Report in which the committee requests to be kept informed of development - REPORT_NO351, November 2008

1. 990. The complaint is contained in a communication submitted by the National Trade Unions Confederation (NTUC), the Mauritius Labour Congress (MLC) and the Mauritius Trade Union Congress (MTUC) dated 3 December 2007. The MTUC submitted additional information in a communication of 19 December 2007. The International Trade Union Confederation (ITUC) affiliated itself with and provided additional information in support of the complaint in a communication of 1 February 2008.
2. 991. The Government submitted its observations in communications dated 21 May and 11 August 2008.
3. 992. Mauritius has ratified 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).

A. The complainants’ allegations

1. 993. In their communications of 3 and 19 December 2007, the complainants assert that they have always been law-abiding, while remaining active in the pursuit of safeguarding the rights of their members and workers in general. Until recently they have not been impeded in their activities, but the situation has changed dramatically and peaceful marches and demonstrations have become the object of criminal prosecutions against trade union leaders.
2. 994. The complainants state that the Minister of Finance, in his budget speech for the 2006–07 period, announced the closure of the Police Mechanical Workshop (PMW), a government department. The announcement came as a shock to the workshop employees, as there had been no prior mention of the closure or consultation on the issue. A peaceful demonstration was held on 19 June 2006 in support of workers opposed to the closure of the PMW; Toolsyraj Benydin and Radhakrishna Sadien, Secretary-General of the NTUC and President of the MTUC, respectively, participated in the protest. On 19 November 2007, Benydin and Sadien appeared before the Intermediate Court and were charged with the following violations of the Public Gathering Act 1991 (hereafter the PGA) for their participation in the 19 June 2006 protest:
3. (1) Holding a public gathering without giving written notice to the Commissioner of Police.
4. (2) Holding a public gathering on a day on which the Assembly meets and sits.
5. (3) Failing to comply with a direction given by a police officer.
6. 995. On the same day, a prohibition order was also issued, on the motion of the Prosecutor representing the Government, stipulating that the two men would not be allowed to leave Mauritius without prior authorization from the Supreme Court that is specific to the authorized destination. The relevant procedures additionally require that applications for international travel be submitted three months in advance. According to the complainants, only after the two leaders provided a surety of 25,000 rupees were they allowed to proceed to Ghana to attend the Unification Congress of the African Regional Organisation (AFRO) and the Democratic Organisation of African Workers Trade Unions (DOAWTU), in late November 2007; they were required to surrender their passports to the police upon returning to Mauritius on 1 December 2007.
7. 996. According to the complainants, the PGA contains the following restrictions on freedom of association:
8. (1) Sections 2 and 3 require written notice to the Commissioner of Police not less than seven days before a public meeting or procession takes place; public meetings and processions are defined as comprising 12 or more persons in a public place.
9. (2) Section 4 enables the Commissioner of Police to prevent the gathering on certain grounds and impose certain conditions.
10. (3) Section 5 enables the police to put an end to gatherings on certain grounds.
11. (4) Sections 7 and 8 impose restrictions on permissible places and days for the holding of a gathering.
12. (5) Section 18 imposes penalties of a fine not exceeding 2,000 rupees and imprisonment for a term not exceeding two years.
13. 997. The complainants allege that the requirement of 7 days’ notice under the PGA restricts the holding of spontaneous gatherings on urgent and pressing issues, and that having all gatherings of 12 or more persons fall under the provisions of the PGA – and thereby permitting them to be declared illegal or sanctioned – is a violation of freedom of association. Additionally, the penalties for violations of the PGA are excessively high.
14. 998. The complainants further indicate that additional prosecutions under the PGA are being pursued. Mr Benydin and Mr Sadien were again summoned to court, along with three others for their participation in a 7 June 2006 protest against the closure of the Development Works Corporation (DWC), a parastatal body. The MTUC’s 19 December 2007 communication attaches the following supporting documents:
15. (1) A copy of the PGA.
16. (2) Excerpts of court documents relating to the abovementioned proceedings under the PGA. The said documents include a record of the charges brought against Mr Benydin and Mr Sadien in connection with the 19 June 2006 protest, as well as a record of the charges brought against Mr Benydin and Mr Sadien as well as Deepak Benydin, Reaz Chuttoo and Faizal Aly Beegun in connection with a 7 June 2006 protest against the closure of the DWC.
17. (3) Copies of pages from Mr Sadien’s passport, including a page in which it is indicated, in handwriting, that the said passport is restricted to travel only to certain countries and may not be renewed or extended without prior reference to the passport officer concerned.
18. 999. In its 1 February 2008 communication the ITUC, referring to the 7 June 2006 protest against the closure of the DWC, indicates that Mr Benydin, Mr Sadien and three other trade unionists – Deepak Benydin, Reaz Chuttoo and Faizal Aly Beegun – were summoned to the Intermediate Court on 18 December 2007 and charged with violations of the PGA for their participation in the abovementioned protest. At the time of the protest, in which about 50 trade unionists participated, a trade union delegation was received by the Chief Adviser to the Prime Minister and a series of meetings took place later concerning the DWC’s closure; the participants were given no indication that the demonstration was considered unlawful or would lead to prosecution. The ITUC states that the five trade unionists’ court hearing was scheduled for 29 January 2008 and further indicates that the unions believe, in view of the two pending court cases, that the proceedings are part of a government campaign against the trade union movement and that more legal actions against them are being prepared.
19. 1000. The ITUC adds that in order to leave the country, Mr Benydin and Mr Sadien must seek permission from the authorities and have their travel plans approved. Moreover, their passports were still being retained by the Government, and were only issued to them when they have had to travel abroad; the two leaders have now been able to take copies of their passports, with handwritten inscriptions in them, specifying exactly where and for how long they are allowed to be abroad. Copies of the two men’s passports are attached to the communication, including copies of pages in which it is indicated, in handwriting, that the passports are restricted to travel only to certain countries and may not be renewed or extended without prior reference to the passport officer concerned.

B. The Government’s reply

1. 1001. In its communication of 21 May 2008, the Government states that in a budget speech delivered on 9 June 2006, the Deputy Prime Minister and Minister of Finance announced the Government’s intention to close both the DWC and the PMW. The DWC was considered inefficient and to have outlived its purpose, while the PMW’s closure was intended to put an end to abusive practices in the management of the vehicle fleet of all government departments, in particular the police. According to the Government, it had announced that a humane approach would be taken and that the workers would be supported in the following ways:
2. (1) The Government would fully meet its obligations under the terms of the workers’ employment contracts.
3. (2) A special unit in the Ministry of Labour, Industrial Relations and Employment would assist the workers to shift to productive activity, in line with the Government’s policy of protecting workers instead of jobs.
4. (3) Redeployment of the workers affected.
5. (4) Workers with a pensionable age profile would be pensioned off.
6. (5) Assistance would be made available through the Empowerment Programme for training those who could be placed in other jobs.
7. (6) Those workers wishing to start a business and, in particular, to set up construction companies would be given all necessary support, in line with the Government’s policy of diversifying the base of enterprises eligible for government contracts; additionally those choosing to establish such businesses would be able to obtain DWC equipment on favourable terms.
8. 1002. The Government states that Radhakrishna Sadien, Toolsiraj Benydin, Deepak Benydin, Reaz Chuttoo and Faizal Aly Beegun, without waiting for any consultation to take place, took part in an unlawful gathering on 7 June 2006 to protest the closure of the DWC. Radhakrishna Sadien and Toolsiraj Benydin also took part in another unlawful meeting on 19 June 2006 to protest against the Government’s decision to close the PMW. In both protests the organizers failed to give written notice to the Commissioner of Police, as required under section 3(1) of the PGA; additionally the 19 June 2006 protest fell on a day in which the National Assembly was meeting and therefore required, under section 8(1) of the PGA, the authorization of the Commissioner of Police, which was not received. The Government adds that Mr Sadien also acted in contravention of section 5 of the PGA by failing to comply with the direction of an assistant commissioner of police to put an end to the gathering.
9. 1003. According to the Government, the holding of the two protests was likely to endanger public order and security. The protest concerning the DWC was held in front of the Prime Minister’s Office, along a main street adjacent to the National Assembly; it obstructed the free passage of motor vehicles from 3 p.m. to 4 p.m. and disrupted normal activities in the neighbourhood. The protest over the closure of the PMW was held in front of the main entrance to the police headquarters along a busy street, from 10.55 a.m. to 11.30 a.m., thus causing inconvenience to persons visiting the police headquarters compound.
10. 1004. Following the protests, Radhakrishna Sadien, Toolsiraj Benydin, Deepak Benydin, Reaz Chuttoo and Faizal Aly Beegun were charged with holding a public gathering on 7 June 2006 without giving notice to the Commissioner of Police, in violation of section 3(1) of the PGA. Mr Sadien and Mr T. Benydin were charged with holding a public gathering on a day (19 June 2006) on which the National Assembly met, in violation of section 8(1) of the PGA. In relation to the 19 June 2006 protest, Mr Sadien was also charged with failing to comply with a direction given by a police officer, in breach of section 5 of the PGA.
11. 1005. The charges relating to the 19 June 2006 protest were heard by the Magistrate of the Intermediate Court and, in a judgement delivered on 11 April 2008, Mr Sadien and Mr T. Benydin were found guilty on both counts and each fined 1,000 rupees, plus an additional 500 rupees as costs. In so holding, the magistrate dismissed the submission made by the counsel for the accused, to the effect that sections 3, 5 and 8 of the PGA violate section 13 of the Constitution; Mr Sadien and Mr T. Benydin have appealed the judgement. The case concerning the protest of 7 June 2006 had been postponed to 2 June 2008.
12. 1006. As concerns the withholding of passports, the Government indicates that the five trade unionists were prohibited from leaving the country once charges were brought against them. The prohibition is in line with section 14 of the Passport Regulations (Government Notice No. 22 of 1969), which provides that it shall be lawful for the passport officer to withhold or withdraw the passport of a person against whom criminal proceedings had been instituted. Nevertheless, on the basis of orders from the Intermediate Court, several of the trade unionists were allowed to travel abroad. Mr Sadien travelled to South Africa twice and Singapore once between December 2007 and February 2008; Mr T. Benydin travelled to South Africa, France and the United Kingdom from December 2007 to January 2008. Additionally Mr Beegun visited the United Arab Emirates in December 2007.
13. 1007. The Government states that the purpose of notification as required by section 3(1) of the PGA is to allow the Commissioner of Police to take appropriate measures to prevent public disorder, damage to property, or disruption of life by imposing conditions on the holding of the gathering. The police, however, do not arbitrarily refuse permission to hold public meetings. The Supreme Court, in Bizlall v. Commissioner of Police (a copy of which is attached to the Government’s communication), has stated that “when the commissioner receives a notice of an intended gathering, he must first and foremost start on the premise that the gathering can take place and then proceed to impose conditions which he would invariably do. The general rule would be to allow a gathering to be held. It is only if the imposing of conditions would not suffice to prevent public disorder, damage to property or disruption of the life of the community that the Commissioner would be entitled, and even then on a reasonable belief, to prohibit a gathering”.
14. 1008. The Government indicates that out of 261 applications for public gatherings made in 2007, only seven were not approved. In six of those cases, the application failed to fulfil the requirements of submitting written notice as set out in section 3 of the PGA; in the other case the owner of the proposed location had protested due to the risk of a fire occurring. None of the cases concerned trade union activity. Finally, the Government states that its laws and practices conform to the principles concerning the right to strike, as set out in paragraphs 141 and 143–146 of the Digest of decisions and principles of the Freedom of Association Committee, fifth edition (2006).
15. 1009. In its communication of 11 August 2008, the Government states that the cases of the five trade union leaders pending before the Intermediate Court have been discontinued by the Director of Public Prosecution on 2 June 2008 for humanitarian reasons. Additionally, the Intermediate Court has also ordered the prohibition against departure order to lapse.

C. The Committee’s conclusions

1. 1010. The Committee notes that the present case involves allegations of legislation and repressive measures – including the use of criminal prosecutions – that are intended to prevent trade unionists from exercising their right to participate in strikes and demonstrations. With respect to the legislation, the Committee notes that sections 2 and 3 of the PGA require, for the holding of public gatherings (defined as public meetings or processions comprising 12 or more persons), the submission of written notice to the Commissioner of Police at least seven days before the planned date. Section 4 of the PGA empowers the Commissioner of Police to impose conditions upon or prohibit public gatherings for the purpose of preventing public disorder, damage to property or disruption of the life of the community, while section 5 permits police officers to disperse a gathering on reasonable grounds for believing it to be prejudicial to public safety or public order.
2. 1011. As concerns the right to assembly, the Committee recalls at the outset that workers should enjoy the right to peaceful demonstration to defend their occupational interests. The Committee also recalls, however, that the requirement of administrative permission to hold public meetings and demonstrations is not objectionable per se from the standpoint of the principles of freedom of association. The maintenance of public order is not incompatible with the right to hold demonstrations so long as the authorities responsible for public order reach agreement with the organizers of a demonstration concerning the place where it will be held and the manner in which it will take place. Furthermore, trade unions must conform to the general provisions applicable to all public meetings and must respect the reasonable limits which may be fixed by the authorities to avoid disturbances in public places [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 133, 141 and 144]. In light of the abovementioned principles, and furthermore in view of the Government’s indication that out of 261 applications submitted under the PGA only 7 cases were not approved, none of which concerned trade union activity, the Committee considers that the requirement of written notice and the authorities’ powers to limit public gatherings set out in sections 3 to 6 of the PGA do not contravene freedom of association principles.
3. 1012. The Committee notes that section 7 of the PGA prohibits public gatherings in any public garden within the area of a local authority, without the written permission of the mayor or chairperson, and that section 8 prohibits public gatherings in Port Louis on days on which the Assembly meets (the Assembly is located in Port Louis, the nation’s capital), except with the written permission of the Commissioner of Police. The Committee further notes that section 18 provides for a fine of up to 2,000 rupees and imprisonment for a maximum of two years for violations of the PGA. As concerns the restrictions on the time and place for holding public gatherings, the Committee recalls that while purely political strikes do not fall within the scope of the principles of freedom of association, trade unions should be able to have recourse to protest strikes, in particular where aimed at criticizing a government’s economic and social policies. With regard to the penalty of imprisonment set out in section 18 of the PGA, the Committee recalls that penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike [see Digest, op. cit., paras 529 and 668]. The Committee considers that the requirement of written permission provided for in sections 7 and 8 of the PGA, by the very nature of the gatherings they target – gatherings located in public gardens near local authorities and public gatherings inside the capital on days when the Assembly is in session, respectively – may unduly interfere with the right of trade unions to engage in protest strikes, particularly those intended to express criticism of the Government’s economic and social policies as set out in the abovementioned principle. The Committee also considers that the penalty of imprisonment should only be resorted to when a protest or gathering ceases to be peaceful. It accordingly requests the Government to review the Public Gathering Act, in full consultation with the social partners concerned, with a view to amending sections 7, 8 and 18 so as to ensure that any restrictions on public demonstrations are not such as to impede in practice the legitimate exercise of protest action in relation to the Government’s social and economic policy. In this respect, the Committee recalls that trade unions must conform to the general provisions applicable to all public meetings and must respect the reasonable limits which may be fixed by the authorities to avoid disturbances in public places, while permission to hold public meetings and demonstrations, which is an important trade union right, should not be arbitrarily refused [see Digest, op.cit., paras 142 and 144].
4. 1013. As concerns the prosecutions of the trade unionists under the PGA, the Committee notes that NTUC Secretary-General Toolsyraj Benydin and MTUC President Radhakrishna Sadien participated in a 19 June 2006 demonstration over the closure of the PMW. The two men were summoned to the Intermediate Court on 19 November 2007 and charged, for their participation in the abovementioned protest, with violating sections 3, 5, and 8 of the PGA. They were found guilty of the charges on 11 April 2008 and fined 1,000 rupees, plus an additional 500 rupees as costs; the two men have since appealed the decision. A prohibition order was also issued stipulating that the two men would not be allowed to leave Mauritius without prior authorization from the Supreme Court, on the basis of applications to be submitted three months in advance. The Committee further notes that only after Mr Benydin and Mr Sadien provided a surety of 25,000 rupees were they allowed to proceed to Ghana to attend the Unification Congress of the AFRO and the DOAWTU, in late November 2007, and were also required to surrender their passports to the police upon returning to Mauritius on 1 December 2007. The Committee additionally notes that Mr Benydin and Mr Sadien, along with three other trade unionists – Deepak Benydin, Reaz Chuttoo and Faizal Aly Beegun – were summoned to the Intermediate Court on 18 December 2007, charged with violating sections 3, 5 and 8 of the PGA for their participation in a 7 June 2006 protest against the closure of the DWC, and had their passports confiscated. The complainants indicate in this respect that the protest participants were given no indication that the demonstration was considered unlawful or would lead to prosecution, despite the numerous meetings held with the Government at the time of the protest.
5. 1014. Observing that the prosecutions of the abovementioned individuals commenced in November and December 2007, nearly a year and a half after the concerned parties’ participation in the relevant protests, the Committee considers that the information provided by the complainants leads one to query whether the protest action had any significant impact on public order at the time, or whether the prosecutions were indeed made with the aim of repressing the trade union movement in the country, as alleged by the complainants. While noting with interest that the case against the five trade unionists has since been discontinued, and that the Intermediate Court has ordered the prohibition on travel orders to lapse, the Committee observes that the case against Toolsyraj Benydin and Radhakrishna Sadien, the Secretary-General of the NTUC and President of the MTUC, respectively, is still on appeal. In light of the concerns raised above as to the excessive delay between the time of the protests and the issuing of the summonses, as well as the purely administrative nature of the charges brought, the Committee requests the Government to facilitate a speedy resolution of the case pending on appeal and – in light of the discontinuation of the case against the five trade unionists – raise to the competent authorities the possibility of giving a favourable review to this matter. The Committee expects that the discontinuation of these cases will give rise to a more sound and constructive industrial relations climate in the country.