Section 1 of IRO 2011 provides that:
“It shall apply to all persons employed in any establishment or industry, in the Islamabad Capital Territory or carrying on business in more than one province.”
Another justification which may be used by the Federal Government for protection of IRO 2011 might be that in Part II of Federal Legislative list at Sr. No. 13 it says that Parliament may legislate on “inter-provincial matters and co-ordination”.
Furthermore, Article 97 of the Constitution of Islamic Republic of Pakistan provides that:
“Subject to the Constitution, the executive authority of the Federation shall extend to the matters with respect to which Parliament has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan.”
Article 97 should be read with Federal Legislative list Part 1 Item at Sr. No 3 and 32 which read as:
3—External affairs; the implementing of treaties and agreements, including educational and cultural pacts and agreements, with other counties; extradition, including the surrender of criminals and accused persons to Governments outside Pakistan.
32—International treaties, conventions and agreements and international arbitration.
Admittedly Pakistan is a signatory to the ILO Conventions regarding trade union activities and other labour matters and therefore it can be argued that Parliament has the power to make laws in respect of these matters.
A comparative study with other jurisdictions such as United Kingdom and United States of America are useful to comprehend the crux of the issue.
It was held in the case of Maclaine Watson & Co. Ltd V Department of Trade and Industry and related appeals Maclanine Watson & Co Ltd V International Tin Council (The all England Law Reports 1989 Volume 3) that:
“A treaty is a contract between the governments of two or more sovereign States. International law regulates thea relations between sovereign States and determines the validity, the interpretation and the enforcement of treaties. A treaty to which Her Majesty’s government is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation. Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the Courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual.”
“The second is that, as a matter of the Constitutional law of the United Kingdom, the royal prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights on individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the Court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, its is irrelevant.”
Article VI clause (2) of the United States Constitution provides that:
“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the Land; and the Judges in every state Shall be bound thereby, any thing in the Constitution or Laws of any State to the contrary notwithstanding.”
It is clear from the above clause that in the United States Constitution treaties have been given the same force as law, subject only to the Constitution. It was clearly held in the case of De Geofroy v Riggs 133 U.S. 258 by Justice Field that:
“That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations, is clear…..The treaty power, as expressed in the Constitution is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments……..It would not be contended that it extends so far as to authorise what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent….But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country.”
Therefore, it is clear that given these limitations on the scope of treaty making power, unless treaties are contrary to the Constitution, they are equal in status to Congressional legislation, and, as expressly provided in the text of the Constitution, the supreme law of the land.
Under IRO 2011 workman has to approach NIRC for redressal of his individual grievances and against unfair labour practices. NIRC has been given the power under section 57(2)(b) to withdraw from provincial labour courts cases, miscellaneous applications, proceedings or appeal relating to unfair labour practice which fall within the jurisdiction of the Commission.
In addition section 57(5) of IRO 2011 provides that:
“Save as provided in sub-section (4) no Registrar, Labour Court or Labour Appellate Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission.
Provided that no Court, including Labour Court, shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission.”
Furthermore, section 87 of IRO 2011 provides that:
“The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force.”
It is yet to be seen whether or not IRO 2011 will be made an Act of Parliament and whether or not Parliament is empowered to legislate on the said matter. The matter can only be resolved by the Superior Courts as it involves the issues of interpretation of Constitution. In any case it can safely be stated that IRO 2011 is a valid piece of legislation till 17th March 2012 when it will lapse unless it is made an Act of Parliament. (Concluded)
The writer is the Barrister-at-Law (Lincoln’s Inn)