshid Ahmad, pages 182-4, Dr. Muhammad Umar Chapra's Article "Objectives of the Islamic Economic Order)."

93. Ibn-e-Hazm said that it is not material if the wages are not mentioned in a contract of emp oyment of labour as customary wages will be paid on the principle (what is directed by the custom is as if stipulated in law) (Ela-us-Sunnan, Vol. 16, page 213).

94. Allama Kasani said that if a labour contract is Fasid in the sense that it does not provide for some condition (of wages), customary wages will be payable to the labourer. According to him there is consensus of jurists on the point that where wages are not settled, customary wages are payable (Badai-us-Sanai, Vol. IV, page 218) (The same principle is laid down in Fatawa-e-Alamgiri, Vol. IV, page 412). There is a maxim that "a thing known by common usage is like a stipulation which has been made (section 43 Mejella).

95. There is also a maxim as to how custom is to be determined.

"A thing known amongst merchants is as they fixed by stipulation between them."

96. As already stated the labour laws in this country are based upon I. L.

0. Conventions and recommendations which are also adopted by other countries of the World. The I. L.

0. Is working after the First World War and has made important contribution in this respect. In one sense 1. L.

0. Conventions and recommendations are international conventions in the nature of treaties which the Signatory Governments should follow according to Shariah too. In another sense these Conventions enjoying as they do general acceptability, can be said to be laying down world customs.

97. There is no Shariah bar for the State to determine terms and conditions of employment and if knowing them a person employs labour he shall be treated to have agreed to those terms and conditions. In this sense the provisions of these laws have a contractual significance 'and according to Qur'an it is incumbent upon the Muslims to fulfil their pledges, their contracts. The labour laws are justifiable for this reason too.

99. There is sufficient guidance in Islam in respect of minimum wages. Minimum wages are wages which should be equal to at least the subsistence level from Much the labourer may fulfil nis requirement of necessities according to the prevAiling custom. As the family organisation is a part of social set up in Islam the wages should be sufficient for the sustenance of the dependents too.

But then what is meant by substenance.

99. The Qur'an says :- "And there is no animal in the earth but on God is its sustenance." (Q. 11 : 6).

100. Allah's promise to Adam throws lurid light on this point. Qur'an says : "Q. 20 : 118 : It is (vouchsafted) unto thee that thou hungerest not therein nor art naked.

"Q. 20 : 119 : And thou thirstest not therein nor art exposed to the sun's heat."

101. These verses define sustenance as food, clothing, water and shelter which is the duty of tne vicegerent to procure.

102. A tradition is reported in Musnad Imam Ahmad, Vol. II, page 387 which goes further than the above principle. Ihe Holy Prophet advised his Companions ! "Give a share to the labourer from his work because no worker of God is sent back unrewarded".

103. Imam Ghazali described this with reference to Masalhi (d102.4) which generally means acquisition of benefit and elimination of damage. But he uses the word in a more elaborate sense.

He uses it in the meaning of objectives of Shariah wIlich extend to the protection of five things i,e, (1)

Deen (religion), (2) Aql (rationality and intelligence) (3) Nafs (self of a human being), (4) Nasl (progeny), and (5) Mal (property). Any means of protection of these five is known as Maslaha () and whatever harms or destroys them is Mafsda (i,e, corruption or mischief) removal of which is also Maslaha.

104. The Maslaha in view of its importance and significance is of three kinds : (1) Necessities (Zaruriyat) (2) Conveniences (Hajiyyat) and (3) Refinements (Tahsiniyat).

105. Necessities are the highest form of Maslaha and the protection of the above five things falls in that category. Punishment to an innovator in religion is protection of Deen. Qisas ensures protection to life. Punishment of drinking liquor protects rationality and intelligence which is affected by intoxication. Punishment for adultery guards the legitimacy of progency and punishment of thieves affords protection to property.

106. Conveniences (Hajiyyat) is the second category of Maslaha e.g. The authority of the Wali (guardian) over a minor. Though it is not necessary but it is a means of attainment of "4,e1,.2.4"

(vlastaha). The authority of the Wali may also differ. When the authority extends to securing for the children food, clothes and training (,z-re/Y) etc. It becomes a part of Zaruriyat. In other matters it may tall within the category of conveniences.

107. The third category of Tahsiniyat may be illustrated by the adoption of better means in matters of worship and public and private dealings (iz.7-.1^4) (Al Mustasfa, Vol. 1, pages 286-293).

108. The above classification is not much concerned with the economic behaviour of man unlike the econo nic classification of necessities, comfort and luxuries but it appears that all which is necessary to sustain a person like food, clothes, shelter, medical facilities and even education of children are included in the term 'necessities' in the acquisition of which all hurdless should be removed.

109. Shatibi, however, is more specific in Al Muwafaqat, Vol. II (pp. 8-25). He maintains the same t iree categories and the classification of necessities, i,e, preservation of religion, life, progeny, rationality and intelligence and finally wealth. He explains the preservation of life on the principle of "O.)t.a" (Adah) i,e, customary way and says : "The principles of Adah (O.51A) are based on the (instinct of) preservation of life, rationality and intelligence (for which man needs) to eat and drink, to have clothes and home etc."

110. Shatibi subdivides necessities as (1) those which are urgently required for protecting life e.g. Food, home, dress, marriage, contracts of sale, means of sustenance on which his life is basically dependent and (2) those which are not so urgently required

111. According to him Shariah objectives are either fundamental (A:s.1,01) or subordinate or dependent (4.413). Fundamental objectives are those which a person who is responsible or accountable must achieve without consideration of pleasure motive, in all circumstances in all ages and at all times since they are considered as necessities by (all) nations and in their achievement lies the common and absolute good.

112. These necessities are Ainiyya (individual duty) and Kifaiyya (group duty).

113. So far as Ainiyya is concerned every person is under a duty . . To preserve his life, intellect or intelligence so as to remain capable of obeying other Sharia orders, to preserve his offspring so as to ensure better relations between parents and children and to preserve his property to enable him to preserve the other four referred to above.

114. But the group obligation or the social obligation (41:05-) is (as (distinguished from the duty of each individual or the collective .Duty obligatory for all the individuals. This (duty) is relatable to the protection of common interests without which the individual interest cannot be served. This second kind supplements the first one, and consequently they are also necessary. Individual necessities cannot be achieved without the realisation of social necessity. Social obligations are for the common good of the entire creation. Any action taken in this behalf does not revert to a specific person, because it is not for him alone. (If it had been for him alone) it would be Ainiya (individual duty). These actions are really for the existence of a humanity (a person). The fact is that he is the vicegerent of God amongst His servants to the extent of his own capacity. Whatever ability he has for this, a single individual does not have the capacity to protect his own interest muchless the interest of his family, tribe or the people at large. Allah appointed the humanity His Vicegerent for fulfilment of common needs. This is the reason for establishment of State.

115. The principles which emerge from this discussion are : "(1) It is primarily the duty of the individual to work for the fulfilment of his five needs including the need of feeding, clothing and providing shelter to himself and his family. This is the discharge of his individual obligation.

(2) The fulfilment of individual needs is also largely dependent upon the discharge of the duty by the society (,,,?.115.- cf_ri) who must help according to their capacity and ability.

(3) Ultimately the State is to help in the fulfilment of common good of the society which includes the fulfilment of needs of individuals too as part of totality of individuals."

' According to Nawavi, socially obligatory duties include "elimination of suffering by providing clothes to the uncovered, food to the hungry (Minhajul-Talibin wa Umdatul Muftin, page 125).

116. Ibn-e-Hazm is more specific on this issue. He says :- "It is the duty of the rich in every country to support their poor. If the Zakat revenue and tax does not suffice for this purpose the ruler will oblige them to fulfil their responsibility. Enough funds will be mobilised for these (needy people) to provide them with food, clothing for summer and winter, and a house that protects them from rain, heat and sun and gives them privacy" (Al Muhalla, Vol, 6, page 156).

(Cited from the paper 'Guarantee of a Minimum Level of Living in an Islamic State- Basis in Sharjah, Rational and Contemporary implications' by Dr. Najatullah Siddiqui contributed at the Second International Conference on Islamic Economics-Islamabad 1983)."

117. Muwakhat (brotherhood) introduced by the Holy Prophet in Medina for the amelioration of the economic condition of the Muhajirin is based on the same principle.

118. It is generally said that the State has no right to interfere with private property, free enterprise, free trade, prices charged or chargeable by businessmen or industrialists, relations between employer and employee, relations between master and servant or between lanilord and tenant or between agent and principal, right of contract etc. None of these concepts holds good in Islam.

They ate misconceptions created during the era of feudalism and have now been inherited by Capitalism.

119. Islam confers very wide jurisdiction on the Imam or the State to regulate ownership, enterprise, industry, industrial relations, trade, trade ethics, the producer-consumer relationship in relation to the cost of things produced, occupation of houses required for accommodating the shelterless and their rent, relationship between the owner of land and the tenant and relationship between the employer and the employee. Generally these matters pertain to the field of contract but [slam allows contracts to be regulated and the contracting parties to be made subject to discipline in order that public welfare may be ensured and mischief may be subdued and eliminated. This would be clear from the discussions in Fatawa Ibn-eTaimiya, Vols. 28 and 29.

120. While dealing with the power of men in authority like the Muhtasib and others, Imam Ibn-e- Taimiya mentions the regulatory laws pertaining to contracts in the Qur'an and the traditions of the Prophet. The Muhtasib has a duty to see inter alia that there is no breach of trust and people should be restrained from what is prohibited like lies and falsehoods, breach of trust, reduction in weight or measures, adulteration or fraud at the time of production, sale and lending of things. Allah says :- Q. 83 : 1 Woe unto the defrauders. {{ARABIC TEXT}}0 artili.Il J.11 Q. 83 :2 Those who when they take the measure from mankind demand if full. {{ARABIC TEXT}}0 4...).A,L..1 04:11 jr.

1.4 1::5-1 Q. 83 : 3 But if they measure unto them or weigh for them, they cause them loss. {{ARABIC TEXT}}O o3,-;.0. r.z0 Jj e_ov ISIS Q. 6 : 153 Give full measure and full weight in justice. {{ARABIC TEXT}}0 01:72J1.., Q. 26 : 181 : Give full measure, and be not of those who give less (than the due). {{ARABIC TEXT}}0 ,:r1j....;41 cr4 1.0j Q. 26 : 182 And weigh with the true balance. {{ARABIC TEXT}}0 mia-.) Lrliu.:44 Q. 26 : 183 Wrong not mankind in their goods, and do not evil, making mischief in the earth. {{ARABIC TEXT}}0 4.10.44 tjej"il 'tt 1,44 4,41 Q. 4 : 107 Lo ! Allah loveth not one who is treacherous and sinful. {{ARABIC TEXT}}0 LT-. Al Ulla: ,:)l' cr. 411 4")!

Q. 12 : 52 And that surely Allah guideth not the snare of the betrayers. {{ARABIC TEXT}}0 041 Usi I -If, cS.444 y 4131 .3 (Majmuul Fatawa by Ibn-e-Taimiya, Vol. 28, p. 71, 72, 75, 76). us'

121. The Prophets aid 'one who defrauds us is not from amongst {{ARABIC TEXT}}v-41; 044 c.e)

122. In sales deceit is resorted to for concealment of defects-fraudulent or otherwise-in the commodity that is when the appearance of the commodity belies its reality. Deception enters in preparation of food as bread, cookery, pulses soup etc. Or in manufacture of cloth at the stage of weaving of textiles or praparation of clothes or manufacture of other such things. It is necessary that those who produce these things may be prevented from committing fraud or breach of trust or concealment (Ibid., p. 72).

123. Imam Ibne Taimiya after relating the law against fraud and Riba proceeds to discuss price control which becomes necessary on account of the tendency to raise prices inter alia by resort to hoarding and monopoly which are condemned by the Prophet. In such contingency when the people are subjected to this tyranny by the hoarders and unscrupulous businessmen it is the duty of the person in authority to force the traders to sell at the prevailing rate (which but for the untoward increase ought to have prevailed). This action is more essential in case increase of price of articles of food which may cause suffering to the people. The jurists have ruled that if some starving person comes upon food belonging to others he can take it without his permission on payment of its prevailing value. If somebody refuses to sell except for the increased price he can be forced to sell it on that -price (prevailing) (Ibid., pp. 75, 76).

124. The question of validity of Taseer or price control (."0-.3) has already been decided by this Court in S. S. M. No, 103 of 1983). It may, however, be added that according to Imam Ibn-e-Taimiya Taseer is necessary in Shariah in many circumstances. He equates price control with wage control and justifies it on the principle that in the case of essential industries which are Farz-e-Kifaya (obligatory on the group and not the individual) it is incumbent on the Government to save the consumer, the producer as well as the worker from loss and to control wages as well as prices.

According to him it is also a right of Allah that essential articles may be sold on the prevailing customary price and this obligation extends to all who are parties to manufacture or sale. In order to understand the reasoning of the great Imam it is necessary to give a summary of his research and arguments. The principle is that no compulsion is valid in sales except for Haq (advancement of what is right). The exception thus legalises compulsion whenever necessary for Haq. For example, the sale of property of a debtor for the satisfaction of his debt and for the payment of maintenance t which he is liable is lawful. On the same principle compelling sale on prevailing price is not valid except for Haq. Thus, in many contingencies, it may be lawful. For example, a starving person can satisfy his hunger from the food belonging to another person. He is liable to pay the prevailing price. Similarly if a person irrigates another person's land and constructs over it (without permission) the owner will take possession of his land after paying him prevailing value of the improvements.

125. Similar is the case of slave owned by two person jointly. If one of them emancipates his share in him the other co-owner can only be paid the prevailing value of his share.

126. Similarly if someone has to give to another maintenance in the form of food and clothes and finds food and clothes which are appropriate according to customary prevailing value, he cannot give any other thing of lesser value unless the person entitled to the maintenance authorises him to do so.

127. For this reason the learned like, Abu Hanifa and his disciples do not consider it lawful for persons who are experts in partitioning of immovable property and work for wages that they may combine together and augment the rate of wages keeping in view (to take undue advantage of) the helplessness of the people and their dependence upon them. (They can be stopped from this).

On this principle it is legal to prevent the sellers from combining and agreeing to sell only on a price assessed or fixed by them. Likewise the purchasers can also be prevented from combining so that one of them may purchase all the property so that others may be deprived of it.

128. If a group is allowed to combine to purchase some commodity with the intention to purchase at a value lesser than the one prevailing customarily and to sell it at a value higher than the prevailing value an thus to obtain (undue) benefit of their transactions, it would be a greater tyranny than (i) receiving salable property outside (the town) and purchasing' it there from persons coming from outside the city (who are not aware of the prevailing value) or (ii) setting persons to advance loans so that the, value may increase (rtirl). This is an attempt to frustrate the intention of th consumer to purchase thing at the prevailing rate.

129. The people are in need of industry and manufactured goods, for example, cultivation of land, weaving of textile and construction of houses, because they require food for eating, clothes for wearing and houses for shelter, During the period of the Holy Prophet cloth was imported from Yemen. Syria and other places from the unbelievers and people used to wear what was woven by the unbelievers without washing it. If the imported cloth is insufficient (for their needs) people would require that it should be manufactured for them. They require food whether it is brought from outside or is grown, as it generally happens, in the country. They require houses for shelter which it is necessary to construct.

130. All the jurists from among the followers of Shafei and Ahmad-binHambal, like Abu Hamid-ul- G!Iazali, Abul Farj Binul Jauzi etc. Say that the production and manufacture of these things is Farz- e-Kifaya as the requirements (v0=1-4.) of the people are not met except by these things. It is like Jihad (holy war) which is also t-arz-e-Kifaya unless it becomes Farz-e-Ain, which it becomes when the enemy attacks the country or the Imam directs a person to participate in it.

131. ,)k); (Farz or obligation) is of two sorts Farz-e-Ain cerkri) and farz-e-kifaya (dy,Lir Li'ji). The former is that whereof the observance is obligatory on every one, and does not become less enforceable in consequence of the observance (thereof) by some, as religious beliefs and the like.

The latter is that whereof the observance is obligatory on the collective body of the Muslims, and in consequence of the observance (thereof) by some, becomes optional in respect of the rest, as warring against unbelievers and the prayer over the dead in the bier (See Arabic English Lexicon by Lane on the word Faraiz).

132. Imam Ibn-e-Taimiya proceeds to say that the acquisition of knowledge of Shariah is also a Farz-e-Kifaya unless it becomes Farz-e-Ain which it becomes, for example, when everyone knows what Allah ordered him to do or prohibited him from doing .

133. Similarly, giving bath to a dead person or giving him shroud or offering prayer on him or burying him is also Farz-e-Kifaya and so is the order commanding a person to do virtuous deeds and asking him to refrain from what is prohibited and this necessitates setting up of Ministries like War Ministry or Judiciary or Hisbah (office of Muhtasib) and such authorities (Ibid., page 81).

134. The object is that all these actions which are Farz-e-Kifaya should be performed (by those who can perform them), particularly when others may be incapable of performing them and necessarily have to depend upon them. Some people may carry on cultivation, some may manufacture textiles and some may construct buildings. All these acts are rendered obligatory on them (L....1-1.1). If they stop from pursuing these professions, the Imam (person in authority) can force them to follow them on payment of customary wages. They have no right to claim wages in excess of what is customary nor the people should pay them less than that to which they are entitled. It is analogous to a case when an army is bound for Jihad. It then becomes obligatory on those persons who can take to land to carry on cultivation. The army people are also bound not to be pitiless to the cultivator if he is obliged to cultivate for the army.

135. After considering the different views on the question of Ziraa or cultivation of land and giving his own opinion on the point of lawfulness of the conditions on which lease of land is permissible, Imam Ibn-e-Taimiya said: "the object of this is that if the person in authority compels the manufactures of things essential to the people like cultivation, manufacture of textile, and construction of houses and to fix the prevailing wages, in such circumstances it will not be open to any employer to reduce the recompense of the manufacturer. Similarly it will not be open to the manufacturer to demand in excess of what has been fixed as compensation for his work. This wage control is obligatory. Likewise if the public necessity demands the manufacture of the tools and implements of war like weapons and bridges etc. They will have to be manufactured on the prevailing value and it will not be possible for the manufacturer to claim any excess. This is known as control of labour (en...Q'D )

136. In matters or things essential for Jihad like weapons, it is necessary for the person dealing in them to sell them on the usual prevailing rate. It will not be permissible for the (seller) to stock the weapons and refuse to supply them till the enemy gets control or the value as demanded by him is paid to him. If the Imam orders people to fight it becomes a Farz-e-Ain for them as the Holy Prophet said: when you are called for Jihad J-1:3.-1 Lili) (11513 you must respond to the call (Bukhari and Muslim). In Bukhari it is also said that the Holy Prophet said that it is duty laid down on the Muslims to hcar and to obey in all matters whether difficult or easy or whether one likes them or not and whether he has other liabilities.

137. Now if one must participate in Jihad bodily and financially, how is it possible that any thing required by him for Jihad may not be available on payment of the prevailing value. Ashhab related from Imam Malik that the Inspector of Markets can impose price control on the Butchers also because such control is beneficial to the purchasers and cannot be harmful to the sellers.

138. Ibn-e-Habib laid down the procedure for fixation of prices. According to him they should be fixed in a joint meeting of the leading traders and other people so that no loss may accrue to the traders and the benefit of the consumer may be guaranteed.

139. The traders can be forced to sell their stocks and that also at the prevailing value and in case of violation of the order, can be punished.

140. The Hadith of manumission of his share in slave by a co-owner has already been reproduced.

Imam lbn-e-Taimiya draws a conclusion from it that it becomes obligatory on the other partner to liberate him after: charging the customary prevailing value of his share. It may be recalled that one version of that Hadith is that if the slave is not able to pay the value he will be allowed to earn it by working on wages.

141. The majority of the jurists including Imam Abu Hanifa and Imam Ahmad say that if a thing is shared by several persons and it is not possible to partition or distribute it among partners, it will be put to sale and the proceeds thereof shall be distributed among the share-holders even if its sale is resisted by some of them (Ibid., p. 96).

142. Imam Ibn-e-Taimiya concludes that if the law-giver (the Prophet) declared it incumbent upon the share-holders to sell on the customary price that which is joint if even one of the share-holders so desires, it will be more reasonable in the case of requirements of meals where the necessity is more acute than in the matter of liberation of a slave to procure the same (meals) on a rate fixed on the same criterion.

143. It would follow that if a person is in dire need of a house and enters another person's house it is incumbent on the owner of the house to accommodate him. Similar is the rule about clothing a person who is in acute need of clothes. This should be done without changing the price (Ibid., p.

98).

144. The object of the Hadith is that there is an obligation on the owner in particular cases to sell his property at the price assessed according to the customarily prevailing value or the price at which he himself purchased it. The assessment of price (on this formula) is not prohibited. The appraisal of price in the case of slave was for the purpose of completing his liberty. The principle is that there is right of Allah in things which are needed by the majority of the people within the limits fixed by Allah. Consequently there are more compelling reasons for assessment of customary prevalent price of such commodities which are essential for the Muslims as food, clothing and other things of public utility than in the case of one slave whose liberation is in the balance. In the case of a slave the harm may be to one particular person but in the other case the harm will be to the general public. Naturally it is a greater harm and would amount to gross injustice (Ibid., p. 100).

145. Even those who are opposed to price control only go to the extent of saying that control should not be imposed unnecessarily. It can be imposed if the rise in prices is unjust. The forced sale of essential commodity in the stock of a hoarder bears close analogy to the sale of property of debtor for payment of his debt.

164. The Holy Prophet did not approve of undue rise in prices. He directed that a person knowing the rates of prices of commodities in the city should not be an agent of a cultivator in the rural areas since there is an .Apprehension of the prices rising as a result of such agency. This is notwithstanding the lawfulness of agency (Ibid., p. 102).

147. The reasoning of Imam tbn-e-Taimiya in favour of control of price of essential goods is based on the following principles:

(1) The supply of essential industries is Farz-e-Kifaya.

(2) The supply of essential goods at reasonable prices is right of Allah.

(3) The harm to the interest of the public must be redressed by legislative process and by imposition of sanctions,

(4) The public weal cannot be allowed to be sacrificed to the interest of the few. The latter are under duty to subordinate self-interest to public interest.

(5) While imposing control the concept of justice to all should not be ignored and Zarar (harm) to all parties i. e. Producers, traders and consumers should be avoided.

(6) The State control on wages of labour is analogous to price control and is justifiable wherever necesssa ry to avoid Zarar or harm to the public.

148. There are traditions about control by rationing which justifies the Imam's inferences.

149. Muhammad-bin-Alaa, Hammad-bin-Usama, Buraida Abu Burdah relate from Abu Musa, who said that the Prophet observed that when people belonging to Ash'ar tribe are reduced to penury either on account of Jihad or scarcity of food for their children in Medina, they pool together what is with them in a piece of cloth then distribute it among themselves equally by the measure of a utensil. They are from me and I am from amongst them. (Bokhari, Kitab-ush-Shirka).

150. The approval of pooling together the food resources of a group and of their equal distribution amongst all the people belonging to the group is justification enough of the rationing systems.

Rather it is much in advance of that system. In the rationing system the resources of the scarce essential commodity are pooled by the Government by paying to the cultivator, manufacturer or owner the price thereof and the same is distributed among the members of the public on payment of fixed price which is generally subsidised by the Government. But in the Hadith referred to above there is no mention of payment of price. Some persons may have none and some may possess less. But they have to throw the entire quantity of the commodity in the common pool and the distribution is also without payment of price. The principle which emerges from this Hadith is that in time of distress or scarcity the haves are bound to contribute to the pool all that they have for equal distribution among them and the have nots. The Prophet's approval of these actions and his own identification with them (p+t-Wj t. p...j) does not leave it to the option of the haves but makes it obligatory upon them to surrender all that commodity to the pool. It follows that if they are not willing to do it they can be forced to make the contribution and all that they possess can be taken possession of by the Government.

151. This subject was also dealt with by Hafiz Ibn-e-Qayyim in Al Turuq-ul-Hukmia pages 223-239.

He also favoured the control on wages (Ibid., p. 232).

152. In Almausua-al-Fiqhia (compilation of laws) compiled by the Government of Kuwait, it is said that in some cases the wages may be controlled by the Government (See Vol. 1, page 320).

153. Mawardi was of the view the Government officials should have the power to interfere with and stop any encroachment upon the rights of labour e.. g. Payment of less wages or making them work for longer hours (Al Ahkam-ul-Sultania, Ch. 20, p. 242). The need for State inerference inheres in the Quranic scope of earning and property.

154. The Quran calls property and earning (fl.) Fazal meaning (favour) (e. g. Q. 2 : 198, 268 ; Q. 3 : 170, 179 ; Q. 4 : 37, 54 ; Q. 9 : 280 Q. 59 : 74, 100 ; Q. 18 : (e. g. Q. 11 : 75, 76) 16, 82 and 88 ; Q. 16 : 15), (Rahmah) meaning mercy or grace Q. 17 : 113)

(itizqan Hasana) meaning fair sustenance

155. But these appellations apply to what is earned or acquired in ali legal manner and what is dealt with in the manner prescribed ; since man may be tempted to acquire it by illegal means and may not spend it as ordained in which case it is called "vsuzi" (1, e. a test or temptation or even mischief) (Q. 8 ; 28 : Q. 64 : 15).

156. The prescribed manner is undoubtedly honest work and labour, which is free of any tinge of exploitation. Any apprehension of exploitation of one by the other would necessarily attract Government interference for the elimination of Fitna or mischief.

157. Economic matters have now become political questions since the promotion of prosperity of the nation is one of the aspirations of each nation. The importance of State intervention in regulating trade and industry cannot be overemphasised. Industrial expansion, increase in production, search for markets for export of the goods produced are necessary for the prosperity of a nation. They give rise to many complex questions which cannot be resolved by private planning.

State planning makes itself in the discovery of sources of raw material or the selection of site for setting up any patticular industry, in planning the production of that which is required, in capturing consumer markets. No industrialist can work in isolation when the field of economic activities is so widened and has become international.

158. Since the acceptance of responsibility for full employment the State had to assume greater interest in economic affairs than everbefore. The result is that the greater the extent of State planning, the greater is the1 intermingling of economics and politics'. Similarly the greater the intermingling of economics and polities the greater the requirement and extent of State planning.

Such planning becomes a part of Siyasat-e-Sharia in which State's intervention and for which State regulation becomes necessary.

159. If the capitalist and the industrial worker both eschew their self-interest and combine to produce as brothers in accordance with Sharia requirements there may be hardly any scope for State interference. But if the dictates of self-interest compel one to exploit the other, the resistance to exploitation by the other will certainly be a source of disharmony. The lock-outs and the strikes disrupt production and supply of goods for the consumer and on account of scarcity of commodities may result in the enhancement of prices. The worker is likely to be more hard hit.

Lockouts and strikes only add to his misery and dissatisfaction. They may create law and order situation. The modern economice is so complex that it would be unrealistic to ignore these problems. To leave the employer and employee relationship to be straightened without State intervention would directly affect the national economy. This is a case for State Regulation inter alia of this relationship.

160. As seen above from Sharia precedents this relationship even in its simplest form was regulated by the Prophet and after him by the Caliphs by preaching and acting upon the blessings of brotherhood, spending in charity by the rich, paying satisfactory wages, fixing the level of wages, restraining the employer from subjecting the worker to harder work which may affect his health because in Islam the good of the Ummah and its individual members is a political question. State regulation is now more essential in view of the added responsibility of the State towards the expansion of trade business and industry and search of avenue for employment of its people.

161. If State control is given up and the industrialist is left to his own devices to recruit labour on competitive terms and conditions of service and to hire them at will he will be in a position to restore status quo ante and dictate terms to the labour, who will be forced to accept employment to make two ends meet and earn wages even though may be below the subsistence level. This will amount to forcing them under Ikrah (compulsion) to accept the terms of employment unilaterally fixed. Can a contractual relationship created by Ikrah be treated to be valid in Sharia ?

162. On the other hand assume that all the labour in this country is united under a trade union and is in a position to dictate terms to the industrialist and refuse to work except for very high wages which may result in total disruption of industry or in production of goods at a very high and uncompetitive cost. The shoe of Ikrah is now on the other foot. In the present day economic world both these situations will be unrealistic. The loss and damage which may be caused by acting on either of the two extremes can be controlled only by State regulation of capitalist-labour relationship.

163. Imam Ibn-e-Taimiya justified State control in the second contingency and held that if industrial workers continue to refuse to work except for enhanced wages the State can intervene and force them to work for the usual customary wages . This is one instance of controlling the urge of self-interest. There is no reason why similar urge on the part of the capitalist may not be controlled. State regulation and control is thus essential in Sharia for the advancement of public weal and elimination of mischief and damage to the Ummah.

The two laws may now be considered. Industrial Relations Ordinance No, XXIII of 1969

164. The Industrial Relations Ordinance No, XXIII of 1969 amended and consolidated the law relating to the formation of trade unions, the regulation of relations between employers and work,nen and the avoidance and settlement of any differences or disputes arising between them or matters connected therewith and ancillary thereto.

165. The freedom of association is a fundamental right which is also recognized by Islam The Ordinance recognizes this right of the workers to join associations of their own choosing with the condition that he cannot be a member of more than one trade union at any time. Similarly, the employer's right to establish and join association is also recognized (section 3).

166. Section 6 deals with the requirements for application for registration while section 7 makes an elaborate provision that before a trade union is registered its constitution should provide for many a matter detailed therein. The requirements of subsection (d) is however, important since it provides that the executive of the trade union shall include not less than seventy-five per cent from amongst the workmen actually engaged or employed in the establishment or establishments or the industry from which the trade union has been formed. Thus, it allows the executive to consist of not more than twenty-five per cent. Of outsiders or persons other than workmen in the establishment, establishments or the industry from which the trade union has been formed,

167. Section 8-A provides that save with the previous permission of the Registrar, no officer of a trade union or workman shall be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the trade, union, provided that the name of the officers was communicated in writing by the union to the employer.

168. The registration of a trade union can be canceled by the Labour Court on proof of charge of contravention of any provision of the Ordinance or contravention of any of the provisions of its constitution, or incorporation in the constitution of any provision inconsistent with the Ordinance or the Rules. Similarly, election by the union as an officer of trade union of a person who is disqualified from being elected can also be visited with the punishments of cancellation or registration. Section 15 deals with the unfair labour practices on the part of the employer which include victimization of a member of the trade union. Section 16 similarly deals with unfair labour practices on the part of the workmen.

169. These two sections are reproduced below :- "15. Unfair labour practices on the part of employers.-(1) No employer or trade union of employers and a person acting on behalf of either shall-

(a) impose any condition in a contract of employment seeking to restrain the right of a person who is a party to such contract to join a trade union or continue his membership of a trade union or continue his membership of a trade union, or

(b) refuse to employ or refuse to continue to employ any person on the ground that such person is or is not, a member or officer of a trade union, or

(c) discriminate against any person in regard to any employment, promotion, condition of employment, or working condition on the ground that such person is or is not, a member or officer of a trade union, or

(d) dismiss, discharge, remove from employment (or transfer) or threaten to dismiss, discharge or remove from employment or to transfer a workman or injure or threaten to injure him in respect of his employment by reason that the workman - (0 is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union, or

(ii) participates in the promotion, formation or activities of a trade union.

(e) induces any person to refrain from becoming, or to cease to be a member or a trade union, by conferring or offering to confer any advantage on, of by procuring or offering to procure any advantage for such person or any other person.

(f ) compels or attempts to compel any officer of the collective bargaining agent to arrive at a settlement by using intimidation, coercion, pressure, threat, confinement to a place, physical injury, disconnection of water, power and telephone facilities and such other methods.

(g) interfere with or in any way influence the balloting provided for in section 22 or

(k) recruit any new workman during the period of a notice of strike under section 28 or during the currency of a strike which is not illegal except where the Conciliator, has been satisfied that complete cessation of work is likely to cause serious damage to the machinery or installation, permitted temporary employment of a limited number of workmen in the section where the damage is likely to occur ;

(1) close down the whole of the establishment in contravention of Standing Order 11-A of the West Pakistan Industrial and Commercial Employtnent (Standing Orders) Ordinance, 1968 (West Pakistan Ordinance No, VI of 1968). Or

(ii) commence, continue, instigate or incite others to take part in, or expend or supply money or otherwise act in furtherance or support of, an illegal lock out.

(2) Nothing in subsection (1) shall be deemed to preclude an employer from requiring that a person upon his appointment or promotion to managerial position shall cease to be, and shall be disqualified from being a member or officer of a trade union of workmen."

16. Unfair labour practices on the part of workmen -

(1) No workman or other person or trade union of workmen shall -

(a) persuade a workman to join or refrain from joining a trade union during working hours , or

(b) intimidate any person to become, or refrain from becoming, or to continue to be or to cease to be a member or officer of a trade union, or

(c) induce any person to refrain from becoming, or cease to be a member or officer of a trade union by intimidating or conferring or offering to confer any advantage on or by procuring or offering to procure any advantage for such person or any other person, or

(d) compel or attempt to compel the employer to accept any demand by using intimidation, coercion, pressure, threat, confinement to, or ouster from a place, dispossession, assault, physical injury, disconnection of telephone. Water or power facilities or such other methods.

(e) commence, continue, instigate or incite others to take part in or expend or supply money or otherwise act in furtherance of support of an illegal strike or a go-slow. Explanation : -In this clause, go-slow means an organized, deliberate deliberate and purposeful slowing down of normal output or the deterioration of the normal quality of work by a body of workmen acting in a conceited manner, but does not include the lowing down of normal output or the deterioration of the normal quality, or work which is due to mechanical defect, break-down of machinery, failure or defect in power supply or in the supply of normal materials and spare parts of machinery.

(2) It shall be an unfair labour practice for a trade union to interfere with a ballot held under section 22 by the exercise of undue influence, intimidiation. Impersonation or bribery through its executive or through any person acting on its behalf."

170. Section 18 provides for immunity from civil suit or other legal proceeding against any registered trade union or collective bargaining agent or its officer in respect of matters connected with the performance of their duties.

171. More than the trade unions can constitute themselves into a federation (section 20).

172. Section 22 provides for appointment or election of a Collective Bargaining Agent. Where, there is only one registered trade union of not less than one-third of the total number of workmen employed in such establishment or group of establishments, it may be certified by the Registrar to be the collective bargaining agent for such establishment or group. However, where there are more registered trade union than one the Registrar shall, upon a secret ballot determine as to which of the said unions shall be the collective bargaining agent in relations to such establishments or group.

173. The collective bargaining agent in relation to an establishment or group of establishments shall be entitled to-

(a) Undertake collective bargaining with the employer or employers on matters connected with employment, non-employment, the terms of employment or the conditions of work ; other than matters which relate to the enforcement of any right guaranteed or secured to it or any workman by or under any law, other than this Ordinance, or any award or settlement ;

(b) represent all or any of any of the workmen in any proceedings

(c) give notice of, and declare. a strike in accordance with the provisions of this Ordinance ; and

(d) nominate representative of workmen on the Board of Trustees of any welfare institutions or Provident Funds. And of the Workers' Participation Fund established under the Companies Profits (Workers' Participation) Act, 1968 (XII of 1968).

174. Section 23 provides for appointment or election of shop stewards in the shop section or department of any establishment having 50 or more workmen. Shop stewards act as a link between the workers and the employers and assist in the improvement of arrangements for the physical working conditions and production work. They can be appointed by the collective bargaining agent or if there is no agent be elected by secret ballot.

' In order to associate the workers in the Management of the factory employing fifty or more persons provision is made that there shall be elected or nominated from among the workmen in the factory workers' representatives to the extent of fifty per cent, to participate in the Management of the factory. These representatives shall participate in all the meetings of the Management Committee relating to the Management of the factory except commercial and financial transactions, and the Management is bound not to take decision in the following matters without the advice in writing of these representatives:-

(i) framing of service rules and policy about promotion and discipline of workers ;

(ii) changing physical working conditions in the factory;

(iii) in service training of workers;

(iv) recreation and welfare of workers ;

(v) regulation of daily working hours and breaks ; (v1) preparation of leave schedule ; and

(vii) matters relating to the order and conduct of workers within the factory.

176. Similarly there are provisions for setting up in companies owning or Managing factories, each of which employs fifty persons or more, a joint Management board in which the workers participation shall be to the extent of thir. y per cent to look after ;

(a) improvement in production, productivity and efficiency

(b) fixation of job and piece-rates ;

(c) planned regrouping or transfer of the worker;

(d) laying down the principles of remuneration and introduction of new remuneration methods ; and

(e) provision of minimum facilities for such of the workers employed through contractors as are nor covered by the laws relating to welfare of workers.

177. Section 24 provides for setting up of a Work Council consisting of Workers' and Employers' representation in establishments having fifty or more employees.

(a) to promote settlement of differences through bilateral negotiations ;

(b) to promote security of employment for the workmen and conditions of safety, health and job satisfaction in their work ;

(c) to encourage vocational training within the establishment ;

(d) to take measures for facilitating good and harmonious working conditions in the establishment, to provide educational facilities for children of workmen in secretarial and accounting procedures and to promote their absorption in these departments of the establishment ; and

(e) to discuss any other matter of mutual interest with a view to promoting better labour Management relations.

178. Section 25-A deals with the redress of individual grievances. Such grievances shall be brought to the notice of the employer in writing, either directly or through shop stewards or collective bargaining agent, who must decide it and communicate his decision within the time fixed by the section. In case the worker is disatisfied with the decision or employer fails to communicate the decision, the matter may be taken to the Labour Court which can decide the dispute on merits.

179. Section 26 provides for negotiation between the employer or the collective bargaining agent fur settlement of industrial dispute which has arisen or is likely to arise. This can be done by bilateral negotiations. But if the settlement is not reached or the bilateral negotiations fail, the employer and the collective bargaining agent may, within seven days thereof serve to the other party to the dispute a notice of lock-out or strike, as the case may be, in accordance with the provisions of the Ordinance. A copy of the notice shall be delivered to the conciliator who shall proceed to conciliate in the dispute, and to the Labour Court (section 29).

180. Section 30 deals with the procedure of the conciliator. In case of failure of conciliation, the conciliator shall try to persuade the parties- to. Refer the dispute to arbitrator, whose decision shall be final and its award shall be valid for a period not exceeding two years or as fixed by the arbitrator (section 31). However, if no settlement is arrived at during the course of conciliation proceedings and the parties do not agree to arbitration the workmen may go on strike or the employer may declare a lock-out on the expiry of the period of the notice or upon declaration of the conciliator about failure of conciliation proceedings.

181. A strike or lock-out may be challenged before the Labour Court. If the strike or lock-out lasts for more than thirty days the competent Government may also prohibit it. The matter in that case shall be referred either to the Labour Court or to a commission known as the National Industrial Relations Commission constituted under section 22-A and the Court or Commission may give award, which shall be binding on the parties (section 32). The competent Govern neat may also prohibit strike or lock-out at any time before its commencement in respect of any of the public service or an industrial dispute of national importance.

182. The Ordinance provides for the setting up of Labour Courts for adjudicating and determining an industrial dispute enquiring and adjudicating any matter relating to the implementation or violation of settlement, trying offences under the Ordinance and exercising and performing such other power and functions as may be conferred upon or assigned to it by or under the Ordinance. It also provides for setting up of Labour Appellate Tribunal.

183. Section 38-A authorises the Federal Government whenever considered necessary to constitute wage commission for fixing rates of wages and determination of all the terms and conditions of service in respect of the workers of the Bank or such other workers as the Federal Government may, by notification in the official gazette, specify. While fixing the wages and determining other terms and conditions, the wage commission may take into consideration the costs of living, the prevalent rates of wages of comparable employments, the circumstances relating to the industry in different region of the country or any other circumstances which may seem relevant to the wage commission. Its decision is an award and becomes binding.

184. Section 45 authorises the Labour Court or Labour Appellate Tribunal to prohibit continuance of strike or lock-out where it has already commented.

185. Section 16 deals with illegal strikes or lock-out. There are other miscellaneous provision and penalties as well as sanction for contravention of the provisions of the Ordinance.

The West Pakistan Industrial and Commercial Employees (Standing Orders) Ordinance, 1968

1. The West Pakistan Industrial and Commercial Employees (Standing Orders) Ordinance. 1968 lays down certain terms and conditions of service including leave group insurance scheme, compulsory group insurance, payment .Of bonus, termination of employment, procedure for retrench vent, re-employment of retrenched workers, punishments of workers, and their eviction from residential accommodation etc. It also deals with the right of the employer in the circumstances specified in the Standing Order No, II about stoppage of work and as provided in Standing Order No, I I-A for closure of the establishment.

2. As seen above, all these provisions are in the interest of the workmen and also take into account and provide for resolution of any difficulty accruing to the employer. The attempt is to provide incentive to the workers for showing more efficiency and producing to the maximum. This goal is sought to be achieved by providing for their participation in the management, security of tenure, bar against the removal or dismissal, except for cause, periodical raising of their wages in view inter alia of the increase in the cost of living which on account of inflation is a permanent international feature these days. For this purpose it allows the workers to co-operate and combine in trade unions and also to appoint their bargaining agents for the settlement of their disputes with the employers. The detailed procedure for settlement of disputes through conciliation, arbitration, Labour Courts and in some cases through the National Industrial Relations Commission is.

Provided. These authorities have the power _a adjudication of disputes by proceeding judicially: The object of the laws is that all disputes should be amicably settled and decided and the industry and production should not suffer since the reduction in production not only affects the consumers or any industry but the nation as a whole. There can be no objection to such type of provision in Sharia since the object of the law is to promote amity and good-will between the workers and the employers and to eliminate the mischief which may be caused by mutual recurring disputes.

3. One point, however, requires consideration and that is about the lock-out and the strike. It has been noticed that according to the opinion of the Muslim jurists if the workers producing essential commodities combine in order to raise wages, they may be forced to work on the prevailing customary wages. This opinion proves that there can be no objection against combination, trade unionism or co-operation. The objection can be raised only when the mischief is likely to be caused by the strike or intention not to work till unreasonably high wages claimed by the workers are paid.

It would follow that if the refusal to work or slowing down is with the object of obtaining just wages, it cannot be interfered with and the employers may be forced to give the worker his due. Even otherwise Islam instils in the members of the Umrnah the sense of co-operative dealing. The formation of trade union cannot be objectionable nor can objection be taken to the appointment of bargaining agent for so long as the interest of the community does not suffer from it. The refusal to work which is now known as 'strike' is also unobjectionable for the above reason.

4. It has already been stated that there is a possibility of 'Ikrah' or compulsion in the contract between employer and the employee if the employee takes undue advantage of the unwholesome competition between candidates for employment. This may result in the reduction of the wages even to a degree below subsistence level. This is taking undue advantage of the needs of the candidates for employment. If workers can be forced to work on prevailing customary wages, the employer can also be compelled not to take undue benefit of abject poverty of the unemployed and thus to deny to them the prevailing customary wages. In this view of the matter the provision about co-operation of the workers' formation of trade unions and creation of labour leadership which will not allow imposition of 'Ikrah' are very salutary and advance the collection good of the people. The right of lock-out and strike are steps in aid of settling industrial disputes. Effort should be made firstly for elimination of disputes and secondly for their adjudication in a manner that the possibility of these extreme steps by the employer and the employee is eliminated.

5. For this purpose the law provides for conciliation, arbitration and ultimately the intervention of the National Industrial Relations Commission or the Labour Courts. In some cases wage commission is also appointed for fixation of wages. The law is, therefore, valid in all respects and there is nothing in it which may be said to be repugnant to the Shariah. It advances the purpose of industrialization in the country.

' Before parting with this case, however, we would like to observe that we may take note of some realities of the industrial relations. It is said that while in the past the employer's behaviour was intolerable, the tables are now turned and the employee's behaviour towards the employer is most humiliating. The workers do not work to the extent they are required to do. They thus take undue advantage of the power granted to them by these laws, which was granted only to keep a balance between them and their employer. It is said that the outside leadership is also to blame and. More often than not its activities are meant to justify their leadership rather than help in the smooth working of the establishment or factory. It is for the Government now to consider and find out solution for these practical problems. They should frame and implement schemes to educate the workers and employers to develop the Islamic relationship of Muwaknat, or brotherhood between them, to respect and honour the dignity of one another and to refrain from humiliating each other.

The process of accountability of employer and the employee both must be speeded up and whoever is found at fault, should be punished. All attempts by either party at intimidating or influencing labour Courts and other organizations should be frustrated by timely action. Illegal lock-out and strikes may be visited with more serious punishments including the imposition of collective fines on the workers and severe fines on the employer. The possibility of eliminating outside leadership or at least reducing it further may also be considered. Such leadership may have more potential for advancing its self-interest rather than advance the interest of the workers.

6. The will of workers has been given by the various labour laws full opportunity of expression. The appointment of bargaining agents, shop stewards, works councils and- the arrangement for participation of the workers in the managements of the factory guarantee the protection of their rights. Various incentives have been provided. If despite these measures their outturn in the country is deficient and miserable, the object of these laws might be frustrated. There is no reason that the Pakistan worker who is said to be extremely efficient wean working in foreign countries should be amiss in performing his duty as efficiently for the development of his homeland. The Government should organize a systematic plan of preaching and inculcating in them the Islamic values referred to above.

7. These labour laws are justified in Shariah. M. B. A.