Rapport définitif - Rapport No. 6, 1953

A. Analysis of the Complaints

1. 770. The allegations are contained in the communications of the World Federation of Trade Unions, dated 30 October 1951, the Netherlands Unified T.U, dated 13 November 1951, the Pancyprian Federation of Labour, dated 19 November 1951, the Burma Trade Union Congress, dated 29 November 1951, the Confederation of Brazilian Workers, dated 1 December 1951, the Arab Trade Union Congress (Nazareth), dated 5 December 1951, the Trade Unions International of Workers in the Building, Wood and Buildings Materials Industries (Helsinki), dated 15 December 1951.
2. 771. The same matters are dealt with in general terms in communications from the National Federation of Building, Public Works and Building Materials Workers, dated 15 November 1951, the Central Council of Trade Unions (Prague), dated 6 December 1951, the Textile and Clothing Workers' Trade Union International (Warsaw), dated 14 December 1951 and the International Union of Agricultural and Forestry Workers, dated 17 December 1951.
3. 772. As the complaints deal substantially with the same allegations, they are analysed together. The principal allegations are as follows.
4. 773. The Government of Pakistan has deprived the Pakistan Trade Union Federation of the right to operate as a trade union organisation and is taking action to destroy the trade union movement in Pakistan, having arrested not only leading officials of the Federation, including Mirza Ibrahim, President ; Mohamed Afzal, General Secretary ; and Mohamed Jalil, Assistant Secretary ; but also other trade union leaders and peasants, including A. N. Qasmi, Secretary, Progressive Writers' Association of Pakistan, Ap. Manzar, Secretary, Peasants' Party ; and H. Hussain, Peasants' Party leader ; as well as key workers engaged in ordinary trade union activities, such as recruitment, the holding of trade union meetings and distribution of bills ; and prohibited the Federation from publishing brochures and tracts, while its brochure on " The Trade Union Movement in Pakistan " has been banned.
5. 774. As the arrests have been made under various laws described as " Public Security Acts ", no definite charges have been brought ; defence is impossible and the duration of detention is unlimited. It can thus be said that there is no longer any freedom for trade unions in Pakistan.
6. 775. With the deprivation of their most elementary rights, the standard of living of the workers in Pakistan is constantly falling on account of the continual rise in prices and the consequent reduction of real wages.
7. 776. While the Government of Pakistan is taking this action to destroy the trade union movement, it is flagrantly violating democratic rights by the procedure being followed in the Rawalpindi Conspiracy Case, now being tried by a special tribunal constituted under the Rawalpindi Conspiracy (Special Tribunal) Act of 1951, the provisions of which ignore all accepted legal principles and replace them with a procedure that deprives the accused of every possibility of defence. No fair trial can be guaranteed to persons who are refused the right of preliminary examination, trial by jury and appeal and are liable to be convicted of an offence with which they have not been charged ; when evidence is accepted on hearsay, including statements of deceased persons, and is not recorded verbatim ; and when the hearings are held in secret, as in the trial of this case.
8. 777. While statements have been made in authoritative circles to the effect that there is no connection between this case and the mass arrests of trade union leaders and peasants, it is clear that the Government is having recourse to anti-democratic laws for the purpose of systematically abolishing all opinions and movements in favour of social progress, progressive social legislation and the free operation of trade union organisation, because they are contrary to its policy.
9. 778. The Burma Trade Union Congress further alleges that the Government of Pakistan is giving all-out support to the All-Pakistan Workers' Union, which exists only on paper and is a puppet group set up by the Government in order to destroy the unity of the workers. The Netherlands Unified T.U also alleges that the same support is being given by the Government to an organisation by the name of All-Pakistan Confederation of Labour.

B. Analysis of the Government's Reply

1. 779. The Government of Pakistan submitted the following observations.
2. 780. There has never been any interference whatsoever with the activities and functioning of the Pakistan Trade Union Federation. Mirza Ibrahim and Mohamed Afzal were arrested not for trade union activities but because they were found engaging in activities prejudicial to public safety. Both Mirza Ibrahim, who has since been released, and Mohamed Afzal are members of the regional committee of the Communist Party of West Pakistan. A. N. Qasmi of the All-Pakistan Progressive Writers' Association was arrested for the same reason but he is longer under detention. No person by the name of Mohamed Jalil of the Pakistan Trade Union Federation was ever arrested. No person has been arrested for enrolling workers as members of the P.T.U.F.
3. 781. The allegation concerning the application of the " Public Safety Act " regarding the arrests of trade union workers for their trade union activities is totally false, since no person was ever arrested under said Act for trade union activity.
4. 782. It is not true that the Government has banned the distribution of handbills or pamphlets of the P.T.U.F or proscribed the pamphlet entitled " The Trade Union Movement in Pakistan".
5. 783. From the appendix on cost of living attached to the reply, it would appear that the rise in the cost of living has been almost negligible and that wages have increased proportionately much more.
6. 784. Out of 15 persons accused in the Rawalpindi Conspiracy Case, 11 are ex-officers of the Armed Forces of Pakistan, one is the wife of an officer, one is an editor of a newspaper and one is an Indian communist leader. None of them, except the newspaper editor, is a trade unionist and neither he nor any of the other accused is being tried for trade union activity.
7. 785. The case is being tried by a tribunal of three judges constituted under an Act of the Legislature, who are among the most eminent jurists in the country. The tribunal is presided over by a judge of the Federal Court of Pakistan, who has served as a member of the United Nations Subcommittee on Palestine. The two other judges are on the panel of International Jurists maintained by the United Nations to serve on the Conciliation and Arbitration Board and to act as observers for the settlement of international disputes.
8. 786. The trial is being held in camera for reasons of national security. No country in the world would have an open trial in cases where the charges relate to matters affecting military affairs and the defence of the country.
9. 787. Ordinarily, criminal trials are held before subordinate courts. In such cases, the accused have the right of appeal to the High Court, heard ordinarily by a Bench of two judges. In the present case, the tribunal already consists of three judges drawn from the Federal Court, and the High Court is therefore on a par with the highest judicial authority in the country. Hence, the question of providing for appeal against the decisions of the tribunal does not arise, just as there is no question of appeal against the decisions of the Federal Court itself.
10. 788. The accused have been allowed wide liberty in the choice of their counsel. In fact, every Pakistani lawyer who applied to defend any of the accused was granted the requisite permission to defend the accused on whose behalf he was briefed. The choice of counsel is subject only to the discretion of the Court to the extent that counsel is domiciled in Pakistan and the Court is satisfied that counsel who appears in the case will maintain the secrecy enjoined by the Act. In cases where the accused have not been able to afford lawyers, they have been provided with defence counsel at the cost of the Government. Lawyers of the accused are allowed to bring home papers for study and to take instructions from their clients in gaol.
11. 789. The Government has not made any observations on the allegation that it has set up the All-Pakistan Workers' Union as a puppet group to destroy the unity of the workers or that it is giving support to said organisation or to an organisation by the name of All-Pakistan Confederation of Labour.
12. 790. The Government states that its ratification of 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), shows its anxiety to preserve elementary rights.

791. In the consideration of this case, the Committee has borne in mind the fact that the Government has ratified the Freedom of Association and Protection of the Right to Organise Convention (No. 87), 1948, and the Right to Organise and Collective Bargaining Convention (No. 98), 1949.

1. Allegation concerning the Public Security Law in Relation Particularly to the Pakistan Trade Union Federation
2. 792. While it is alleged that the Pakistan Trade Union Federation is being deprived of the right to operate as a trade union organisation, this claim appears to be part of a larger allegation that the Government is seeking to destroy the trade union movement in Pakistan through the application of its Public Security Law. The allegation is that, since trade union leaders and workers have been arrested under this law without definite charges, defence is impossible and they are liable to an indefinite period of detention so that it can be said there is no longer freedom for trade unions under the said law.
3. 793. It is also alleged that the Government has imposed a ban upon the right of the P.T.U.F to publish brochures and tracts and particularly to distribute its pamphlet entitled " The Trade Union Movement in Pakistan ". While the complainants do not contend that this alleged ban was made under the authority of the Public Security Law, it appears from a reading of the text thereof that the control of publication and information is also provided for therein.
4. 794. In these circumstances, it is necessary to examine in the first place the provisions of the Public Security Law of Pakistan. The law is now embodied in the Security of Pakistan Act of 1952, having been preceded by two Public Safety Ordinances, one promulgated in 1949 and effective for one year, and the other in 1952. The present law, which is to remain in force for three years, appears to be substantially a re-enactment of the provisions of the two Ordinances and legalises the acts done in the exercise of powers under said Ordinances.
5. Purpose of the Act
6. 795. As stated in its preamble, the purpose of the Act is " to provide for special measures to deal with persons acting in a manner prejudicial to the defence, external affairs and security of Pakistan, or the maintenance of supplies and services essential for the community, or for the maintenance of public order ".
7. Detention of Suspected Persons.
8. 796. The provisions of the Act authorising the detention of suspected persons are as follows:
9. 3. (1) The Central Government, if satisfied with respect to any particular person that, with a view to preventing him from acting in a manner prejudicial to the defence or external affairs or the security of Pakistan or any part thereof .... it is necessary to do so, may make an order
10. ......................................................................................................................................................
11. (b) directing that he be detained.
12. Control of Information and Publication
13. 797. The Act also provides for the control of publication and information, and the relevant provisions read in part as follows:
14. 11. (1) Where in the opinion of the Central Government, any document made, printed or published contains any news, report or information likely to endanger the defence or external affairs or security of Pakistan .... it may, by written order
15. (c) prohibit the further publication of such news, report or information and the sale and distribution of such document ;
16. (d) declare such document and every copy or translation thereof or extract therefrom to be forfeited to the Government.
17. 12. (1) The Central Government or any authority empowered by it in this behalf, may if it considers necessary or expedient:
18. (i) by order addressed to a printer, publisher or editor or printers, publishers and editors generally:
19. (b) prohibit or regulate the making or publishing of any document or class of documents, or of any matter relating to a particular subject or class of subject ;
20. (c) prohibit for a specified period the publication of any newspaper, periodical, leaflet or other publication.
21. Reference to Advisory Board and Review of Orders
22. 798. The Act provides for the review of orders by advisory boards as well as for the periodical review thereof by the Government itself. The relevant provisions are as follows
23. 5. (1) The Central Government shall, whenever necessary, constitute one or more Advisory Boards for the purposes of this Act.
24. (2) Every such Board shall consist of two persons, who are or have been or are qualified to be judges of a High Court and such persons shall be appointed by the Central Government.
25. 6. In every case where a detention order has been made under clause (b) of subsection (1) of section 3, and where before the commencement of this Act an order has been made in respect of any person under clause (b) of subsection (1) of section 3 of the Pakistan Public Safety Ordinance, 1952, the authority making the order shall, within one month of the date of detention, communicate to the person affected thereby the grounds on which the order has been made to enable him to make if he wishes a representation in writing against the order, and it shall be the duty of such authority to inform such person of his right of making such representation and to afford him the earliest opportunity to do so:
26. Provided that nothing in this section shall require the authority to disclose facts which it considers to be against public interest to disclose.
27. 7. In every case where a detention order has been made, or where an order has been passed under section 11 or 12, the authority making the order shall, within three months of the issue of the order, place before the Advisory Board constituted by the Government ... the grounds on which the order has been made and the representation, if any, made by the person or persons affected by it.
28. 8. (1) The Advisory Board shall, after considering the materials placed before it and, if necessary, after calling for such further information from the Government or from any person concerned or affected, as it may deem necessary, submit its report to the Central Government.
29. (2) The Report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the passing of the order....
30. (3) Any person against whom an order under clause (b) of subsection (1) of section 3 or under section 11 or 12 has been made or is affected by such an order, shall not be required or permitted to attend in person or to appear by any legal representative before the Advisory Board, or to produce any witnesses before the Advisory Board.
31. (4) On receipt of the report of the Advisory Board, the Central Government shall consider the same and pass such order thereon as appears to the Central Government just and proper:
32. Provided that the Central Government shall review all such orders every six months from the date of the order, unless revoked earlier, and shall, in the case of an order under clause (b) of subsection (1) of section 3, inform the persons affected by the order of the result of the review.
33. Special Provision for Detention in Certain Cases
34. 799. However, under section 9:
35. Any person detained with a view to preventing him from acting in a manner prejudicial to the defence or external affairs or security of Pakistan, or any part thereof may be detained without obtaining the opinion of an Advisory Board for a period not exceeding one year from the date of his detention.
36. 800. It appears that the law is of general application and is not aimed directly at trade unionists or trade union activities. In examining public security measures of this kind, the Committee considers that it is not concerned with the wisdom or necessity of the law as such, but rather only with the question of whether the law is being or may be applied in such a manner as to restrict the exercise of basic trade union rights. In this connection, reference may be made to the provisions of Article 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948, reading as follows:
37. 1. In exercising the rights provided for in this Convention, workers and employers and their respective organisations, like all other persons or organised collectivities, shall respect the law of the land.
38. 2. The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.
39. Allegation concerning the Arrest of Trade Union Leaders and Workers
40. 801. The circumstances of the application of the Public Security Law of Pakistan disclosed in the allegation of the complainants and the Government's observations thereon relate in the first place to the arrest of trade union leaders and workers. It appears from the Government's reply that, among the trade union leaders mentioned in the complaints, none by the name of Mohamed Jalil of the P.T.U.F was ever arrested and that Mirza Ibrahim and A. N. Qasmi have been already released. Only Mohamed Afzal appears to be under detention on the date of the reply.
41. 802. The complainants do not contend that Mohamed Afzal as well as the other trade union leaders already released have been arrested for trade union activities. While the complainants have referred to the arrests of workers engaged in trade union activities, they have not presented evidence of specific instances of such arrests. The Government states that no person has been arrested under the Public Security Law for trade union activity.
42. 803. Under these circumstances, the Committee concludes that the question of these arrests does not involve an actual exercise of trade union rights.
43. 804. Nevertheless, the Committee notes that the Public Security Law of Pakistan allows on its face arrest and detention without trial on formal charges and for a practically unlimited period. In connection with a similar law in India (Case No. 5), it expressed the view that " measures of preventive detention may involve a serious interference with the exercise of trade union rights which it would seem necessary to justify by the existence of a serious emergency and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period ". The Committee emphasised that " it should be the policy " to ensure the right of a detained person " to receive a fair trial at the earliest possible moment ". The Committee considers that the same observations are applicable to the situation in Pakistan under its Public Security Law.
44. Allegation concerning the Ban on the P.T.U.F to Publish and Distribute Literature
45. 805. With respect to the alleged ban upon the P.T.U.F to publish handbills and tracts and to distribute its pamphlet on " The Trade Union Movement in Pakistan ", the Committee notes that the complainants have not presented evidence to support this contention, while the Government has categorically denied that it has imposed such a ban. Under the circumstances, the Committee concludes that this part of the case does not call for further examination.
46. 806. The Committee considers that the publication and distribution of news and information of general or special interest to trade unions and their members constitutes a legitimate trade union activity and that the application of measures for the control of publication and information as provided in sections 11 and 12 of the Security of Pakistan Act of 1952 may involve a serious interference by administrative authorities with such activity. The Committee is of opinion that it should be the policy in such a case to make the exercise of administrative authority subject to judicial review at the earliest possible moment.
47. Allegation concerning the Rawalpindi Conspiracy Case
48. 807. The Committee ventures to point out that the Rawalpindi Conspiracy Case refers to events arising out of the arrest of the Chief of Staff of the Pakistan Army on a charge of military conspiracy.
49. 808. The complainants contend that the procedure established for the trial of the case, by which the accused therein have been allegedly deprived of the rights to preliminary examination, to the safeguards of a regular judicial trial and to appeal, shows that the Government of Pakistan has a purpose or policy of systematically abolishing all opinions and movements in favour of the free operation of trade union organisation by resorting to anti-democratic laws like the law providing for that procedure (Rawalpindi Conspiracy [Special Tribunal] Act, 1951). It is not, however, contended that any of the accused is being tried for trade union activity.
50. 809. The Government has offered explanation for some of the features of the trial considered objectionable by the complainants. It states that it was necessary to hold the trial in camera for reasons of national security as the charges relate to military affairs and national defence ; that no appeal from the decisions of the special tribunal is provided for because it has been so constituted to place it on a par with the highest judicial authority in the land ; and that the accused have otherwise been given facilities to enable them to present an adequate defence.
51. 810. It appears from the Government's reply and from the text of the Act itself, which defines the term " Rawalpindi Conspiracy Case " to mean any case " which arises out of the treasonable conspiracy unearthed in February-March 1951 ", that the case does not concern trade union activities but relates to an isolated episode which had been attended by extraordinary circumstances affecting national security and defence.
52. 811. In these circumstances, the Committee considers that the Rawalpindi Conspiracy Case does not involve any question of the exercise of trade union rights and concludes that this part of the case does not call for further examination.
53. Allegation concerning Support to the All-Pakistan Workers' Union or the All-Pakistan Confederation of Labour
54. 812. The allegation that the Government of Pakistan has set up or is giving support to an organisation by the name of All-Pakistan Workers' Union or All-Pakistan Confederation of Labour is of a general character and has not been supported by evidence of specific acts of the Government to that effect. Although the Government has not made any observations on this allegation, the Committee considers that under the circumstances no further action need be taken thereon.