Rapport définitif - Rapport No. 2, 1952

A. A. The complainants' allegations

• Analysis of the Complaints
  138. 138 The complaints presented are on the whole similar in substance, those submitted directly to the International Labour Organisation as well as those transmitted by the Economic and Social Council. For reasons of convenience, therefore, they will be analysed together.
  139. 139 The chief allegations contained in these complaints are the following:
       • (a) On 23 May 1950 a Decree was issued suppressing the rights of employers' and workers' unions on the fallacious pretext that their leaders were communist or fascist. This Decree provided as follows:
  140. Article 1. Communist and nazi-fascist officials of the unions of salaried and wage-earning employees of the Republic are hereby disqualified from holding office.
• Article 2. Elections shall be held by the salaried and wage-earning employees on the first Sunday in July of the present year.
• Article 3. A trade union official must be a salaried or wage-earning employee actually in employment in the industry or occupation concerned and possess the qualifications laid down in Article 138 of the Decree of 13 August 1943, issuing labour regulations ; the election of non-workers, aliens or naturalised Bolivians or of communists or nazi-fascists shall be null and void.
• Article 4. Application for the declaration of the invalidity of elections because of the ineligibility of the candidate or on other grounds shall be made within a time limit of ten days from the date on which the disqualification was ascertained to the judge of the competent labour court who shall adjudicate in the first instance; appeal may be made within three days to the national labour court.
• The complainants consider that this Decree violates not only the liberties recognised by the Atlantic Charter, the Treaty of Versailles and the International Labour Conference, particularly as expressed in the Declaration of Philadelphia, but also the political Constitution of Bolivia and particularly Article 128 of the latter, which reads as follows:
• Freedom of association is guaranteed and the collective agreement is recognised. Union security clauses as well as the right to strike as a means of defence for the workers according to the provisions of law are equally recognised and workers may not be dismissed, prosecuted or imprisoned for their trade union activities.
  • (b) Unions and their leaders are subjected to repeated and systematic persecution, union activities have been subject to continual repression since December 1946, and this repression on several occasions has been of a sanguinary character. The accusation of the Government according to which common law misdemeanours were committed in certain cases is merely a device on its part designed to make possible the prosecution of union leaders in defiance of Constitutional guarantees (of. Article 128 of the Constitution, cited above) ; the only part taken by the leaders of the miners' unions in these events consisted in preventing the police from causing a greater number of victims in their savagery. That no crimes against the common law were committed is clear from the fact that the prosecution by the judicial authorities of the investigation of union activities was postponed for a long period, this lapse of time being used by the Government to assassinate mercilessly hundreds of workers, without distinction of sex or age. Furthermore, the union leaders who were exiled, as also the prisoners and other prosecuted persons, never enjoyed the privileges granted by Bolivian judicial legislation which gives the prosecuted person full freedom to present the facts which he considers necessary for his defence.
  • (c) Certain union leaders were expelled in express violation of the protective provisions concerning unions.
  • (d) The complainants admit that an Amnesty Law was promulgated on 12 September 1950 whereby a general amnesty was granted to all persons who where prosecuted, exiled or arrested for political reasons. This law read as follows:
• Article 1. A general amnesty is granted to persons prosecuted, exiled, confined or pursued for political offences.
• Article 2. Until the court pronounces its sentence the following events shall not be considered as political offences: the disturbances at Chuspipata, Challacallo and Tipuani (November 1944), at Catavi (May 1949) and Potosi (September 1949), the attachment of fiscal and private funds during the civil war of 1949, as well as the ruthless actions perpetrated in the city of La Paz on 17 and 18 May of the present year.
• The complainants consider, however, that this law merely represents a " cruel - mockery " of the just demands of the Bolivian people and that by this law the Bolivian Government merely seeks to cheat opinion since, in the view of the complainants, Article 2 of the law reduces the application of Article 1 to such an extent that the amnesty in fact would cover only five or ten exiled persons and that on the other hand the proclamation of a State of Emergency a few days after the issuance of the Amnesty Law virtually annulled its effects.
  140. 140 In consequence, the complainants request the sending of an investigating commission and intervention on behalf of certain workers condemned to death by the courts in trials which they consider illegal.
• Analysis of the Replies
  141. 141 Two replies have been received from the Bolivian Government:
       • (a) The first, dated 20 January 1951 sets forth the observations of the Bolivian Government on the complaint submitted directly to the International Labour Organisation by the Bolivian Federation of Miners' Unions which had been transmitted to it by a letter of 19 December 1950.
       • (b) The second, dated 7 January 1952, made by a new Government, set forth the latter's observations on a group of complaints transmitted to the International Labour Organisation by the Economic and Social Council and communicated to the Bolivian Government by a letter of 27 September 1951.
  142. These two replies will be analysed separately.

A. Letter of 20 January 1951

1. 142. In this letter the Government declares that, in order to permit an impartial study of the allegations presented, it submits to the International Labour Organisation the following data:
   • (a) True trade union organisation, that is to say the organisation of those elements among the workers which only seek the improvement of their lot, independently of harmful political activities, is effectively guaranteed and enjoys the support of the public authorities. Article 128 of the Constitution, furthermore, expressly recognises it.
   • (b) On the other hand, activities whose sole object is to overthrow the present democratic Government under the pretext of " freedom of association " must be suppressed by the Government, whose imperative duty it is to secure its own preservation and the preservation of democratic institutions.
   • (c) The general labour law and the Decree applying that law clearly establish the objectives of all trade unions (including, for example, representation of trade unions in collective agreements and in cases of conciliation and arbitration, the establishment of insurance funds, the organisation of cooperatives, etc.) ; they do not state that " trade union " objectives include the propagation of communist doctrine, insurrection against a Government based on popular support or the maintenance of a permanent spirit of revolution among trade union members leading to the commission of abominable crimes. The Bolivian State recognises trade union rights when they are exercised " in accordance with law ", as is expressly provided in Article 128 of the Constitution. Article 137, however, provides that " trade unions are forbidden to deal with other questions than those previously enumerated ".
   • (d) The signatories of the complaints, who improperly call themselves " leaders " of the Bolivian Federation of Miners' Unions, are in reality the heads of revolutionary movements aiming at the overthrow of the Government and not at the protection of the legitimate rights of workers. The " Thesis of Pulacayo ", the charter of the Revolutionary Workers' Party, which was approved by the congress of Bolivian miners, and which is invoked by the signatories, is not at all democratic since it is a synthesis of the most extreme and cynical communist régime. In substantiation of its statement, the Government imputes to certain signatories of the complaint the personal commission of repeated acts of violence (in particular organisation of the "assault groups " in the mines for the purpose of taking forcible possession of the latter, armed attacks on a barracks, mining of communication lines, etc.).
   • (e) The Government also refers to the Amnesty Law of 12 September 1950 stating that if there were exceptions they were made in conformity with the very theory of amnesty which is intended to apply in cases of purely political events but which cannot be applied to ordinary misdemeanours. In such cases it is logical to await the decision of the ordinary courts. This law therefore is not a " cruel mockery ", since it is the Bolivian people themselves who demand the punishment of those who for more than three years have troubled the peace and legally constituted order of the Bolivian Republic.
2. 143. In conclusion, the Government states that there can be no question of violation of trade union rights since the repressing action of the Government has not been directed against those trade union activities which are protected by the State but against revolutionary activities having for sole purpose the overthrow of the Constitutional Government and the establishment of a communist dictatorship. Accordingly, it expresses the hope that the International Labour Organisation, whose prestige and merit it recognises, may judge " how false is the position of the former leaders of the miners who have wished to abuse its good faith ".

B. Letter of 7 January 195

1. 144. In this letter the Bolivian Government sets forth the following considerations:
   • (a) Since May 1951 Bolivia has been governed by a Military Board, and all trade union organisations without exception enjoy full freedom and receive extensive co-operation in the development of their activities which are genuinely concerned with trade union matters. Furthermore, the trade unions and federations have publicly adopted resolutions expressing the satisfaction of the workers with the policy of social justice followed by the authorities at present in power.
   • (b) The Government refers to the letter of 20 January 1951, analysed above, which was sent to the International Labour Organisation by the Government which preceded it, in order to enable the Organisation to " make an impartial study of the attitude of those authorities toward trade union rights ".
   • (c) Measures will be taken to achieve progress in labour legislation in conformity with the recommendations and resolutions of the International Labour Organisation as also with the recommendations of the technical assistance mission of the United Nations headed by Dr. Keenleyside, taking into account the particular conditions obtaining in Bolivia.
   • (d) The ratification by the new Bolivian Government of the instrument amending the Constitution of the International Labour Organisation constitutes further proof of this Government's aspiration towards social justice.

C. C. The Committee's conclusions

1. 145. The present case arises in very special circumstances.
2. 146. The complaints communicated to the Government of Bolivia all have reference to a situation of fact which existed previous to the Constitution of the present Government.
3. 147. The present Government indicates in its letter of 7 January 1952 that henceforward " all the country's trade unions without exception whatsoever enjoy full freedom and receive extensive co-operation in the development of their activities which are genuinely concerned with trade union matters " ; that it has, as a " proof of its aspiration toward social justice ", ratified the instrument amending the Constitution of the International Labour Organisation; and that " measures will be taken to achieve progress in labour legislation for the benefit of the workers of Bolivia by the organisation of Government labour services in accordance with the Recommendations and resolutions of the International Labour Organisation and the Recommendations of the United Nations Technical Assistance Mission led by Dr. Keenleyside, taking into account the particular needs " of the country.
4. 148. The mission led by Dr. Keenleyside to which the letter of the Bolivian Government refers was constituted under the aegis of the United Nations with the co-operation of certain specialised agencies, including the International Labour Organisation. An agreement between the United Nations and the Bolivian Government for the implementation of certain of the Recommendations made by the mission provides for the appointment by the Bolivian Government of a certain number of advisers nominated by the competent international organisations to assist the Government in its programme of social and economic development and reform. Two such advisers have been appointed on the nomination of the International Labour Office. The United Nations and specialised agencies co-operating with the Bolivian Government are represented in Bolivia by a special United Nations Representative for Technical Assistance who is a former Chairman of the Governing Body.
5. 149. Since the Bolivian Government expressly refers in its letter of 7 January 1952 to the letter of 20 January 1951 sent by the preceding Government, it would appear to recognise the continuity which exists before inter national bodies between the preceding and present Governments. Though the latter can obviously not be held responsible for events which took place under its predecessor, it clearly is responsible for any continuing consequences which they may have had since its accession to power.