Right of Legal Heirs to Compound Murder In Case Of Death Sentence as Taazir

RIGHT OF LEGAL HEIRS TO COMPOUND MURDER RIGHT OF LEGAL HEIRS TO COMPOUND MURDER IN CASE OF DEATH SENTENCE AS TAAZIR By Dr. M. Aslam Khaki, Advocate Supreme Court and Jurisconsult Federal Shariat Court of Pakistan Before we dilate upon the debate whether the concession of compounding is available in case of death sentence in murder as Ta'azir, the term Qaisas & Ta'azir should be understood in its Islamic perspective. MEANING OF QISAS: The synonym of Qisas is 'Qawad' which means Retribution i.e. 'Killing for the Killing and injury for the injury'. TA'AZIR The dictionary meaning of Ta'azir is to check or reprimand. As a term of Shariah, Ta'azir means the punishment for the offence or crime in which there is no Hadd, Qisas or expiation So according to the scope of Ta'azir by its definition, Ta'azir will be applicable only to the crimes or offences in which Shariah has not prescribed any punishment or expiation. In section 302(b), P.P.C. the punishment of death for murder cannot be named and treated Ta'azir as not only the crime of Qisas is specified in such offence but also the punishment of death is prescribed. Hence the application of the term Ta'azir with its consequences as in section 302(b) are void ab initio. The death penalty in section 302(b), P.P.C. is in fact a Qisas for all the applications and purposes. It is also noteworthy that Ta'azir may be awarded in a case where the heirs of the deceased have pardoned the murderer but the murderer has committed brutely in murdering has terrorized the public or has committed any other crime with the murder like rape, dacoity etc. It is to be seriously noticed that the term 'Qisas' does not mean the absolute punishment by the State rather is the 'right' of wali to either retaliate or enter into sulh or grant Afw. So in both cases of death penalties as provided in sections 302(a) and 302(b), P.P.C. the focal point is not the punishment or the proof of the offence but is the right of the legal heirs of the victim. The role of State in such matters is to facilitate the execution of the punishment at the demand of the legal heirs. For the purpose of sections 307, 310, P.P.C. the Qisas is not a word to be taken in limited meaning rather its scope extends to all types of remedies available to the heirs of the deceased, it does not exclude which is not excluded by its definition. So in the definition of Qisas 'killing for killing' includes killing in its absolute and unfettered form, whether it is by way of Qisas or is by way of Ta'azir and whether the murder is proved as in section 302(a) or as in 302(b), P.P.C. It is also settled notion of Islamic as well as of English jurisprudence, that in phrases, the technicalities of the word are not considered, it is the purpose which is of prime consideration. The consideration will be given to the meanings and not to the words and structures of the law/hukm. In Shah Hussain v. State PLD 2009 page 479) while discussing the period spent in jail before the conviction is to be treated as punishment for the purpose of its deduction under section 382-B, Cr.P.C,. the full bench of this honourable court has held the view that meaning or selection of the word may not be the consideration rather it is the consequences which determine or underline the meaning of the word. It explodes the notion that such period can be ignored because it is not spent in jail by way of 'punishment'. Not to treat that period as punishment, will be a play on the meaning of the word 'punishment'. Whether the detention in jail was punitive or non-punitive the consequence, as regards the person detained was the same, namely, deprivation, of liberty and that is certainly punishment. On this analogy, it can be viewed that in case of murder by whatever standard of proof there are proved, it is the right of heirs of victim to demand for retaliations or to forgive. Differentiating rather discriming by the word Qisas and Ta'azir is a play with the right of heirs of the victim. THE CONDITIONS FOR ENFORCEMENT OF QISAS: The Muslim jurists in the light of Quran, Sunnah and logic have detailed out the conditions for the enforcement of Qisas, so when all these conditions are met Qisas is the definite resultant right of the victim or his legal heirs as the case may be. These are: (a) As far the Murderer, he must be (i) Sane (ii) Adult (iii) Non-coercion (iv) direct attack (b) As far the nature of murder, it must be (i) Intentional (ii) Directly and not instrumental (c) As far the deceased, he must be (i) Equivalent (takafoo) between murderer and the deceased. (ii) Innocent It is notice worthy that there is no condition for the constitution of Qisas that the murder should be proved by two male, adult Muslim witnesses etc. so when all the above stated conditions are fulfilled, the definite result is the Qisas giving right to the heirs of the deceased for retaliation or for compounding. QURAN In case of murder, the right or authority vests with wali of the victim and not with the government. Quran Says: Translation: Do not kill any person the life of whom is sanctified by Allah, except for a just reason. And whoever is killed unjustly, We have invested his heir with authority (of equal retaliation), but he must not cross the limit in the matter of killing. Surely, he will be helped. (17/33). The verse while conferring the authority to revenge or forgive does not make it conditional to its proof by Confession or by two witnesses as required by section 302(a), P.P.C. Translation: "O you who believe, Qisas has been prescribed for you in the case of murdered people: The freeman (will be killed) for the freeman, the slave for the slave, and the female for the female. However, if one is forgiven by his brother, the recourse (of the latter) is to pursue the former (for blood money) with fairness, and the obligation (of the former) is to pay (it) to the latter in a nice way. That is a relief from your Lord, and a mercy. So, whoever transgresses after all that will have a painful punishment." So abolition of right of heirs of the deceased to forgive or accept blood money by labeling it as Ta'azir' is blocking the way of relaxation from Lord and depriving the victim's heir from blood money and the offender from Rahmat/blessing of Allah. The verses of Quran about the murder are also general and no classification or differentiation has been made between murder liable to Qisas or liable to Ta'azir. Translation: We prescribed for them therein: A life for a life, an eye for an eye, a nose for a nose, an ear for an ear and a tooth for a tooth; and for wounds, an equal retaliation. Then, if one forgives it, that will be expiation for him. Those who do not judge according to what Allah has sent down, they are the unjust. It is pertinent to note that right granted to man by Allah cannot be taken away by the government in any case. The govt. is the enforcing agency of the rights of its citizens and not usurper of their rights and that too when it is against Islamic law and Shariah. It is well settled Principle:-- Translation: "The authority of the government over its public is subject to the welfare (of the public)" Placing the murder under section 302(b), P.P.C. as Ta'azir in which the legal heirs have no right to forgive or take blood money is violative of injunctions of the Quran, Sunnah and also is the infringement of the rights of the citizens. It is pertinent to note that Allah ordains for the Justice as well as for Ihsan or Compassion. Allah Says: Translation: Allah enjoins to do justice and to adopt Ihsan and to give relatives (their due rights), and forbids shameful acts, evil deeds and oppressive attitude. He exhorts you, so that you may be mindful. (16/90). Section 302(b), P.P.C. deprives the legal heirs to obey the divine order of Ihsan (Surrendering his right for Compassion). SUNNAH (I) It is reported from Abu Hurairah that the Prophet (P.B.U.H.) Said: "If a person is murdered, the legal heirs of the victim have two options, either get Diyat or demand for retaliation." (Bokhari, Muslim, Abu Daud, Tirmizi and Nissai) The renowned Egyptian Scholar, Wahbatul Zuhaila further elaborates the point as follows:-- In the murder, there is one of the two options: Qisas or Diyat and the Wali of the victim will opt for one of the two:-- (Al-zuhaili, al-Fiqhul Islamic Vol. 6, page 227) Translation: "And whosoever Kills the innocent person intentionally, he will be handed over to the heirs of the victim if they opt to kill him can kill him or they can take Diyat and if they compound on some property, that is for them: Translation: "And whosoever is murdered, or is injured his wali has three options either take Qisas, or forgive or if he wants to take Diyat and if he resorts to fourth option, stop his hands .." A famous Muslim jurist Al-Fazeelat elaborates it further by saying "It has been held that in all the crimes that involve the rights of a man, they transfer to his legal heirs after his death, it is upto the legal heirs to demand retaliation of their propositus except when the deceased propositus had forgiven before his death." (Al Fazeelat, Saqootul Uqubat. (Arabic) Amman, 1987, Vol. 1 page 44). Quran and Sunnah suggest the legal heirs for forgiveness as it will be rewarded in the hereafter. The literal, technical and static interpretation of section 302(b), P.P.C. creates a serious hurdle to obey the command of Allah and His Prophet and resultantly deprives them from their reward in the hereafter besides their reward of blood money in this world and of forgiveness which promotes peace by ending enmity between the families of victim and offender. The Prophet said"- (i) "It is reported by Ibne-Masood, he said that the Holy Prophet (P.B.U.H.) said Forgive the people Muslim who committed murder." (ii) It is reported by Aeysha ((R.T.A.) that the Prophet (P.B.U.H.) said if one of the legal heirs forgive, the others should not take revenge even if it has been forgiven by a women heir---(Abu Daud, Al-Nissai). (iii) It is reported by Ibne-Abbas he said "There was law of Qisas (retaliation) for Bani Israel but no provision of Diyat, Allah told this Muslim Ummah that retaliation is provided for you in the matter of murder, free for the free (Quran), and whosoever is forgiven by his brother Ibne-Abbas says that the forgiveness is that he should accept Diyat in murder This is relaxation from your Lord and blessing." (AL-Bokhari, Al-Nissai, Al-Dar Qutni) TA'AZIR HAS TWO APPLICATIONS: (i) Firstly, as the power of the government to award (Ta-azir) as alternate punishment in case Qisas is dropped or is non-enforceable. There is difference of opinion on this issue. (a) Hanafi and Maliki jurists hold that the Government is bound to award punishment as Ta'azir in case the Qisas is dropped or forgiven by the legal heirs. Such Ta'azir may be 100 stripes and one year imprisonment. (Bidayat ul Almujtahid 2/396, Al-Talweeh-o-Waltaudih, 2/155). (b) The majority jurists hold that Ta'azir is not an obligation, it is the option with the ruler to do it in public interest if he feels so. (Al-Talveeh Wal-Tauzeeh, 2/155, and others C/O Zuhail 313/6). (ii) Secondly, Ta'azir as awarded in cases other than Qisas and Hudood. These may be in case of offences against the right of the person or against the State. There is no evidence from Quran, Sunnah or Fiqh which provides for death punishment to be awarded as right of Government for the simple murder in which only the right of particular person is involved. So if death penalty arises out of the murder of a person, the right of retaliation or forgiving absolutely and solely and vests with the legal heirs of the victim and not with any other body. Even otherwise, if Ta'azir is the punishment for the offences involving violation of the right of a person exclusively, it is the victim person or his legal heirs who have the right of Afw or of retaliation. So a victim or his legal heirs as the case may be have the right to forgive such Ta'azir whether it be the death punishment, or imprisonments etc. because the reason/ground for the Ta'azir Punishment like Qisas solely and wholly arises out of the violation of right of the victim. However, if the offence of the offender involves any other offence in addition to the simple murder, the offender may be punished for the said additional offence for violation of the right of the public. It is well-settled maxim of Islamic law that Islamic Ahkam are based upon some reasons or Illah and revolve around such reason. If the reason is found, the ruling of Hukm will be in action and if such reason or 'Illah' is missing or is taken away, its Hukm will not be applicable. "Hukm or law of Shariah revolves around its reason/Illah in its application and in its non-application. When reason is there hukm will be applicable and when its reason is absent, hukm will be inapplicable." The simple and famous example in this regard is the cause for the prohibition of wine in Shariah. The reason/Illah behind the prohibition is the intoxication in the wine, when is in the wine, wine will be prohibited or haram and when by adding any chemical to it, the intoxication is taken away and it is converted to vinegar, it becomes permitted or halal. Now we examine the evidence from Quran and Sunnah if the murder by whatever name and style labelled, it is the exclusive right of the victim or his legal heirs of retaliation or of forgiveness. It must be noted that Islamic law does not recognize the classification of murder as liable to Qisas or liable to Ta'azir on the basis of different standards of evidence or mode of Proof. Murder is either proved or is not proved. It is proved either by confession of the offence or by two witnesses. (Nail-ul-Autar by Alama Shookani, Vol. 7, pages 22 and 35) At the cost of repetition, it is once again retrieved that whatever is the mode of evidence, it is the exclusive right of the victim or his legal heirs as the case may be to demand for Qisas or forgive. The supportive evidence to the said proposition is derived from Quran and Sunnah as discussed above. ANALOGY/LOGIC The distinction between the death penalty under section 302(a) and section 302(b), P.P.C. on the basis of standard evidence is not only UnIslamic but also illogical and funny. Suppose a person has stolen my car you say: (a) "If the car is proved to be stolen and recovered through the evidence of two adult Muslim witnesses coming up to the standard of Tazkiatul Shahood, it will be returned to you/owner of the car but, (b) If the theft is proved by lower standard of proof i.e. by one witness and circumstantial evidence, then it will not be handed over to you rather will be confiscated by the Government. The moot issue in punishment for murder is not the standard of evidence by which the offence is proved but the cause of the punishment i.e. Whose right has been infringed? If the right of victim person has been infringed, then it is the exclusive right of victim either to forgive the offender or take revenge by whatever style it is called, Qisas or Ta'azir, Section 302(b).--Punishment of death by Ta'azir by itself does not take away the right of the victim to forgive, it only provides for death punishment as Ta'azir. Similarly section 302(a), P.P.C. punishment of death as Qisas by itself does not provide for compounding. The compounding is provided by an independent provision of law i.e. sections 306, 307 of P.P.C. However there is absence of clear provision of law for compounding in Ta'azir in our law books and not in Islamic law. The matter is ancillary or akin to the law/provisions of the chapter. Section 338-F of P.P.C. is the anomaly removing provision of law and it reads as under. Section 338-F.--"In the interpretation and application of the provisions of this chapter, and in respect of matters ancillary or akin thereto, the court shall be guided by the injunctions of Islam as laid down in the Holy Quran and Sunnah." It is interesting to note that the definition of Ta'azir in section 299(l), P.P.C. does not include death punishment. So there is conflict between section 299 and the section 302(a) and (b), P.P.C. In case of murder, the right of the victim to take revenge or to compound is provided by text of Quran and Sunnah which is conclusive evidence while elimination of this right by simply naming it as Ta'azir is self-conflicting and against Islam, Hence is doubtful. There is Islamic legal Maxim ( ) 'Certitude cannot be replaced by doubtful' (AL-Majellah :4) TAAZIR IS OF TWO TYPES (a) Ta'azir in the offences infringing right of Allah and (b) Ta'azir, in the offences infringing the right of individual. If Ta'azir involves the right of Allah, the ruler can forgive the offender in the public interest and if Ta'azir involves the right of individuals, then only the holder of the right can forgive his right. The said proposition is based upon the narration from the Holy Prophet. "Suggest forgiveness and get rewarded and Allah ordains through Prophet words as he likes" (Agreed by all except Ibn-e-Majah ) The jurists have classified the crimes into various forms and have identified the murder as in class of crimes which infringe the right of individual. Such rights are transferred by way of inheritance to the legal heirs of the victim after his death. The legal heirs have the right to demand Qisas retribution or forgive the offender. The reference to one tradition of the Holy Prophet (P.B.U.H). The Prophet said. (Abu Daud No.4491, Al-Darmi, 188:2) (i) Ta'azir can be forgiven or waived. Without prejudice to the proposition that in case of a murder by whatever mode or standard of evidence it is proved and by whatever style, Qisas or Ta'azir it is named, the Ta'azir can be waived, compounded or forgiven. "In Taazir, forgiving, compounding and acquittal is permitted." (Allama Kasani Badai-ul-Sanace Volv. 7, P.183, Urdu Lahore) (ii) In the case of murder the role of court is to identify the offender and prove the allegation against him and not to punish or forgive, it is the right of the legal heir. Translation: "Thus, when it is proved before the court that the offender is adult, sane and was not under coercion and it is proved before it that the victim was innocent and in equivalence (Kafaat), here the case takes another shape and that is that the jurisdiction or authority of judge/court comes to end, and comes the role and jurisdiction of the Wali of the victim who are entitled for Qisas. So the matter will be presented before them and they opt between Qisas, Afw or compounding. (Al.Fazeelat, Saqotul Qoobat, Amman 1987 P.77) THE OPINION OF AUDAH MISCONCEIVED The Egyptian scholar of Fiqh, Adbul Qadir has discussed Ta'azir as alternate or substitute to Qisas in case:-- (a) Where Qasis is not enforceable or (b) There is natural death of the offender and in that case he refers, the opinion of Imam Malik that the punishment of Ta'azir may be one year imprisonment and hundred stripes, but other jurists hold that after the dropping (Saqoot) of Qisas, Ta'azir is the right of Allah i.e., right of the Public or Society and that is for reprimand of the murderer when he is a known culprit and Qisas is dropped due to forgiveness of wali and only then Imam may award light punishment as he deems proper and the three Muslim jurists do not suggest any fixed punishment for the murderer after the drop of Qisas or forgiveness to him but there is nothing which forbids for the Ta'azir punishment to the extent which the legislators think appropriate and a restraint for others. After dilating upon the situation in which the Qisas is dropped by forgiveness or otherwise or when there some people have collusion or assist in the murder, Ta'azir may be imposed. Dr.Audah makes a wide statement and that too without evidence from Quran and Sunnah that Taazir punishment may extend to penalty of death or for life imprisonment. He Says: "There is nothing in Shariah which in case of Qatl bars the punishment as death or life imprisonment as Ta'azir. (Audah, Abdul Qadir, Al-Tashvee-ul-Jinai, Vol. 2, P.183-184, darul Kitab Al Arabi, Beirut). Even otherwise situation in which Ta'azir has been suggested is clearly in case of Saqoot-e-Qasis and not sabot-e-Qisas Even otherwise, he does not negate the right of heirs of victim to forgive or compound, he only focuses the quantum of punishment in Ta'azir. The situation contemplated in difference between section 302(a) death punishment as Qisas and section 302(b) death punishment as Ta'azir is on the basis of Evidence or mode of Proof and not an alternate or substitute of the Qisas. CONCLUSION: (i) In both cases whether the murder is punishable under section 302(a) as Qisas or under section 302(b), P.P.C. as Ta'azir, the substantive offence (murder of the victim) is the infringement of the right of victim individual. So it is the exclusive right of the wali of the victim either to demand Qisas or forgive or take blood money.. (ii) By the application of provision of section 302(b), P.P.C., the widow and orphans of victim are deprived of their right of 'Afw' as well as of compensation or Badl-i-Sulh which may be the only source of their livelihood or maintenance .It is also ousts the scope of compounding for future peaceful living between the parties. (iii) The distinction is illogical. The offender of murder with high standard of Proof/certitude [as in section 302(a)] enjoys the concession of Afw or Sulh while the offener of murder with much lower standard of Proof (doubtful guilt) does not enjoy such concession. (iv) The distinction as provided in section 302(a) and section 302(b), P.P.C. is not provided in Islamic law rather is strange to it. The Sunnah or even the jurists have not made such distinction. The Sunnah shows that whenever murder was proved, the offender was put at the mercy of the wali of the victim. Even the definition of 'qisas' in Islamic law as well as in section 299(k) does not make such distinction of as 'Qisas' or as 'Ta'azir'. (v) The term `Qisas' may be read and understood as inclusive of Ta'azir for the purposes of sections 306, 307, 309 and 310 when it is the result of the murder of a victim and only the right of the individuals is involved. (vi) The misuse or malstructuring of a term by a clerk or draft man of Ministry of Law cannot take away the substantive right of the victim citizen of Pakistan which is clearly proved by Islam as well as by law, morality and logic and by Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. (vii) In the interpretation of the application of the provisions of the chapter, the court shall be guided by the injunction of Islam. (section 338-F, P.P.C.). (viii) Confining 'Qisas' to section 302(a) will not only adversely affect application of section 307(b) but also the application of section 307(b) & (c) and provisions of section 306(a), (b) & (c) which application makes the law illogical. (ix) It is well-settled law that Ta'azir cannot reach the Hadd punishment. So in the same offence Ta'azir punishment cannot be awarded as death.. (Kasani Volume 7 page 182) (x) If the Supreme Court has the Constitutional right to strike down the Provisions of law which are against Islamic injunctions as well as violative of fundamental rights, then why it cannot strike down the interpretation of a law which suggests the violation of Islam and the Constitution and adopt the interpretation which is in line with the Islamic principles as well as of the Constitution. (xi) To the jurists, if Ta'azir punishment is the result or punishment for the violation of the right of a person, then it has the legal effects of Afw or Sullh by that person like any other cases of rights of people as opposite to Hudood offences and the consequential effects will flow in Ta'azir like that in Qisas. (Kasani, Bada ul Sana 'I - Vol.7 page 183 Urdu) (xii) Section 310 makes a space for compounding as it refers to Qatl-i-Amd only. (xiii) The victim can also suggest other lesser punishment in lieu of qisas and can also forgive any type of punishment awarded against the murder simple for whether it is death imprisonment or whipping etc. because in murder the right infringed is that of victim and of non-else. (xiv) It is to be noted that classification and differentiation of Crimes into Hadd or Ta'azir or Qisas or Ta'azir is based upon the nature of crimes committed and not on the basis of mode of Proof. This type of classification whether in Hudood laws of Pakistan is totally alien and strange to Quran, Sunnah and Fiqh. In Islam, a crime is either proved by the required standard of Proof or is disproved if the required standard is not available creating a presumptive nexus of Quantum of punishment proportionate with standard of proof is neither acceptable nor digestible by Islamic law. However if the offender has committed some other crime with the said offence, he can be punished for it under Ta'azir. Every offence has its independent pedestal of evidence and proof. (xv) It is pertinent to note that if the punishment of death as Ta'azir under section 302(b) P.P.C. is not accepted as right of the victim, then it not only excludes the benefits of compounding or forgiveness by the victim but also the benefits of non-enforcement of such death penalty under Ta'azir mentioned under section 307(a) and (C) of P.P.C. which are otherwise generously available under Islamic law as provided by texts of Quran and Sunnah. Similarly such destruction would be a discrimination and would adversely affect the right of heirs of the victim to receive Diyat or Badl-i-Sulh or even to forgive to end the enmity and in better interest of peaceful society and in compliance of Allah's command. ANNEX: "A" RELEVANT PROVISIONS IN P.P.C. (Definition of Qisas section 299 (k) Qisas' means punishment by causing similar hurt at same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-e-amd and in exercise of the right of the victim or a wali. Section 302. Punishment of Qat-e-Amd.--Whoever commits qatl-e-amd, subject to the provisions of this Chapter be-- Section 302(a) Punished with death as qisas; Section 302(b) punished with death or imprisonment for life as Ta'azir having regard to the facts and circumstances, of the case, if the proof in either of the forms specified in section 304 is not available; or. Section. 306: Qatl-e-Amd not liable to Qisas; (a) When an offender is a minor or insane. (b) When an offender causes death of his child or grandchild. (c) When any wali of the victim is a direct descendant, howlowsoever, of the offender. Section 307. Cases in which qisas for Qatl-i-amd shall not be enforced. (a) When the offender dies before the enforcement of qisas. (b) When any Wali, voluntarily and without duress, to the satisfaction of the court waives the right of qisas under section 309 or compounds under section 310; and (c) When the right of qisas devolves on the offender as a result of the death of the Wali of the Victim, or on the person who has no right of Qisas against the offender. Section 308: Punishment in qatl-e-amd not liable to qisas, etc.-- (1) where an offender guilty of Qatl-e-amd is not liable to qisas under section 306 or the qisas is not enforceable under clause ( c) of section 307, he shall be liable to diyat: Section 309. Waiver. Afw of qisas in qatl-e- amd. In case of qatl-e-amd and adult sane wali may, at any time and without any compensation, waive his right of Qisas. Section 310: Compounding of qisas (Sulh) in qatl-e-amd.--In the case of Qatl-e-amd, an adult sane wali may, at any time on accepting badal-i-Sulh, compound his right of qisas. Section 311. Ta'zir after waiver or compounding of right of qisas in qatl-e-amd. ---------- EFFECT OF 18TH AMENDMENT ON THE LEGISLATIVE POWERS OF THE FEDERATION AND PROVINCES [A Case of Labour Legislation in the changed Constitutional Scenario] By M. S. Jamal, Advocate, Lahore With the repeal of Concurrent Legislative List Legal debate/ controversy has started on the issue whether Federal Legislature can legislate on labour-related matters after the devolution plan was affected within the meaning of the Constitution. Professionals are divided in opinion. May we find a legal way to the power of the Federal legislature in this regard, in view of trade unionism related commitments of the Federal Government and need to address the labour relations issues of national importance? The 18th Constitutional Amendment that came into force on 20th April, 2010 has repealed, the distribution of legislative powers between the Federation and Provinces the Concurrent Legislative List (by omitting entries 1-47) from Schedule IV appended to the Constitution through Majlis-e-Shoora (Parliament) and Provincial Assembly respectively that is governed by Articles 141 - 144 will now be in the amended shape as follows;-- "Subject to the Constitution, Majlis-e-Shoora (Parliament) may make laws (including laws having extra-territorial operation) for the whole or any part of Pakistan, and a Provincial Assembly may make laws for or any part thereof - (Art.141). Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List - (Art.142(a). Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence - (Art.142(b)). Subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not have power to make laws with respect to any matter not enumerated in the Federal Legislative List - (Art.142(c). Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province - (Art.142(d))." Article 143 relates to inconsistency between Federal and Provincial laws and so it will not be relevant to our discussion on the distribution of subject areas between the Parliament and a Provincial Assembly for the purpose of legislation. The possibility to invoke the application of Article 144(1) (reproduced below) is, however, examined in this regard.-- Article 144(1).--If one or more Provincial Assemblies pass resolutions to the effect that Majlis-e-Shoora (Parliament) may by law regulate any matter not enumerated in the Federal Legislative List in the Fourth Schedule, it shall be lawful for Majlis-e-Shoora (Parliament) to pass an Act for regulating the matter accordingly, but any Act so passed may, as respects any Province to which it applies, be amended or repealed by Act of the Assembly of that Province. It is clear from the above provisions of the Constitution that if the matter of legislation on labour-related issues stands exclusively transferred from the domain of the Federation to Provinces as Federal powers in that regard are absolutely clinched and taken away, all efforts then to re-cloth the Federal Legislature with these powers will be an exercise in futile. If so needed for pronounced objectives of national importance to enable a Federal Labour Relations Bill to get through, the only remedy is to invoke the provision of Art.144 above. However, in such a case the province will have precedence or supremacy over the Federation. This will be an unusual situation and so it will be difficult to adhere to in normal circumstances. Let us now look at the subject of labour entries omitted from the repealed Concurrent Legislative List. These appear at S.Nos.26, 27, 28, 29, 30 and 31 and are reproduced below for the sake of reference:-- "26. Welfare of labour, conditions of labour, provident fund, employers' liability and workman's compensation, health insurance including invalidity pensions, old age pensions". "27. Trade unions; industrial and labour disputes". "28. The setting up and carrying on of labour exchanges, employment information bureaus and training establishments". "29. Boilers" "30. Regulation of labour and safety in mines, factories and oil fields". "31. Unemployment insurance." Laws on most of these subjects continue to exist on the statute book albeit their ownership is still to be determined. Mostly the Federal Government or erstwhile Central Government made those during British Rule in India. But laws on trade unions; industrial and labour disputes were made unequivocally by the Central Government by fully adhering to the laissez faire policy of the British mind in India to meet specific industrial objectives and the requirement of the time. Exercise of the doctrine of state intervention was intentionally avoided. India continues with the laissez faire policy of British time as evident from its labour relations laws discussed in the later part of this article. Clear departure from this policy was made in Air Marshal Noor Khan's Labour Policy of 1969 that resulted in the enactment of the Industrial Relations Ordinance, 1969. For the first time the law in its roots was based closely on the parameters of ILO's basic democratic Conventions No.87 (freedom of association) and No.98 (collective bargaining). This law was amended quit a number of times in the years to come. The system of Industrial Relations was strengthened by the Z.A. Bhutto's Labour Policy of 1972, known as fair deal in labour. Separate and independent Labour Judiciary (Labour Courts and, Courts and, Labour Appellate Tribunals in the provincial setting) that was brought in place under IRO 1969 was further strengthened, streamlined and integrated with a newly created quasi-judicial body in the name of National Industrial Relations Commission, at the national level. The new body was entrusted with multiple functions including adjudication and overall superintendence over the working of the provincial labour courts. In this way, a well-planned regulatory system of labour relations was brought in force. The subject of trade unionism and freedom of association was dealt with both at the national and provincial level in a systematic manner. In addition, the requirement of workplace industrial relations was also not overlooked. The institution of participative management and procedure of redress of individual grievance were introduced in this law, enacted by the Federal Government. When this legislative framework has delivered considerable output, question arises: can adversarial effects so generated by the legislative and administrative devolution plan save it? Will the ownership of existing laws under the devolution plan be completely transferred to the Provinces or will these laws be repealed and Provinces will enact new laws on the subjects thereof to meet province - specific situation and conditions or the will Federal Government continue to have stake in their existence? To me it is not an easy task to summarily dispose of this huge work done during pre - and post-independence period. In any way any decision to dispense with this serious legislative asset with a stroke of pen will be fatal. Let us have a quick comparison with Indian legislative approach. Central Labour Acts in India cover the following areas:-- * Laws related to Industrial Relations * Laws related to Wages * Laws related to Working Hours, Condition of Service and Employment * Laws related to Equality and Employment of Women * Laws related to Deprived and Disadvantaged Sections of the Society * Laws related to Social Security * Laws related to Labour Welfare * Laws related to Employment and Training * Others And the Laws related to Industrial Relations are:-- 1. The Trade Unions Act, 1926 2. The Trade Unions (Amendments) Act, 2001 3. The Industrial Employment (Standing Orders) Act, 1946 4. The Industrial Employment (Standing Orders) Rules, 1946 5. The Industrial Dispute Act, 1947 While Pakistan has around 70 labour enactments on the statute book, the total laws on the statute book of India are 53 in number, out of which 9 were from the pre-partition period, enacted by the British Rule in India and the remaining 44 were enacted by India in the post-partition period. Out of five laws related to industrial relation 3 are from the British time. Evidently, India continues with the policy of British Empire in India with regard to industrial relation that was overwhelmingly the policy of laissez faire or non-interventionism as pointed out in the above account. Another sharp contrast with India is the unique legislative development in Pakistan. ILO Conventions 87 and 98 concerning freedom of association and collective bargaining ratified respectively were ratified by Pakistan in the years 1951 and 1952. In pursuance of its commitment to ILO, Pakistan closely structured its industrial relations law based on the premises of these instruments. It is to be noted that India on the other hand has not so far ratified ILO Conventions 87 and 98 and therefore is not bound to base its labour relations law on these instrument. Pakistan does on the other hand. Pakistan has honored faithfully ILO's instruments, from the day of framing its Constitution in 1973. It is work-mentioning that it has also included the subjects of international treaties, conventions and agreements and international arbitration (concerning various Ministries) as Entry No.37 in the Federal Legislative List besides keeping the Concurrent Legislative List along with it in the Constitution. Is it not a mark of Pakistan's international and national concern besides recognizing Provincial capability to legislate for the interest of Provinces? ILO Conventions covering vast areas of the subject of LABOUR, with close proximity with almost all labour-related entries contained in the Concurrent Legislative List. Pakistan invariably is to legislate, broadly covering the following subject matters of ILO Convention ratified by it:-- * Freedom of Association and Collective Bargaining * Freedom of Association in Agriculture *. Working Hours and Rest Intervals * Employment of Women and Young Persons * Periodical Medical Examination * Workmen Compensation and Social Security * Employment of Young Persons and Children * Employment of Disabled Persons * Non-fee Charging Employment Agencies * Equality of Opportunity and Treatment * Labour Inspection * Suppression of Forced Labour * Abolition of Forced Labour * Worst Forms of Child Labour * Tripartite Consultation on Labour Standards * Indisgenous and Tribal Population * Seafarer's Identification Document * Gender Equality based Remunerations * Employment and working conditions in factories, mines, commerce, ships, docks etc. The Conventions on these subjects as ratified by Pakistan include C.1, C.4, C.6, C.11, C.14, C.16, C.18, C.19, C.21, C.22, C.27, C.29, C.32, C.45, C.59, C.80, C.81, C.87, C.89, C.90, C.96, C.98, C.100, C.105, C.111, C.116, C.118, C.138, C.144, C.159, C.182, C.185. In other words, these subjects being part of the Federal Legislative List rightly fall in the domain of Federal legislature, though these subjects barring labour welfare areas if are further narrowed down safely cover the subjects of items 26, 27, 28 and 30 of the repealed Concurrent Legislative List. Nevertheless, this does not mean that the Federal Legislature is debarred to legislate on the subject areas of these Conventions. Despite the fact that one school of lawyer holds this view. They treat Conventions to be honoured by the Provinces also, but exclusive legislative power henceforth rests with them. This is a wrong perception and denial of a fact on the face of it. Article 142(a) clearly holds that the Parliament shall have exclusive power to make laws with respect to any matter in the Federal Legislative List. Virtually, trade unionism is universally acknowledged as subject of international character. Wherever legislation has been made on labour relations or trade unionism, it has been one at the national level. In a federal set up, provinces and states are automatically covered. Not only has this, Article 17(1) of the Constitution 1973 of the country, which is supreme law, also endorsed the commitment of Pakistan to freedom of association. Now, because of 18th amendment the entire edifice of legal structure of industrial relation has been demolished, consciously or unconsciously. No bigger harm to the basis of industrial relations law was done before, not even in General Zial-ul-Haq's time whose policies were opposed to trade unionism. It is a matter of recorded history that he did not allow any labour policy to come in his lifetime. Now, if Provincial legislature is to legislate in labour relations field independent of the Federation, its limits should be province-specific. For example, to legislate on workplace industrial relations and creation of provincial level labour judiciary and its linkage with Provincial High Courts. Even it can effectively evolve legislative measures to protect and bi-partite workplace code of conducts within provincial boundaries. Logically, it would be appropriate for the Provinces to legislative for higher productivity derives and workplace productivity bargain, welfare schemes, social security, labour inspection, social insurance, provident fund, creation of housing colonies for workers, safety and health at workplaces, workers children education, vocational training, wages etc. It is generally contended that the decision to abolish Concurrent Legislative List along with the decision to abolish certain subject-related administrative ministries including the M/o Labour were taken in pursuance of the obligation laid down in Article 37, clause (i) of the Constitution of 1973 as contained in the Principles of Policy that reads as follows:-- "The State shall decentralize the Government administration so as to facilitate expeditious disposal of its business to meet the convenience and requirements of the public." Let me say that the abolition of Concurrent Legislative List prima facie has no nexus with the decentralization of Government administration, but the decision to abolish administrative ministries will be construed as having link with decentralization of Federal Government business or administration. However, creating this nexus or link with abolition of Concurrent Legislative List is not understandable. Nevertheless, to my perception it is not a wise decision as it may lead to multiple administrative issues and public inconvenience and difficulties. The question is who will check whom and who will coordinate the corresponding business in the provisions. Moreover, ministries are created under the rules of business made under Article 99(3) of the Constitution for the allocation and transaction of the business of the Federal Government. The ministries too are representatives of the state to the outside world. In fact, by the decision in an un-thoughtful manner and without lot of spadework is rightly creating confusion and upheaval in the arena in legislative as well as administrative work. Furthermore, Article 146 rightly provides the practical basis for transfer of any business to the provinces. It reads as follows:-- "Article 146(1). Notwithstanding anything contained in the Constitution, the Federal Government may with the consent of the Government of a Province, entrust either conditionally or unconditionally to that Government, or to its officers, functions in relation to any matter to which the executive authority of the Federation extends." Now, if the Federal Government is to rise to the occasion it can invoke the Federal Legislative List to make a clear law on industrial relations without duplicating functions with the Provinces on the subject. They are also advised not to devolve the Ministry of Labour for obvious reasons. At least there must be a relevant Ministry to do all this business for the Federal Government and to act as country's true representative at international forum. The set up of the Ministry of Labour and Manpower developed over a considerable period of time should not be allowed to devolve; otherwise, loss will be irreparable and irreversible. It is generally contended that the decision to abolish Concurrent Legislative List along with the decision to abolish certain subject-related administrative ministries including the M/o Labour were taken in pursuance of the obligation laid down in Article 37, clause (i) of the Constitution of 1973 as contained in the Principles of Policy that reads as follows:- "The State shall decentralize the Government administration so as to facilitate expeditious disposal of its business to meet the convenience and requirements of the public." Let me say that the abolition of Concurrent Legislative List prima facie has no nexus with the decentralization of Government administration, but the decision to abolish administrative ministries will be construed as having link with decentralization of Federal Government business or administration. However, creating this nexus or link with abolition of Concurrent Legislative List is not understandable. Nevertheless, to my perception it is not a wise decision as it may lead to multiple administrative issues and public inconvenience and difficulties. The question is who will check whom and who will coordinate the corresponding business in the provisions. Moreover, ministries are created under the rules of business made under Article 99(3) of the Constitution for the allocation and transaction of the business of the Federal Government. The ministries too are representatives of the state to the outside world. In fact, by the decision in an un-thoughtful manner and without lot of spadework is rightly creating confusion and upheaval in the arena in legislative as well as administrative work. Furthermore, Article 146 rightly provides the practical basis for transfer of any business to the provinces. It reads as follows:-- "Article 146(1). Notwithstanding anything contained in the Constitution, the Federal Government may with the consent of the Government of a Province, entrust either conditionally or unconditionally to that Government, or to its officers, functions in relation to any matter to which the executive authority of the Federation extends." Now, if the Federal Government is to rise to the occasion it can invoke the Federal Legislative List to make a clear law on industrial relations without duplicating functions with the Provinces on the subject. They are also advised not to devolve the Ministry of Labour for obvious reasons. At least there must be a relevant Ministry to do all this business for the Federal Government and to act as country's true representative at international forum. The set up of the Ministry of Labour and Manpower developed over a considerable period of time should not be allowed to devolve; otherwise, loss will be irreparable and irreversible.