Rapport définitif - Rapport No. 4, 1953

A. A. The complainants' allegations

• Analysis of the Complaint
  140. 140 The complainants make the four following allegations:
       • (a) According to legislation in force, the Government is empowered to decide whether a trade union is duly registered or not, and has the right to examine the membership lists and to watch over the accounting and administration of trade unions ; the utilisation of trade union funds for political purposes is prohibited and Government employees are deprived of the right to trade union membership.
       • (b) The Pan-Malayan Federation of Trade Unions was dissolved in 1948 on the pretext that it was not a duly registered organisation. Its 11 affiliated associations, although duly registered, were also dissolved.
       • (c) Many trade union leaders were arrested, prosecuted, deported or killed. In particular, in 1946, the trade union leader, Liu Ah Liang, was sentenced to 18 months' imprisonment and was so badly treated in jail that he died there as a result. In the same year, Mr. Lu Chang, president of the Pan-Malayan Federation of Trade Unions, and seven other leaders of the organisation were deported without trial. In 1948, Mr. Tan Kan, president of the Johore Union of Workers in the Rubber Industry, and the secretary of the Mineworkers' Union were shot by the police. In 1949, Mr. Ganapathy, president of the Pan-Malayan Federation of Trade Unions, and his successor, Mr. P. Veerasenan, were both done to death.
       • (d) By virtue of a series of emergency orders, the Government can make arrests and imprison persons without trial. Public meetings must first be authorised, persons suspected of seditious activities may be detained without trial and without being charged with any offence, and concentration camps have been set up. It was recently stated that 300,000 plantation and tin-mine workers were going to be put in these camps.
  141. 141 In consequence of the Government's policy it is claimed that while there were 301 trade unions in June 1948, there were less than 100 in September 1948. While the P.M.F.T.U had 463,000 members in 1948, the Government-sponsored unions now existing have only 40,000. Thus 90 per cent of the workers who formerly belonged to trade unions have no longer the opportunity to exercise their trade union rights.
• Analysis of the Reply and Supplementary Reply
  142. 142 The United Kingdom Government, in a letter of 16 February 1952, replied to these allegations in the following terms. The allegations of the World Federation of Trade Unions have to be considered against the background of the conditions which have existed in the Federation of Malaya since the end of the war. During this period the Federation of Malaya has been engaged in a fight against militant communism, and with a systematic campaign of murder and crime designed to overthrow the Government by force. In these conditions, the normal growth of a healthy trade union movement has necessarily been attended by special difficulties. Immediately after the end of the war in 1945, the communists in Malaya set out to capture the key posts in the trade unions, which they used to organise political agitation and strike action on the slightest pretext. This policy was notably pursued by the Pan-Malayan Federation of Trade Unions and in the State Federations, all of which were under communist control ; and as their efforts were intensified in the following years there was increasing resort to violence and intimidation. During the many strikes that occurred, however, neither the police nor the military were used, nor did they act as strike breakers but confined themselves to the action necessary to maintain public order.
• When, in February 1948, two British trade unionists, Mr. S. S. Awbery, M.P, and Mr. F. W. Dalley, visited Malaya, they reported that the Federations called strikes but paid no strike pay or similar benefits ; framed demands, but carried out no negotiations, preferring to remain in the background and to act as the " power behind the throne ", while pushing forward union leaders whom they interfered with and often intimidated ; and that they claimed to give unions advice and help, but in practice, they left the officers of the affiliated unions to do the negotiations, and then prevented any settlement being made when, as is usually the case, they disagreed with the provisional agreement arrived at.
• The Government was, therefore, faced with a position in which either the trade union movement would be dominated entirely by the Malayan communist party, or special measures had to be taken to encourage the establishment and development of responsible industrial or occupational trade unions, free of the militant communist control and direction which deliberately aimed at the economic disruption of the country through strike action. In May 1948, for example, no less than 178,500 man-days were lost through disputes and stoppages.
  143. 143 Referring more particularly to the first allegation, the Government goes on to state that the Trade Union Law was, accordingly, amended. The enactment of 1940, to which the World Federation of Trade Unions refers, had provided for the registration and supervision of trade unions, to ensure that unions were properly constituted for the principal objects for which they existed, and that their rules and finances conformed to a reasonable standard and afforded a measure of protection for union members against speculation or misappropriation by unscrupulous officials. Regulations made under the law allowed Government employees to join unions which catered for them exclusively. The amendments made to the law in 1948 provided that, with the exception of the secretary, office bearers in trade unions had to be persons with a minimum of three years' experience in the industry concerned, and that no person was eligible to bear office who had been convicted of extortion, intimidation or other serious crimes. The federation of trade unions, otherwise than on an industrial or occupational basis, was prohibited.
  144. 144 The Government then explains the circumstances surrounding the dissolution of the Pan-Malayan Federation of Trade Unions, which forms the subject of the second allegation, stating that the communist-controlled unions made no attempt to comply with the above provisions, despite the fact that repeated advice was given as to how they might bring themselves into conformity with the law. In fact, the communist leaders at this stage decided to embark upon an armed revolutionary movement. The communist officials of the trade unions disappeared, often taking the union funds with them, and went into the jungle as part of the terrorist forces. It was known that of the 289 trade unions on the register at the beginning of 1948, rather less than 100 were free from communist domination or infiltration. By the end of September 1948, most of the communist-controlled unions had ceased to exist, and were removed from the register on this account, or because they had failed to comply with the provisions of the new Ordinance : the bodies dissolved included the Pan-Malayan Federation of Trade Unions and the 11 State Federations. A few unions were dissolved at their own request : two unions exercised their right of appeal which, in each case, was upheld. The result was the reduction of estimated trade union membership in Malaya by more than half, to a figure of approximately 75,500. This indicates the extent to which the communist party had gained control of and exploited the movement. There remained, however, a hard core of independent unions, inspired with genuine trade union sentiment and determined to carry on with the development of a sound and responsible movement : and the Government made plain its intention of encouraging and promoting this development. By the end of 1948, despite the disappearance of the communist organisations, the movement had recovered to the extent of 162 unions on the register, with 25 applications for registration pending.
  145. 145 With regard to the third and fourth allegations the Government states that, in view of the outbreak of terrorism and the armed challenge to orderly government, the Government had in June 1948, declared a state of emergency. The Malayan communist party was banned. Regulations were published, giving wide powers to the Government, and imposing heavy penalties for assisting the bandits, including the death penalty for carrying arms. These powers included the right to order detention, to control movement on the roads, and to disperse assemblies. The power of arrest and search without warrant was also increased. The W.F.T.U refer to a number of communist trade union leaders who were arrested, imprisoned or, in some cases, shot. These men suffered, not because they were trade unionists or because of their trade union activities, but because they resorted to violence and terrorism. Ganapathy, for example, was arrested carrying arms which he attempted to use. He was tried by the courts, found guilty and executed in accordance with the emergency law which makes the death penalty mandatory in such cases. Veerasenan took part with other bandits in an action against security forces during which he was shot. The camps mentioned by the W.F.T.U have been established as places of confinement for persons detained under the emergency regulations against whom there is reasonable evidence of having aided, abetted or consorted with the terrorists. Provision is made under the regulations for appeals against such detention to be heard by Advisory Committees. By the end of December 1951, 7,951 people were detained in the camps. All practicable steps have been taken to secure that the conditions in these camps are satisfactory. In quoting the figure of 300,000 workers in connection with these camps, the W.F.T.U are clearly confusing the detainees mentioned above with the far larger number of residents in remote rural areas of Malaya whom it has been necessary to move to resettlement areas in order to bring them within the orbit of settled administration and protect them from violence and intimidation on the part of the terrorists. This has involved the creation of entirely new communities, with all the necessary public services, to cater for some 440,000 people.
  146. 146 The Government concludes by stating that, since 1948, the struggle against terrorism has continued. The restoration of law and order and the establishment of settled conditions has necessarily been the Government's prime concern, for, without that, the normal development of democratic organisations is rendered extremely difficult. Many positive steps have, however, been taken to foster the growth of a trade union movement working on Constitutional lines and to improve the conditions of living of the workers in general. The Trade Union Adviser's Department in the Federation is specifically concerned with this work. At the end of 1951 there were 197 registered trade unions (including unions for workers employed in Government service) and 30 awaiting registration, with a total membership of 116,000. This compares with an estimated trade union membership of 154,500 in April 1948, when the Pan-Malayan Federation of Trade Unions was in being. In 1950 the Malayan Trade Union Council was formed, and more than 100 registered trade unions, including a number catering for Government-employed workers, are affiliated to it. In November of that year the Council became affiliated to the International Confederation of Free Trade Unions. The fears and uncertainties arising from the emergency have not made the task of the trade union leaders easy. Some have been murdered by the communists, whose methods are typified by the recent threats to workers in Negri Sembilan, that they would be crucified if they refused to take part in strikes designed not to support legitimate grievances but to disrupt the economy of the country to the detriment of all. Despite such handicaps and the difficulties of language and illiteracy which are ever present, the work has gone on, and the progress which has already been made by this growing movement is substantial and commendable.
  147. 147 On examining this reply at its second session in March 1952, the Committee decided to request the United Kingdom Government for further information with respect to the police action in which Mr. Veerasenan, President of the Pan-Malayan Federation of Trade Unions, was killed and the circumstances of his death, and with respect to the judgment or decision of the tribunal which sentenced his predecessor in office, Mr. Ganapathy, to death. The Director-General wrote to the United Kingdom Government on 20 March 1952, requesting this further information, and the Government replied by a letter of 30 April 1952.
  148. 148 The supplementary reply was in the following terms:
• The Committee has asked for further information about the circumstances in which two communist trade union leaders were killed. In considering the further details given below, the Committee is asked to bear in mind the general background to the situation as sketched in the previous comments submitted by the United Kingdom Government. The essential fact is that, in the summer of 1948, the communist leaders decided to embark upon an armed revolutionary movement aiming to overthrow the legitimate Government and directed against the lives and well-being of the population as a whole. The measures taken by the Government to meet this challenge, in fulfilment of its duty towards the people whom it serves, have had the fullest support of leaders of all communities in Malaya. At the outbreak of violence in June 1948, Ganapathy forsook his trade union activities and disappeared into the jungle. He was not seen again until March 1949, when he was encountered by a party of special constables on patrol. When challenged he attempted to use a loaded revolver which he had in his belt. He was arrested and charged under the Emergency Regulations with unlawful possession of arms and ammunition. Under these regulations (which were enacted, as indicated above, to meet an armed threat to orderly Government), the death sentence is mandatory on conviction for carrying arms. Ganapathy was tried in open court in Kuala Lumpur before a judge and two assessors, one of whom was an Indian. Both assessors found him guilty without retiring, and he was sentenced to death. An appeal to the Court of Appeal was rejected. At both hearings he was represented by counsel. It regretted that copies of the judgments are not available. Veerasenan, who had also disappeared at the outbreak of the emergency and joined the terrorists, remained in the jungle until May 1949, when his body was found shot dead after an armed action in Negri Sembilan between a military patrol which came upon a bandit camp and the bandit party of which he was a member. It is again emphasised that these two men suffered not because of their trade union activities but because they took part in a movement which resorted to violence and force of arms, and which during 1949 alone murdered 334 civilians in Malaya, in addition to killing 230 members of the security forces operating against them.

B. B. The Committee's conclusions

1. 149. The Government of the United Kingdom has called attention to the fact that since the end of the war, the Federation of Malaya has been the scene of a " systematic campaign of murders and crime designed to overthrow the Government by force ". The Committee considers that it is against the background of these political conditions that the allegations made by the complainants should be examined.
2. 150. The United Kingdom Government has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947, in respect of the Federation of Malaya.
3. 151. In regard to the allegations relating to registration and supervision of trade unions, the use of union funds for political purposes and the right of association of Government employees, the relevant legislation is Enactment No. 11 of 1940 to Provide for the Registration and Control of Trade Unions, an enactment of the Federated Malay States the application of which throughout the Malayan Union was made effective by Ordinance No. 12 of 1946, and the Amending Ordinances Nos. 9 and 15 of 1948 and No. 20 of 1949.
4. 152. Unions are obliged to register in accordance with this legislation. The application for registration must be signed by seven members of the union and must give particulars as to the names, occupations and addresses of the members making application, the name of the trade union and the address of its head office and the titles, names, ages, addresses and occupations of the officers of the trade union. If the Registrar is satisfied that the union has complied with the provisions in the above enactments and that its objects, Constitution and rules do not conflict with such provisions and are not unlawful and that the union is not likely to be used for unlawful purposes or purposes inconsistent with its objects and rules, he shall register the trade union. If any of the above conditions are not or cease to be fulfilled he can refuse to register the union or cancel its registration. An appeal lies from the Registrar to the Chief Secretary and there is a further right of appeal to the Supreme Court. A trade union failing to apply for registration or whose registration is refused or cancelled becomes an unlawful association and shall be dissolved and its funds disposed of in accordance with its rules.
5. 153. As far as accounting is concerned the legislation lays down the purposes for which union funds may be used, which include the conduct of trade disputes and the prosecution of defence of legal proceedings, but exclude the payment of fines or penalties imposed on any person by a court. The funds may not be used for political purposes. The treasurer of a union on vacating office, and in any case at least once a year, must render a duly audited account of all moneys paid and received. The secretary must furnish to the Registrar annual returns showing all receipts and expenditure and a statement of assets and liabilities, together with the auditor's report.
6. 154. With regard to the administration of trade unions, the main provisions in the legislation are those relating to trade union officers. Two-thirds of the total number of officers of a union must be persons actually engaged or employed in an industry or occupation with which the trade union is connected. All officers other than the secretary and other than the two-thirds mentioned above must be persons who have served a period of three years' engagement or employment in such industry or occupation. The High Commissioner may exempt any particular union from the application of these provisions. It is also laid down that the union rules must make provision for, in particular, the objects of the trade union, the making and amending of rules, the appointment, election and removal of officers, custody and investment of funds, and the manner of dissolution of the union and the consequential disposal of its funds.
7. 155. With regard to the last in the first series of allegations, Government officers and employees may not belong to a trade union unless the High Commissioner by Notification exempts any category of them from this prohibition. In fact, by Notification, Federal No. 1954, in July 1948, all except police and prison officers and members of the armed forces are permitted to join unions catering for them exclusively.
8. 156. The Committee has given special consideration to the provision requiring union officers other than the secretary to be or to have been engaged in the industry or occupation for which the union caters, the provision forbidding a union to use its funds for political purposes and the provision barring Government employees from union membership (at present relaxed by the Notification enabling them to join unions catering for them exclusively). It has come to the conclusion that these points should be considered against the present political background in Malaya and also in the light of the fact that the trade union movement in Malaya is of recent origin. The Government maintains that these laws are intended to ensure that trade unions shall effectively accomplish the principal purpose for which they are set up, that their rules conform to a reasonable standard and that the members are protected against speculation or misappropriation by unscrupulous officials. Having regard to all the circumstances, the Committee, while considering that it may be desirable that certain of these restrictions should be reconsidered at an appropriate time, recommends the Governing Body to decide that that part of the complaint consisting of the first series of allegations does not call for further examination.
9. 157. In regard to the allegation concerning the dissolution of the Pan-Malayan Federation of Trade Unions and of its 11 affiliated organisations, the Government has pointed out that the trade union organisations dominated by the communists have been removed from the register, either because they had ceased to exist or because they had not complied with the conditions prescribed in the Ordinance of 1948. Federations established before the coming into force of the trade union Ordinance of 1946, as amended in 1948, have to request registration within a period of one month but cannot be registered unless the competent authority is satisfied that they have been established in accordance with the provisions contained in those enactments. By the terms of this legislation registered trade unions whose members are engaged in a similar occupation or industry, and not otherwise, may form federations of trade unions. It is clear from the Government's reply that the Pan-Malayan Federation of Trade Unions was dissolved because it had not observed this provision.
10. 158. Having regard to the general situation discussed above, to the recent growth of the trade union movement in Malaya and to the formation of the Malayan Trade Union Council, to which more than 100 registered trade unions are now affiliated, the Committee recommends the Governing Body to decide that this part of the complaint does not call for further examination.
11. 159. With regard to the measures alleged to have been taken against certain trade union leaders, the Government has pointed out, in the original reply supplemented by the further reply of 30 April 1952, that, so far as Mr. Veerasenan is concerned, he was found shot dead after an armed action in the jungle between a military patrol and the group of bandits of which he was a member and, concerning Mr. Ganapathy, that he left his trade union activities in June 1948 and took to the jungle, next being seen in March 1949, when, on being challenged by a police patrol, he attempted to use a loaded revolver and escape. Being arrested, he was charged under the Emergency Regulations with the capital offence of being in unlawful possession of arms and ammunition, found guilty in open court and sentenced to death, his appeal to the Court of Appeal being dismissed. He was represented by counsel in both courts. He was then executed. Having regard to the full details given in this reply and to the state of affairs in Malaya which has given rise to the aforesaid Emergency Regulations, the Committee considers that the facts alleged do not constitute an infringement of the exercise of trade union rights, and recommends the Governing Body to decide that this part of the complaint does not call for further examination.
12. 160. With regard to the allegations relating to emergency regulations and camps, the Committee noted from the Government's reply that these camps have been established as places of confinement for persons detained under the Emergency Regulations against whom there is reasonable evidence of having aided, abetted or consorted with the terrorists and that only 7,951 persons, against whom there was such reasonable evidence, were detained in the camps by December 1951. It considers it highly probable, as the Government suggests, that when the complainants allege a figure of 300,000 they are referring mistakenly to the number of persons moved to resettlement areas for their own protection. The Committee, while recognising that present circumstances in Malaya approximate to a situation of civil war, emphasises the importance which it attaches to all detained persons receiving a fair trial at the earliest possible moment.