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Introduction

  • Hisham R. Hashem

Abstract

The labour law in the U.A.R. is Latin inspired. The inspiration in the main is French. This can be deduced from the comparison of the legislative provisions in the two countries,1 and the frequent reference in the U.A.R. to the French jurisprudence.2 The preparatory work for the Civil Code of 1948, contains abundant evidence of the Latin inspiration.3

Keywords

Arab Country Civil Code Arabic Text Labour Legislation Labour Code 
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References

  1. 1.
    To mention but some examples, cf. section 51 of the U.A.R. Labour Code, with section 51 of Book I of the French Labour Code — Vide the International Survey of Legal Decisions on Labour Law (issued yearly by the I.L.O., since 1926, but regrettably stopped in 1939, hereinafter, called I.S.D.L.), Vol. 1, 1926, p. 114; cf. section 74 with section 23 of these two Codes, respectively — Vide I.S.D.L., Vol. 2, 1927, p. 103; section 85 with 23 of the two Codes, respectively — Vide I.S.D.L., Vol. 7, 1933, p. 101; cf. section 86 with section 24 of the two Codes, respectively — Vide I.L.R., Vol. 79, 1959, p. 633; cf. sections 91 and 92 with section 31 c of the two Codes, respectively — Vide I.S.D.L., Vol. 1, p, 105. Section 75 (6) of the U.A.R. Labour Code was copied from a French Act dated 19 July 1928 — Vide I.S.D.L., Vol. 4, 1929, p. 56. Section 86 of the U.A.R. Labour Code, was copied from the French Law, as reported in Shark El-Kawaneen Al-Munadhema Li ‘A kd El-’Amal, by Butros, R., and Rajab, A. E., 1957, in Arabic, Cairo (hereinafter called Butros and Rajab), p. 327. Section 676 of the Civil Code was copied from section 29 K of Book I of the French Labour Code — Vide Al-Wageez Fi Kanun El-’Amal, by Zaki, M. J. E., 1962, in Arabic, Cairo (hereinafter called Zaki), p. 143; and vide I. L. R., Vol. 32, 1935, pp. 374, 384 and 492, for the comparison of section 676 with the French, Italian and Swiss legislation, respectively. Sections 686 and 687 compare well with the French and Swiss legislation — Vide I.L.R., Vol. 32, 1935, pp. 380 and 498, respectively. Section 688 compares well with the Swiss and Italian legislation — Vide I.L.R., Vol. 83, 1961, pp. 38 and 49 and 43, respectively.Google Scholar
  2. 2.
    For some examples, vide Al-Marje’ Fi Kanun ’Akd El-’Amal El-Fardi Wa Al-Mabade’ El-Kanuniya Likanunai Isabat El-’Amal Wa Amradh El-Mihna, by Badawi, K. M., 1955, in Arabic, Cairo (hereinafter, called Badawi, K. M.), p. 285, for the reference to a French decision, reported in Dalloz Hebdomadaire, 1927, p. 378, for the purposes of section 72 of the U.A.R. Labour Code; refer to the same author, p. 301, for the judicial history of the doctrine of justification of the termination of the contract in France, for the purposes of section 74 of the Labour Code; refer to the same author, p. 388, for the reference to a French decision, reported in Dalloz Hebdom., 1937, p. 519, for the purposes of section 76(7) of the Labour Code; refer to the same author, p. 273, for the comparison of sections 71 and 679 of the Labour and Civil Codes, respectively, with the French decision reported in Dalloz Hebdom., 1949, p. 598; refer to Butros and Rajab, pp. 96–7, for the comparison of section 683 of the Civil Code, with the French decision of Cass. Civ. on 22 December 1925; cf. section 684(3) of the Civil Code, with the French decision in Bel V. Servonnet (1925), Rev. Prud., 1925, p. 174 (I.S.D.L., Vol. 1, 1926, p. 117) — and cf. in this respect, the decision of Cass. Civ., on 7 May 1913 (mentioned in Butros and Rajab, p. 95); vide also the last mentioned author, pp. 346–7, for a comparison of section 686(1) of the Civil Code, with the French jurisprudence. Vide the reference to the French legal term lien de subordination, by the Cairo Labour Court, in case No. 3258 of 1954 (in Badawi, K. M., p. 32); vide the reference to the French writer Durand, by the Cairo Court of Cassation, in case No. 415 of 1953 (in Badawi, K. M., p. 201); vide the reference, in the last-mentioned author, p. 182, to the French writers Planiol et Ripert and others; and vide the use of the French term règlement de travail (the counterpart for the English term work rules), by the same author, p. 247, and by Butros and Rajab, p. 321.Google Scholar
  3. 3.
    Vide El-Areef, p. 5; and Zaki, pp. 98 and 100.Google Scholar
  4. 4.
    Vide the Labour Survey of North Africa, published by the I.L.O. in 1960, Geneva, (hereinafter, called the Labour Survey of North Africa), pp. 209, 253 and 254.Google Scholar
  5. 5.
    Vide Sections II and III of the present Part I, infra Google Scholar
  6. 6.
    The Laws of the Sudan, Vol. 10, Title XXVI, sub-Title 1.Google Scholar
  7. 7.
    Fatma Sharif V. Mansour El-Sheveli and others (1920), A.C./App. 3.Google Scholar
  8. 8.
    Vide Chapter VII of The Labour Movement in the Sudan, by Fawzi, S. E., 1957, Oxford University Press, London, hereinafter called Fawzi.Google Scholar
  9. 9.
    Vide The Reception of the Common Law in Sudan, by E. Guttmann, in the International and Comparative Law Quarterly, Vol. 6, 1957, p. 401. For further enlightenment, refer to Justice, Equity and Good Conscience, by D. M. Derrett, in p. 114, of the Changing Law In Developing Countries, edited by J. N. D. Anderson, 1963, George Allen and Unwin Ltd., London.Google Scholar
  10. 10.
    Vide The Law Relating to Service in India, Vol. I, The Law of Master and Servant, by Barwell, N., and Kar, S. S., 1st ed., 1952, Orient Longmans Ltd., Bombay, (hereinafter, called Barwell and Kar), p. 253.Google Scholar
  11. 11.
    The Heirs of Ibrahim Khalil V. Ahmad Hassan Abdel Moneim and Brothers (1926), A.C./App. 2.Google Scholar
  12. 12.
    Bakheita Ibrahim V. Hamad Mahayoub (1957), AC/REV/8 (reported in The Sudan Law Journal and Reports, 1957, The Sudan Bookshop, Khartoum, p. 25, hereinafter, called the S.L.J.R.), is a modern case, in which the English Common Law was rejected, for the same reason.Google Scholar
  13. 13.
    The Arabic text has precedence over the English text. The writer, while serving in Sudan, first as a judge, and later as a Legal Counsel to the Sudan Government, from 1956 to 1962, was the Secretary, for two and a half years, of the Law Arabisation Committee, which was charged with the rendering into Arabic, of the eleven volumes of the pre-independence laws, which were enacted in English. The task is yet to be accomplished. The legal education in the University of Khartoum, is still rendered in English.Google Scholar
  14. 14.
    Vide Book II of the Majallah; El-Areef, p. 148; and Shark ’Akd El-’Amal Fi El-Kanun El-Muwahhad, by Habeeb, S. A., 1959, in Arabic, Cairo (hereinafter, called Habeeb), p. 24.Google Scholar
  15. 15.
    Vide Zaki, p. 77.Google Scholar
  16. 16.
    Law No. 131 of 28 October 1883; i.e. one year after the British occupation. It is indeed surprising that the direct British influence in the country, which continued for many years thereafter, did not effectually change the course of the U.A.R. legal system, which was already set upon the French inspiration, ever since the days of Napoleon in the country.Google Scholar
  17. 17.
    Vide Badawi, Z., Vol. I, p. 20.Google Scholar
  18. 18.
    The equivalent sections of the Civil Code, which used to be applied by the Mixed Courts, were sections 489–493 (vide Badawi, Z., Vol. I., p. 20). The Mixed Courts were established in 1875, while the country was still governed by the Turks, to try civil and commercial cases, in which the parties were of different nationalities. The capitulations, which permitted the establishment of these courts, resulted in the development of privileges for the foreign nationals, over the native population. The British Government inherited these capitulations by occupation; and it preserved the Mixed Courts. These Courts were finally abolished on 15 October 1949. For further enlightenment on the Mixed Courts, vide The Mixed Courts of Egypt, by Brinton, J. Y., 1930, New Haven Yale University Press.Google Scholar
  19. 19.
    Vide Sharh Wa Tahleel Kanun El-’Amal El-Kuwaiti Fi El-Kita’ El-Ahli, by Madkour, M. T., 1960, in Arabic, Kuwait, p. 16, for an interesting example of the guild system, which was prevailing in the pearl fishing industry. All this, of course, is reminiscent of the pre-industrial revolution days in Europe.Google Scholar
  20. 20.
    Vide El-Areef, p. 24; Zaki, p. 24; and Badawi, Z., Vol. L, p. 12.Google Scholar
  21. 21.
    The first I.L.O. expert, invited in 1932 by the U.A.R., in order to assist in the writing up of its labour laws, recommended among other things, the reference to the jurisprudence of the Mixed Courts, as a legislative source — vide Badawi, Z., Vol. I., p. 21.Google Scholar
  22. 22.
    Ibidem, p. 12.Google Scholar
  23. 23.
    The political consciousness of the working class against the British rulers, was partly translated into a social consciousness and struggle, against the British and other foreign investor — employers.Google Scholar
  24. 24.
    In 1909, the Government was obliged to provide some protection for employed children, by enacting Law No. 14, which was the first piece of modern labour legislation in the U.A.R. — Vide El-Areef, pp. 24–5; and Zaki, p. 30.Google Scholar
  25. 25.
    Vide El-Areef, p. 25; and Badawi, Z., Vol. I., p. 13.Google Scholar
  26. 26.
    These recommendations included the first draft of a labour law, to regulate the contract of employment — Vide Ibid., p. 20.Google Scholar
  27. 27.
    Vide Ibid., p. 14; and Zaki, p. 31. The acceptance of the expert’s advice explains the deplorable consistent Government policy of piece-meal enactment, until the policy was reversed, for the first time, in 1959, when the U. A.R. Labour Code was enacted.Google Scholar
  28. 28.
    Customs protective barriers, which were imposed in 1930, encouraged the development of the national industry — Vide Badawi, Z., Vol. I., p. 13.Google Scholar
  29. 29.
    Al-Jaridat-ul-Rasmiyyatu, No. 69 of 8 June 1944, in Arabic. This law was issued by the I.L.O., in its L.S., in English. It is interesting to note that the first draft of this law was introduced in the Parliament in 1935 — Vide Badawi, Z., Vol. I., p. 21.Google Scholar
  30. 30.
    Vide Badawi, K. M., p. 284. This instant effect was conditioned by a saving clause for the contract terms, which are more beneficial to the worker — vide Kanun El-’Amal El-Muwahhad ‘Ilman Wa ‘Amalan, by Naguib, F., and Bakr, A. E. R., 1959, in Arabic, Cairo (hereinafter, called Naguib and Bakr), p. 28; vide also Habeeb, pp. 214–7. The instant effect on the current contracts, does not amount to a retrospective effect of the law — vide Badawi, Z., Vol. I., pp. 20, 24, and 27; and Naguib and Bakr, p. 22 — Vide a different opinion, in Butros and Rajab, pp. 49, 68 and 318; and in Habeeb, pp. 213–4.Google Scholar
  31. 31.
    The newly acquired public character of the contract (l’ordre public), was mainly due to the legislator’s new projected intention of providing protection, for a larger section of the community— Vide Badawi, Z., Vol. I., p. 8; vide also I.L.R., Vol. 31, 1935, pp. 839 and 841–3; and Vol. 84, 1961, p. 175. This is understandable for social reasons, and reasons related to the public order. The protective character of this legislation is characterised, mainly by the provision of minimum standards, below which no contract can provide — Vide El-Areef, p. 420; Naguib and Bakr, p. 33; and I.L.R., Vol. 7, 1923, pp. 183 and 185–6. These standards are minimum standards, in as far as the interests of the worker and not the employer, are concerned: cf., for instance, sections 44 and 58 of the U.A.R. Labour Code, re the maximum period of probation, and the minimum length of the annual leave, respectively.Google Scholar
  32. 32.
    Vide the introduction to Al-Tashree’ El-Asasi Li ’Akd El-’Amal Kanun ’Akd El-’Amal El-Fardi Dirasat Mukarana ‘Ala Al-Nusus, by Rashed, J. E., and Hashem, M. K., 1954, in Arabic, Cairo, (hereinafter, called Rashed and Hashem).Google Scholar
  33. 33.
    Vide I.L.R., Vol. 34, 1936, p. 87.Google Scholar
  34. 34.
    It is interesting to note that this marked the introduction of the new concept of the justification of the termination of the contract, in some of the Near East Arab countries, excepting those inspired by the English Common Law.Google Scholar
  35. 35.
    That is still mainly the case, in England, India and Sudan.Google Scholar
  36. 36.
    This is Law No. 131 of 1948 (the U.A.R. Civil Code), which repealed the Civil Code of 1883.Google Scholar
  37. 37.
    Vide section 675 of the U.A.R. Civil Code, quoted in footnote 42, infra. Google Scholar
  38. 38.
    Vide El-Areef, p. 5, where he says: “The general trends that began to show in the International Survey of Legal Decisions on Labour Law, had a great effect on the drafting of these provisions of the Code... However, the Code was inspired in some of these provisions, by modern legislation, especially that of Poland, the Swiss Code des Obligations and the French and Italian legislation.”Google Scholar
  39. 39.
    Vide the definition of the contract, in section 674, in Part II, Chapter I, infra. Google Scholar
  40. 40.
    Vide Section 675 of the U.A.R. Civil Code, quoted in footnote 42, infra. Google Scholar
  41. 41.
    This was the last stage, as far as the Civil Code is concerned, because sections 674–698 were never amended.Google Scholar
  42. 42.
    Section 675 provides: “The provisions of this Chapter shall only apply in so far as special labour laws do not expressly or impliedly derogate therefrom. “The said laws shall specify the categories of workers to which the provisions of this Chapter shall not apply.”Google Scholar
  43. 43.
    Al-Jaridat-ul-Rasmiyyatu No. 157 (bis), 8 December 1952, in Arabic, (issued by the I.L.O. in its L.S., in 1952). The Explanatory Note to this law says: “Industry has developed in the country, to the extent that the effective laws were lagging behind. This prompted the introduction of new legislation, to cope with the new situation, and to do away with unrest, by further regulating the relationship between the workers and the employers, and their respective rights and obligations.”Google Scholar
  44. 44.
    It is worth noting that the agricultural workers form the largest section of the working class, in the U.A.R.Google Scholar
  45. 45.
    It also produced the bulk of the academic work, on the contract of employment.Google Scholar
  46. 46.
    Al-Jararidat-ul-Rasmiyyatu No. 30 (bis), Extraordinary, 9 April 1953.Google Scholar
  47. 47.
    The U.A.R. Labour Code.Google Scholar
  48. 48.
    Vide the Explanatory Note to the Code.Google Scholar
  49. 49.
    Both as codified in the Majallah, and otherwise.Google Scholar
  50. 50.
    Vide Section I of the present Part, supra. Google Scholar
  51. 51.
    1884–1898.Google Scholar
  52. 52.
    E. Guttmann, in the International and Comparative Law Quarterly, Vol. 6, 1957, p. 402.Google Scholar
  53. 53.
    Vide Section I of the present Part, supra. Google Scholar
  54. 54.
    Domestic servants are excepted from the U.A.R. Labour Code and the Sudan Ordinance — Vide Part II, Chapter I, infra. Google Scholar
  55. 55.
    Apprentices are expressly excepted from the Sudan Ordinance. Provisions, separate from Chapter I of Book II of the U.A.R. Labour Code, regulate the conditions of employment of apprentices.Google Scholar
  56. 56.
    The Laws of the Sudan, Vol. 8., Title XXII, Sub-Title 3.Google Scholar
  57. 57.
    Ibidem, Sub-Title 2.Google Scholar
  58. 58.
    The British Labour Party was in power, at the time.Google Scholar
  59. 59.
    Fawzi’s book (vide footnote 8, supra), is the main reference on the subject, under discussion. Chapter VII thereof is illuminating. Two articles by O. M. Osman, which appeared in the I.L.R., Vol. 78, 1958, p. 329, and Vol. 86, 1962, p. 235, are also illuminating. However, Sayed Osman attributes the late enactment of the labour legislation in Sudan, to “the fact that practically all urban wage labour had for a long time been employed by one employer who had sufficient moral obligations to maintain a high standard of working conditions and terms of employment-namely the Sudan Government” (Vol. 78, p. 340). That this is not totally correct, is clear from the labour agitation, which preceded the enactment of the said legislation, and was clamouring for benefits, much wider than those envisaged by the Government.Google Scholar
  60. 60.
    The Sudan Ordinance.Google Scholar
  61. 61.
    Much the same as what happened to the contract of employment in the U.A.R., by the enactment of 41 Law of 1944 — Vide Section I of the present Part, supra. Google Scholar
  62. 62.
    Cf., for instance, Articles 3 and 6 of Convention 64 (The Contracts of Employment (Indigenous Workers) Convention, 1939), with sections 4 and 6 of the Sudan Ordinance, respectively, (vide Part II, Chapter II, infra).Google Scholar
  63. 63.
    That a British expert was the draftsman of the Sudan Legislation, coupled with the English Common Law inspiration already accepted in Sudan, explains that effect. Cf., for instance, section 4 of the Sudan Ordinance, with the (now repealed) section 4 of the English Statute of Frauds, 1677 (Vide Party II, Chapter II, infra); and cf. section 10(2) of the Sudan Ordinance, with the English Common Law (Vide Part II, Chapter VI, infra).Google Scholar
  64. 64.
    The Sudan Railways and the other Government departmants employ the highest percentage of workers in Sudan.Google Scholar
  65. 65.
    This repugnance explains the general lack of legislation, on the contract of employment, in England.Google Scholar
  66. 66.
    Vide Section I of the present Part, supra. Google Scholar
  67. 67.
    Vide section 1(2) of the U.A.R. Civil Code.Google Scholar
  68. 68.
    It is only by virtue of the labour legislation, that penal sanctions were applied to the contract of employment.Google Scholar
  69. 69.
    Collective agreements usually contain details of the rights and obligations of the employers and the workers, and are good vehicles for filling in the gaps in the labour legislation. To the knowledge of the writer, only two collective agreements have so far been made in Sudan. The first is in the Misr Printing Works in Khartoum, and the second is in the Soap Factory in Khartoum North. Both agreements were signed on 5 September 1963, as reported in Al-Thawra Newspaper, No. 1043, dated 6 September 1963.Google Scholar
  70. 70.
    Vide Min-Hukuk Wa wagebat El-’Ummal Wa Ashab El-A’amal Fi Kanun El-’Amal El-’Iraqi, by El-Sa’eed, S. M., 1962, in Arabic, Baghdad, (hereinafter, called El-Sa’eed), p.11. The Code will, hereinafter, be called the Iraqi Civil Code.Google Scholar
  71. 71.
    Al-Jaridat-ul-Rasmiyyatu No. 4115 of 16 March 1958, in Arabic. The Code will, hereinafter, be called the Iraqi Labour Code. An English translation of the Code was issued by the I.L.O., in its L.S., 1961 — Iraq 1. But the writer referred to the Arabic text, as he did with the other Arab Labour Codes, legislated in Arabic, and did his own translation when necessary.Google Scholar
  72. 72.
    Al-Jaridat-ul-Rasmiyyatu, No. 216 of 15 March 1959, in Arabic. The Code will, hereinafter, be called the Kuwaiti Labour Code. It is interesting to note that the British protection in Kuwait, from 1899 to 1961, when Kuwait became independent, did not result in the adoption of the English Common Law principles, whether in the labour law or generally in the Civil and criminal laws.Google Scholar
  73. 73.
    Al-Jaridat-ul-Rasmiyyatu, No. 2 of 2 April 1962. The Code will, hereinafter, be called the Qatari Labour Code. It is interesting to note that reference to the U.A.R. law, directly and via Kuwait, was not precluded by the fact that Qatar was, and still is under British protection.Google Scholar
  74. 74.
    They were published by the Government Printing Press, in 1947. These will, hereinafter, be called the Saudi Regulations.Google Scholar
  75. 75.
    Vide Pan-Arabism and Labour, by Beling, W. A., 1960, Harvard, p. 69.Google Scholar
  76. 76.
    The Arabian American Oil Company (Aramco) has brought about this development. The Company employs the biggest percentage of workers, in the country. It is interesting to note the enactment of these regulations, within the context of the Moslem Law, otherwise applicable in the country. The writer watched the application of these regulations closely, whilst in the employment of Aramco, as a Labour Law Analyst, from 1952 to 1955.Google Scholar
  77. 77.
    Al-Jaridat-ul-Rasmiyyatu, No. 1491 of 21 May 1960, p. 511, in Arabic. This will, hereinafter, be called the Jordanian Labour Code. A translation of the Code in English, was issued by the I.L.O., in its L.S.- Jord. 1, 1960.Google Scholar
  78. 78.
    Al-Jaridat-ul-Rasmiyyatu, No. 17 of 24 November 1962, p. 3, in Arabic. This will, hereinafter, be called the Libyan Labour Code.Google Scholar
  79. 79.
    The Lebanon and Syria were under the French Mandate, from 1920 to 1946. This explains the direct influence of the French legal system. The Code will, hereinafter, be called the Lebanese Civil Code.Google Scholar
  80. 80.
    This was legislated in Arabic. The I.L.O. issued an English translation of the Code, in its L.S., 1946-Leb. 1, but indirectly through a French translation. The Code will, hereinafter, be called the Lebanese Labour Code.Google Scholar
  81. 81.
    Al-Jaridat-ul-Rasmiyyatu, No. 27 of 21 May 1949, in Arabic. The I.L.O. issued an English translation of sections 640–664 thereof, which regulated the contract of employment, in its L.S., 1949-Syr. 1.Google Scholar
  82. 82.
    Reference to this Code will not be necessary, because its provisions are almost identical with the relevant provisions of the U.A.R. Civil Code.Google Scholar
  83. 83.
    Al-Jaridat-ul-Rasmiyyatu, No. 36, of 29 July 1960, in Arabic. This Code will, hereinafter, be called the Tunisian Labour Code.Google Scholar
  84. 84.
    The fact that Tunisia was under the French protection, from 1881 to 1956, accounts for the direct influence of the French Law.Google Scholar
  85. 85.
    France legislated for Algeria, from 1830 to 1962, when Algeria became independent. Morocco was under French protection, from 1912 to 1956; and this explains the direct influence of the French Law.Google Scholar
  86. 86.
    An English translation of the Code was published, by the British Political Resident in the Persian Gulf; and appears in L.S., 1957-Bahl. This is the only text of the Code, which the writer could obtain. The Code will, hereinafter, be called the Bahraini Labour Code.Google Scholar
  87. 87.
    The fact that Bahrain came under the British protection since 1880, explains the reference to the English Common Law.Google Scholar
  88. 88.
    This was legislated in English, as was the Sudan Ordinance. This will, hereinafter, be called the Adenese Ordinance.Google Scholar
  89. 89.
    The fact that Aden was a British colony from 1839, until it was annexed in 1963, to the still British protected South Arabian Federation, accounts for the reference to the English Common Law.Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 1964

Authors and Affiliations

  • Hisham R. Hashem
    • 1
  1. 1.Lincoln’s Inn, Barrister-at-LawUK

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