Informe provisional - Informe núm. 81, 1965

Caso núm. 291 (Reino Unido de Gran Bretaña e Irlanda del Norte) - Fecha de presentación de la queja:: 07-ABR-62 - Cerrado

1. 71. The Committee, after having considered this case at its meetings in February 1963 and May 1963, examined it further at its meeting in June 1964, when it submitted to the Governing Body the interim report contained in paragraphs 118 to 221 of its 76th Report, which was approved by the Governing Body at its 159th Session (June-July 1964).
2. 72. In that report the Committee recommended the Governing Body to dismiss the allegations relating to the political and legislative system in Aden and to measures taken during the state of emergency and, subject to reservations, the allegations relating to the Registration of Societies Bill. With regard to the remaining allegations, which are dealt with in the present report, the Committee requested the Government of the United Kingdom to furnish additional information or, in some cases, to forward its observations.
3. 73. The United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and has declared them to be applicable, without modification, to Aden.

A. A. The complainants' allegations

• Allegations relating to the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960
  74. 74 These allegations were considered by the Committee at its meeting in June 1964 and dealt with in paragraphs 121 to 130 of its 76th Report. The Committee noted that, in its report furnished for the period 1961-63 with respect to the application in Aden of the Abolition of Forced Labour Convention, 1957 (No. 105), the Government of the United Kingdom had stated that urgent consideration was being given to the repeal of the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960, and its replacement by a new ordinance concerning the conduct of industrial relations. The Committee decided to request the Government to be good enough to inform it whether discussions in the Joint Advisory Council set up in Aden were still continuing, whether the Aden Trades Union Congress was participating in the Council, and what proposals had emerged from the discussions concerning the possible amendment of the Ordinance of 1960, having regard especially to its statement referred to above.
  75. 75 In a communication dated 6 November 1964 the Government of the United Kingdom confirms that the Joint Advisory Council in Aden is functioning and that the Aden T.U.C is participating, and states that the Council has now made recommendations to the Government of Aden concerning possible amendments to the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960, that the new Aden Government will give early consideration to this matter and that the recommendations of the Joint Advisory Council will be taken fully into account when this is done.
  76. 76 In these circumstances the Committee takes note of the Government's statement and requests it to be good enough to inform the Committee, as soon as possible, of further developments in the matter.
• Allegations relating to the Application of the Penal Provisions of the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960
  77. 77 In paragraphs 131 to 165 of its 76th Report the Committee examined allegations relating to the application of the penal provisions of the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960, and to a number of specific cases.
  78. 78 The large majority of the cases alleged arose out of a series of strikes between October 1961 and December 1963. At its meeting in June 1964 the Committee, after reviewing the evidence at length, observed that the strikes of 22 October 1962, October 1963 and November-December 1963 were apparently in support of economic demands, although in contravention of the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960; the prosecutions of strikers which ensued were based on the penal provisions of the ordinance. In view of the fact that the Government had stated that the ordinance might be amended or repealed and of the fact that the Committee had decided to request the Government for further information as to developments in this connection, the Committee took the view that it should await the further information requested in respect of the ordinance in general before submitting its final recommendations to the Governing Body concerning the application of particular provisions of that ordinance in specific cases.
  79. 79 The Committee now has before it information from the Government (see paragraph 75 above) to the effect that the question of amendment of the ordinance is to receive the early consideration of the new Aden Government and has decided to request the Government of the United Kingdom to inform it as early as possible of further developments. In these circumstances the Committee considers that it should continue to await the outcome in this more general aspect of the matter before submitting recommendations on the specific cases which have come before it.
  80. 80 The Committee also observed at its meeting in June 1964, however, that certain cases of prosecution for sedition were not directly related to the ordinance at all.
  81. 81 The first of these cases related to Mr. Murshed, General Secretary of the General and Technical Workers' Union, sentenced on the charge of sedition to 18 months' imprisonment (reduced on appeal to 12 months), the Government having stated that the charge had been brought under section 124 A of the Penal Code in respect of a speech made on 24 October 1961 at the Aden T.U.C premises. The Committee decided, therefore, to request the Government to furnish more precise details as to the contents of this speech.,
  82. 82 By a communication dated 9 November 1964 the Government forwarded a copy of the speech in question.
  83. 83 The speech consisted essentially of a denial by Mr. Murshed of the Government's contention that the strike of labourers then taking place contravened section 10 of the Industrial Relations (Conciliation and Arbitration) Ordinance. Mr. Murshed declared that the workers did not recognise the Industrial Court and that it was the duty of the labourers to continue their strike and the duty of everybody else to support them-otherwise they could have no protection from " the provocation and insults " of the contractors, the Government and the Contractors' Union. He also urged the workers to tell their children to strike from their studies and challenged the Government to deport them or to prosecute them.
  84. 84 The Committee observes that, from the evidence now before it, while a national court and an appellate court found Mr. Murshed to be guilty of sedition, the essence of the sedition charge upheld by the court appears to have been founded on his exhortations to contravene the Industrial Relations (Conciliation and Arbitration) Ordinance. In these circumstances, particularly as Mr. Murshed was also prosecuted on charges of contravening the ordinance, the Committee prefers to defer its final conclusions on the case of Mr. Murshed also until it has before it the information requested with regard to the possible amendment of the ordinance.
  85. 85 The second sedition case related to Mr. Abdulla Al Asnag, General Secretary of the Aden T.U.C, and his colleague, Mr. Idris Hambala. In a communication dated 11 November 1963 the Government said that Mr. Al Asnag was arrested on 8 November 1962 and charged under section 124 A of the Penal Code with conspiring to publish a seditious pamphlet entitled 24 September, the Immortal (Eternal) Day. In mid-December he was sentenced to 12 months' rigorous imprisonment, reduced to eight months by the Aden Court of Appeal. On 3 June 1963 the conviction and sentence were quashed by the Nairobi Court of Appeal; he had been released on 21 April 1963 after serving his sentence less duly earned remission. Mr. Hambala had been sentenced on the same charge to nine months' rigorous imprisonment, reduced to six months by the Aden Court of Appeal. His conviction and sentence were also quashed by the Nairobi Court of Appeal after he had served his sentence, less duly earned remission, and been released on 11 March 1963. It appears that from the date of their original arrest in November 1962 to the date of their release after serving their sentences bail was not granted.
  86. 86 At its meeting in June 1964 the Committee observed that it had pointed out in certain earlier cases that the arrest or detention of trade unionists concerning whom no grounds for conviction are subsequently found is liable to involve restrictions of trade union rights. As it did not know whether the convictions of Mr. Al Asnag and Mr. Hambala were quashed on the merits of the case or on technical grounds, the Committee requested the Government to furnish a copy of the judgment of the Nairobi Court of Appeal.
  87. 87 A copy of the judgment was forwarded by the Government on 9 November 1964.
  88. 88 A considerable part of the judgment deals with the interpretation of " seditious intent " and the jurisprudence in this matter, following which the Nairobi Court of Appeal expressed the view " that in order to establish the offence charged it was necessary to prove that the appellants had a seditious intention ". The Nairobi Court was concerned only with questions of law. It observed that the Chief Justice of the Aden Appeal Court had taken the view that " the appellants must be deemed to have had a seditious intention since the Pamphlet which they agreed to publish was in fact seditious, even though they may have no knowledge of its seditious nature ". The Nairobi Court of Appeal rejected this argument, ruling that " if the appellants had no knowledge of the seditious contents of the pamphlet when they agreed to publish it, they did not have knowledge of the nature of their acts and, without such knowledge, no presumption of a seditious intent on their part could arise... merely from the fact that the pamphlet itself was seditious. The onus being upon the Crown to establish a seditious intention on the part of the appellants, we think it was clearly upon the Crown to establish the appellants' knowledge of the contents of the pamphlet ". The court then observed that the trial magistrate had made no express finding as to the appellants' knowledge of the contents of the pamphlet and went on to say that it would be unsafe to conclude that, when the magistrate had said the appellants had full knowledge of the nature of the pamphlet, he meant any more than that they had full knowledge that a pamphlet was to be published on the subject of the events of 24 September. " In the absence of any finding as to the appellants' knowledge of the contents of the pamphlet ", said the Nairobi Court, " we are unable to say that a seditious intent on the part of the appellants was established."
  89. 89 While the judgment of the Nairobi Court of Appeal turned on complicated points of law, it would appear that the success of the appeals depended not on a mere technicality but on the failure of the Crown to discharge fully the onus of proof which the law placed upon it.
  90. 90 In these circumstances, noting that the accused had served their full sentences less remission pending their appeal, the Committee recommends the Governing Body to draw the attention of the Government to the fact that the arrest and detention of trade unionists concerning whom no grounds for conviction are subsequently found is liable to involve restrictions of trade union rights and that, in the case of the Aden T.U.C officers, Mr. Al Asnag and Mr. Hambala, the fact that they had served their sentences before their convictions were quashed must of necessity have prevented them from discharging their trade union duties and have constituted an interference with the right of their organisation to organise its administration and activities in accordance with the guarantee laid down in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been declared applicable, without modification, to Aden.
  91. 91 There is no indication that any kind of compensation for arrest and detention is available to the persons whose convictions have been quashed. The Committee has been called upon in the past to express a view on the granting of compensation, but in different circumstances from those of the present case. In Case No. 31 relating to the United Kingdom (Nigeria), in which certain persons had been killed and others wounded when the police opened fire on a large crowd of miners, it was contended that compensation had been paid but that the sum was not sufficient. The Committee expressed the view in that case that this aspect of the matter was not appropriate for consideration by the Fact-Finding and Conciliation Commission on Freedom of Association. In Case No. 156 relating to France (Algeria), with reference to allegations concerning the detention, torture and death of Mr. Aïssat Idir, General Secretary of the General Union of Algerian Workers, who had been held in detention after his acquittal on certain charges by the courts, the Governing Body, on the recommendation of the Committee, decided to request the French Government to furnish information as to whether, in the circumstances of the case, it was intended to provide for any compensation to the dependants and relatives of Mr. Aïssat Idir. Those cases, however, were not related to the serving of a prison sentence prior to the sentence being quashed by a higher court, as in the present case. The question of possible compensation in a case of this kind is one which clearly presents difficulties unless there is some clear proof of improper motive, gross negligence or grave impropriety of procedure, but there may be serious hardship if there is no possibility of such compensation, perhaps as a matter of grace in appropriate cases. While it does not feel that it is in a position to make any formal recommendation on the matter, the Committee draws attention to this aspect of cases of this nature.
• Allegations relating to the Suppression of a Trade Union Newspaper
  92. 92 These allegations, considered in paragraphs 170 to 176 of the Committee's 76th Report, relate to the suppression of the Aden T.U.C newspaper, Al Ommah At its meeting in June 1964 the Committee had before it a communication from the Government dated 11 November 1963, but noted that this added no new information to the general statement in its earlier reply that the paper had been suppressed for publishing subversive or seditious material, which apparently had not led to the prosecution of the editors of the newspaper. The Committee also observed that the Government had not commented on the allegation that the revocation of a newspaper's licence was entirely within the discretion of the public authority, without the right of appeal to a court of law, an allegation which, if it were well founded, would appear to raise a question as to compatibility with the right of an organisation to organise its activities without interference on the part of the public authorities, pursuant to Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which had been declared applicable, without modification, to Aden.
  93. 93 In these circumstances the Committee requested the Government to furnish fuller information on the aspects of the matter referred to in the preceding paragraph. As the Government has not yet furnished this information, the Committee requests it to be good enough to do so as early as possible.
• Allegations relating to the Banning of Public Meetings, Gatherings and Demonstrations
  94. 94 In its communication dated 13 June 1963 the Aden T.U.C alleges that all public meetings, gatherings and peaceful demonstrations are banned, that Government Notice No. 21 of 1963 prohibits the exhibition of symbols, placards or pictures on any building, public or private, and that the police have removed flags, pictures and other symbols from trade union buildings.
  95. 95 In its communication dated 6 November 1964 the Government states that the measures contained in Government Notice No. 21 were of general application and not directed specifically at trade union activities and were not applied against trade unions to their disadvantage compared with other organisations. The Government does not, however, comment on the allegations that all public meetings, gatherings and demonstrations are banned and that the police have removed flags, pictures and other symbols from trade union buildings. The Committee, therefore, requests the Government to be good enough to furnish its observations on these aspects of the allegations.
• Allegations relating to Non-Recognition of Trade Union Rights in the States of the Federation of South Arabia
  96. 96 In its communication dated 6 April 1963 the Aden T.U.C alleged that in the states of the Federation other than Aden trade unions were illegal. It was alleged that the Aden Teachers' Union, recognised for the last seven years, was no longer recognised by the Federal Minister of Education because education concerned the whole Federation and not just the state of Aden. Since the formation of the Federation, said the complainants, other existing unions, as well as proposed new ones, were no longer recognised. The complainants added that, in Abyan state, employees who asked for a revision of wages had been arrested.
  97. 97 In its communication dated 11 November 1963 the Government said that under the Constitution of the Federation labour matters were the responsibility of the individual states. In the states other than Aden life depended on agriculture and there had been no demand for the formation of trade unions. " In fact ", said the Government, " there is no trade union organisation in these states but it would be a misinterpretation to claim that trade unions are illegal in these states ".
  98. 98 The Aden Teachers' Union is a registered union. In the past it had not sought recognition as a body with which the Aden Government, as an employer, should negotiate, although it had held informal discussions with the Education Department. On 6 February 1962 it applied for formal recognition and was requested to supply details of its Constitution and membership. It had not replied to this request, but if it did reply, stated the Government, further consideration would be given to the question of recognition.
  99. 99 When it considered these allegations at its meeting in June 1964 the Committee noted that, as regards the allegation that trade unions were illegal in the states of the Federation other than Aden, the Government said that " it would be a misinterpretation to claim that trade unions are illegal in these states ". The Committee therefore requested the Government to state " whether it would be correct to assume from this statement that workers in the states in question are legally entitled to form and join trade unions and carry on trade union activities if they wish to do so " and also asked the Government to furnish its observations on the allegation that employees in Abyan state who asked for a revision of wages were arrested.
  100. 100 These requests for information and observations were conveyed to the Government by a letter dated 18 June 1964, and a further request was addressed to the Government on 21 August 1964. As the information and observations in question have still not been received the Committee requests the Government to be good enough to furnish them as early as possible.
• Allegations relating to the Employment (Registration and Control of Employment) Bill
  101. 101 These allegations were dealt with by the Committee, at its meeting in June 1964, in paragraphs 183 to 196 of its 76th Report. In particular, in view of certain of the provisions of the Bill, the Committee drew the attention of the Government to the guarantees and principles embodied in Articles 1 and 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and Article 3 of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), both of which have been declared applicable, without modification, to Aden. The Committee noted also that it appeared from the text of the proposed Bill that, if it were to be enacted in its present form, access to employment in general and to particular employments would depend on a worker being registered and that a wide discretion would be accorded to the registering authority when deciding to grant or refuse registration. The Committee pointed out that it had drawn attention in the past to the fact that such provisions may tend to prevent the negotiation by collective agreement of better terms and conditions, including terms and conditions governing access to particular employments, and thereby to infringe the rights of the workers concerned to bargain collectively and to promote and improve their working conditions which are generally regarded as essential elements of freedom of association.
  102. 102 The Committee, therefore, while taking note of the Government's statement in its communication dated 16 March 1964 that the Aden T.U.C would be able to express its views through the Aden Joint Advisory Council and that these views would be given full consideration by the Government of Aden, drew the attention of the Government of the United Kingdom to the importance which it attached to the observance of the guarantees and principles referred to in the preceding paragraph and said that it trusted that due regard would be had to their implementation in the process of enacting the Bill in question. Subject to these observations the Committee decided to adjourn further examination of this aspect of the case and to request the Government to be good enough to keep it informed as to further developments in this connection.
  103. 103 In its communication dated 6 November 1964 the Government said that the Committee's comments relating to the Bill had been brought to the notice of the Government of Aden and that the Committee would be kept informed of further developments.
  104. 104 The Committee therefore requests the Government to be good enough to inform it in due course of any further developments in connection with the Employment (Registration and Control of Employment) Bill.

The Committee's recommendations

1. 105. In all the circumstances the Committee recommends the Governing Body:
   • (a) to draw the attention of the Government to the fact that the arrest and detention of trade unionists concerning whom no grounds for conviction are subsequently found is liable to involve restrictions of trade union rights, and to observe that, in the case of Mr. Al Asnag, General Secretary of the Aden T.U.C, and his colleague Mr. Hambala, the fact that they served their sentences, less remission, before their convictions were quashed must of necessity have prevented them from discharging their trade union duties and have constituted an interference with the right of their organisation to organise its administration and activities, in accordance with the guarantee laid down in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been declared applicable, without modification, to Aden;
   • (b) to take note of the present interim report of the Committee with regard to the remaining allegations, it being understood that the Committee will report further thereon to the Governing Body when it has received additional information and observations which it has decided to request the Government to be good enough to furnish.