Effect given to the recommendations of the committee and the Governing Body - REPORT_NO358, November 2010

Effect given to the recommendations of the Committee and the Governing Body

1. 64. The Committee last examined this case, which concerned alleged use of repressive measures against the trade union movement, including criminal prosecutions, in violation of the right to strike and engage in protests, at its November 2008 meeting [see 351st Report, paras 990–1015]. On that occasion, the Committee had requested 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; and requested the Government to facilitate a speedy resolution of the case concerning Toolsyraj Benydin and Radhakrishna Sadien that is pending on appeal and – in light of the discontinuation of the latter case against Benydin, Sadien and three other trade unionists – raise to the competent authorities the possibility of giving a favourable review to this matter.
2. 65. In a communication dated 3 May 2010, the Government indicates that, in its view, sections 7, 8 and 18 of the Public Gathering Act (PGA) require no amendment. The Government indicates that section 7 only provides that permission should be sought from the mayor or chairperson of a local authority to hold a public gathering in a public garden within the area of that local authority, and that the law cannot be amended to allow for a derogation exclusively for trade unions. The local authority has the right of oversight on such premises which are primarily meant for public recreational purposes. With regard to section 8 of the PGA, the Government states that this section provides that the written authorization of the commissioner of police should be sought for the holding of a public gathering in the district of Port Louis on any day on which the National Assembly meets and sits, since the premises of the National Assembly are surrounded by public roads and there is a need to safeguard against the possibility of any external influence being exercised on the members of the Assembly. According to the Government, section 8 does allow for applications to be made and so far there has been no case where any trade union has applied to hold such meeting and the police has turned down the application. As for section 18 of the PGA, the Government indicates that this section provides for the penalty applicable where any person commits an offence under the Act. All citizens being equal under the law, the provisions of the law must be equally applicable to all citizens. One group of citizens or entity cannot therefore be granted derogation from compliance with the law. Finally, the Government informs that the appeal lodged by Mr Benydin and Mr Sadien against the judgement of the intermediate court has been fixed for hearing on 15 November 2010.
3. 66. The Committee notes the Government's indications relating to the provisions of the PGA. It wishes to recall the concerns it raised previously in respect of sections 7 and 8 of the PGA which it considered targeted gatherings of a particular nature, namely gatherings located in public gardens near local authorities and public gatherings inside the capital on days when the Assembly is in session, and were thus likely to apply automatically in case of protest strikes. Despite the current information provided by the Government as to the applications made under section 8, the Committee recalls its concern that the above provisions contained requirements for written permission or authorization as well as restrictions on the time and place for holding public gatherings which had the potential, in practice, of unduly interfering 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. The Committee also observed that section 18 of the PGA provides for a fine of up to 2,000 rupees and imprisonment for a maximum of two years for violations of the PGA. In this regard, it wishes to reiterate 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 of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 668]. Accordingly, the Committee requests the Government once again to take steps to review the Public Gathering Act and its application, in full consultation with the social partners concerned, so as to ensure that sections 7, 8 and 18 are not applied in practice such as to impede the legitimate exercise of protest action in relation to the Government’s social and economic policy. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
4. 67. The Committee notes from the Government’s reply that the appeal lodged by Mr Toolsyraj Benydin and Mr Radhakrishna Sadien has been scheduled for hearing on 15 November 2010. Observing that the appeal proceedings were initiated more than two years ago, the Committee regrets this delay and wishes to recall that justice delayed is justice denied [see Digest, op. cit., para. 105]. The Committee expects that the Government will facilitate a speedy resolution of the case and that the court will issue its ruling without further delay. Moreover, in light of the previously raised concerns to the effect that the prosecution of the two trade unionists commenced nearly one year and a half after the protests, thus leading one to query its rationale (ensuring public order or repressing the trade union movement as contended by the complainants), the Committee once again asks the Government to raise to the competent authorities the possibility of giving a favourable review to this matter. It requests the Government to keep it informed in this regard and to provide it with a copy of the judgement as soon as it is handed down.