Rapport définitif - Rapport No. 137, 1973

1. 69. The Committee examined this case at its March 1972 Session, when it submitted to the Governing Body a report, contained in its 130th Report, in which it recommended the Governing Body, in accordance with established procedure, to examine this report at its 186th Session (2-3 June 1972). However, at its June 1972 Session, the Governing Body decided to postpone its examination of the case since a communication, dated 25 January 1972, had been received from the complainant organisation containing further information on the matter, and since another communication had been received from the World Confederation of Labour, requesting that the case be brought once more before the Committee.
2. 70. The new communication from the CLAT was transmitted to the Government, which furnished its observations on 1 February 1973.
3. 71. Colombia has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 72. The original complaint from the CLAT was made in a telegram dated 24 November 1971. The telegram was transmitted to the Government, which submitted its observations in a communication dated 6 December 1971, confirmed by a communication dated 18 January 1972.
2. 73. The complainants had alleged that the Government of Colombia "categorically prohibited" the holding of the Sixth Congress of the CLASC in Colombia and requested the ILO to intervene to clarify the attitude of the Colombian Government, which constituted "a serious threat to the rights of the workers".
3. 74. In its reply, the Government maintained that it had at no time refused the CLASC permission to meet in Bogotá. It explained that it was not possible to meet the request for authorisation to hold the Congress, the request having been made by an organisation - the General Confederation of Labour - which was not entitled to make it since it dial not enjoy legal personality. The Government went on to say that, in order to overcome this legal obstacle, it had supported the suggestion made by the President of the General Confederation of Labour that the Congress should be held under the auspices of the Trade Union Movement of Antioquia; this suggestion, however, was not taken up. Finally, the Government stated that it was not in a position to grant the considerable financial assistance requested to organise the Congress, partly because it had insufficient budgetary funds for this purpose and partly because it was impossible to make budgetary transfers when the General Confederation of Labour was not a legally recognised organisation.
4. 75. With its reply the Government enclosed the text of a communication sent from the Minister of Labour to Mr. Jairo Gutiérrez, President of the General Confederation of Labour (and, in his capacity as President of the Sixth CLASC Congress, co-signatory of the complaint).
5. 76. In this communication, the Minister states the following: "In your capacity as President of the trade union organisation known as the General Confederation of Labour, you inform us that the 'Sixth Continental Congress of Workers of the Latin American Federation of Christian Trade Unions (CLASC) will be held in Bogota from 21 to 27 November next. In your communication ... you add that the organisation of this congress would cost approximately 4 million Colombian pesos, which is why, on behalf of the General Confederation of Labour, you request the President of the Republic to examine the possibility of giving you immediate financial assistance (1 million pesos) for the said international congress. In making this request for financial assistance, you write: Realising, as we do, the financial difficulties encountered by ministries at the end of each financial year, we respectfully request you to authorise a transfer if your own Ministry has no available credits'."
6. 77. "In reply to your request" the minister of Labour goes on "I would point out that the Head of the Departmental Division for Labour and Social Security of Antioquia ... sent to the office of the Chief of the Collective Relations Division of this ministry documentation concerning the formation of a third-degree trade union organisation known as the General Confederation of Labour, with headquarters in Bogotá, and active throughout the country. The said documentation was studied by the Trade Union Regulations and Registration Section of the Collective Labour Relations Division of this Ministry and as a result of this study a number of irregularities came to light which prevented the continuation of the procedure provided for in Chapter III of Title I of the Labour Code. In view of these irregularities, the Head of the Trade Union Regulations and Registration Section of this ministry, after making a careful study in accordance with the provisions of the Labour code, drew up the following memorandum on the matter: the documentation in question is to be returned through the Departmental Division for Labour and Social Security of Antioquia so that the persons concerned may correct the errors that have been noted in the matter from the legal point of view."
7. 78. "The above explanation" the Minister continues necessarily leads to the conclusion that the General Confederation of Labour is an organisation that is in the process of applying for recognition of legal personality, which means that it does not enjoy all the rights conferred by law on legally recognised associations of workers. Consequently, in accordance with section 372 of the Labour code, until the administrative document recognising the legal personality and approving the statutes of the organisation has been drawn up, the latter cannot act as an organisation of workers or carry out the corresponding functions or exercise the rights accorded to a workers' association."
8. 79. "Moreover" the Minister's communication goes on "section 2 of Decree No. 35 of 20 January 1956, which replaced section 5 of Executive Decree No. 2655 of 8 September 1954, provides that in, order for one or more Confederations to convene a trade union congress, the Confederation (or Confederations) must be functioning legally and normally at the time, a requirement which, as already stated, is not yet met by the General Confederation of Labour. From the foregoing it follows that, for the time being, the General Confederation of Labour is not legally entitled to promote, organise or hold a congress on the scale planned since it is not yet a third-degree trade union organisation recognised as such by the national Government, and representing part of the Colombian working class."
9. 80. The communication from the Minister goes on in the following terms: "As regards the request for financial assistance to organise the international trade union congress as planned, our administration, despite its obligation (stipulated in section 428 of the Labour Code) to promote the holding of trade union congresses, deems it advisable, in accordance with the appropriate regulations, to inform you that it is not in a position to supply the sum requested since, apart from not having such an amount available under the budget, it could not legally arrange for a transfer of funds to promote a congress administered or organised by a body which, since it is now in the process of being constituted, lacks the legal personality which would be essential to justify a payment for which no provision had been made in the national budget."
10. 81. "Nevertheless" the minister's communication concludes "despite the legal and financial obstacles mentioned in the preceding paragraphs, I take this opportunity to state that the national Government would be perfectly willing for the international trade union meeting that has been planned to be held under the direct responsibility of the Trade Union Action Movement of Antioquia, as you so rightly suggested in your message of 2 October 1971. In this way, the country would be the scene of a trade union congress which, by the nature of its participants, their representative character and the variety of regions from which they would come, would be a milestone in the history of Colombian trade unionism; it would correspond exactly with one of the essential principles of the social policy embarked upon by the national Government, which is to promote the exercise of the Constitutional right of association and, consequently, the exercise of the powers which our legislation confers on the trade union organisations of the Republic with a view to ensuring the maintenance of social peace as the foundation of the nation's progress."
11. 82. When it considered the information at its disposal, at its March 1972 Session, the Committee deduced that the request to hold the Sixth CLASC Congress in Bogotá had been made by a national Colombian organisation which was in the process of being constituted and which, consequently, did not at that time enjoy legal personality. Under Colombian law, in order for a Confederation to organise a congress, it must at the time of convening the congress be functioning "legally and normally". The Committee pointed out that the General Confederation of Labour appeared to have been aware of this legal obstacle that prevented it from organising the congress itself since - as the Government stated - it had suggested that the congress should be organised under the auspices of the Trade Union Action Movement of Antioquia which, unlike the Confederation, enjoyed legal personality. The Committee also indicated that, far from objecting to this proposal the Government had appeared to be wholeheartedly in favour of it and that it was not known why this solution was not finally adopted.
12. 83. In view of the foregoing, the Committee considered that it had not been established that the holding of the Sixth Congress of the CLASC in Bogotá had been forbidden by the Colombian authorities, and recommended the Governing Body to decide that the case called for no further examination on its part.
13. 84. As indicated above, further information having been received, the Governing Body decided to postpone its examination of the case.
14. 85. In its communication of 25 March 1972, the CLAT sends a detailed account of the events, which is summarised hereafter. More than 100 unions, enjoying legal personality and affiliated to five regional and national federations (likewise enjoying legal status) supported the holding of the Sixth Congress of the Latin American: Federation of Christian Trade Unions in Bogotá in November 1971, as had been decided in October 1970 by the Twelfth Latin American Council of Workers. Other large Colombian trade unions that are not members of the CLASC were also in favour of the congress being held. On 1 May 1971 five trade union federations with legal personality and seven regional trade union Committees, as well as 100 unions, formed the General Confederation of Labour, which became a member of the World Confederation of Labour and of the CLASC. The General Confederation of Labour (CGT), together with other trade union organisations, set up fifteen working parties to make preparations for the Sixth Congress under instructions from the organising Committee of the CLASC. Between 11 and 15 August 1971 a CLASC delegation, accompanied by Jairo Gutiérrez, President of the CGT went to see various Colombian authorities to inform them of the decision to hold the Sixth CLASC Congress in Colombia, to find out what legal formalities had to be complied with and to request the Government to make the appropriate facilities available to them.
15. 86. The complainants go on to say that they had received a telegram stating that the President of the Republic had granted an audience to the delegation which was confirmed twenty-four hours before the appointed time. However, when the members of the delegation presented themselves for the appointment, they were informed that the President could not receive them for serious reasons of State. They were able to see the President's General Secretary, the Minister of Labour, the Vice-Minister of Labour and the General Secretary and Acting Minister for Foreign Affairs, in the absence of the Minister. All these persons stated that the Government could make all the appropriate facilities available for the holding of the Congress. One month later, on 27 September 1971, at the insistence of the CGT, the President's General Secretary sent the following cable: "What the Government can and will do is to afford you every guarantee for the meeting of the Sixth CLASC Congress, which must naturally take place in strict conformity with the law."
16. 87. At the same time, the complainants continue, the General Secretary and Acting Minister for Foreign Affairs, in the course of a telephone conversation with the President of the CGT, informed the latter that he had issued instructions for the visas required by the delegates of certain countries to enter Colombia to be granted. Subsequently, on 7 October 1971, the President of the CGT was informed that instructions had been given to the Bogota Customs Administration to authorise entry of the documents, books, etc. to be distributed among participants at the Congress, once they had been duly checked and evaluated. The Chairman was required to undertake to supply the Customs, after the Congress, with a signed statement to the effect that the material in question had in fact been distributed to the participants.
17. 88. The complainants state that the organising Committee for the Congress, examining the cable from the President's General Secretary and observing that there was a state of emergency in Colombia (making it impossible for meetings to be held without prior permission from the military authorities), realised that although they had been offered guarantees, in fact the laws in force prevented the holding of the Congress. According to the complainants, despite the fact that the Acting Minister for Foreign Affairs had stated that the visas would be granted, the subordinate officials of his Ministry did not issue them. Furthermore, the complainants maintain that the customs procedures proved more of a hindrance than a help as regards the entry of the documents.
18. 89. Faced with this situation, the complainants continue, in the second week of October a deputation made up of a CLASC leader and Colombian trade union leaders went to see the President's General Secretary, who, instead of receiving them, sent a message to the effect that "the Government was studying the situation". The Chief of the Visa Section of the Ministry of Foreign Affairs stated that he had been given orders not to grant the visas. The deputation requested an interview with the General Secretary and, Acting Minister for Foreign Affairs, who did not wish to receive them and stated that he had already given orders for the visas to be granted. When the members of the deputation insisted further, the General Secretary finally received them and it was then that they were told that the Government had given orders that the Congress was, not to be held. The vice-Minister of Labour informed them that there were obstacles to the holding of the Congress because of pressure from outside. Finally, the President of the CGT and the deputation were personally informed that the Government would not allow the Congress to be held, that foreign delegates could not enter the country and that the law respecting states of emergency would be applied.
19. 90. The complainants conclude by saying that the CGT had never requested permission to organise the Congress, that it had never stated that a meeting of the CGT was at issue, that at all times it had been clearly stated that it was to be a CLASC Congress and that it is totally unjustified to maintain that permission to hold the Congress was refused because the CGT did not enjoy legal status, since the CGT was acting only as an organisation backing the Congress.
20. 91. In its reply respecting this communication from the CLAT, the Government states that the chronological account is presented without proof and takes no account of the legal system of Colombia or anything relating to the national interests. The Government states that it had no wish to refuse permission for the Congress to be held and that the CLASC deputation was received by various authorities. However, attention was drawn to the fact that the Congress was expected to take place in strict accordance with the law. The Government goes on to state that at the time there was a state of emergency in Colombia and that, in accordance with the Constitution and the laws in force, it was the responsibility of the Government to take all necessary measures for the maintenance of law and order. Consequently, the Government could postpone or suspend any meeting, including those of assemblies and councils at departmental or municipal level, if this was deemed necessary in the national interest. The Government did not refuse permission for the Congress to be held but it was considered inadvisable during the state of emergency. During a state of emergency the law makes no exception for trade union meetings and one cannot speak of condemning a government that is acting lawfully in considering that it must prohibit a meeting during a state of emergency.
21. 92. The Government concludes by saying that freedom of association and trade union rights have not been trampled underfoot. The interests of law and order come first among the Government's priorities. "When the Constitution provides that there are limits to the right of assembly during a state of emergency, it is not because Colombia alone has decided to establish this system; it is a situation encountered in all countries governed by laws and other legal institutions."

B. B. The Committee's conclusions

1. 93. In view of this fresh information, the Committee observes that the steps taken in preparing for the Sixth Congress of the CLASC appear to have met with varying success, alternating from support by various national authorities to the final ban on the Congress. Initially the representatives of the CLASC and the President of the CLAT were received by the authorities, who assured them that the Government would facilitate the holding of the Congress. Difficulties appear to have arisen from October 1971 onwards, particularly as concerns the granting of visas to foreign delegates and with regard to the CGT because of its lack of legal status. Finally, the holding of the Congress was banned. From the information supplied by the Government it now appears that at one time the latter was in favour of the Congress, although it had not agreed to this being organised by the CGT (because of the latter's lack of legal status); however in its latest communication the Government states that the Congress was banned since it was considered inadvisable to hold it during a state of emergency. Consequently, although the Congress would have been organised under the auspices of another organisation (with legal status), it could not have been held because of a decision taken by the authorities as a result of the state of emergency.
2. 94. The Committee has stated on several occasions that measures of a purely political nature, such as a state of emergency, are matters which are outside the Committee's terms of reference except in so far as they may have an effect on trade union rights, In this case the effect has been to restrict the right of assembly of an international trade union organisation. There is no doubt that a government can restrict the right of assembly in general, including that of trade unions, during a state of emergency so as to safeguard law and order. Nevertheless, in the present case, the Government's position as regards the reasons for which the Sixth Congress of the CLASC was banned is not entirely clear. The state of emergency appears to have been declared on 27 February 1971, which means that it was already in force when the first steps were taken with a view to the holding of the Congress; it was, however, given as the reason for banning the Congress only at the last minute, when little time was left, in November 1971. Another matter that is not very clear is why the CLASC persisted in its efforts concerning the holding of the Congress in Colombia when it knew that a state of emergency was in force.
3. 95. As the Committee has stated in a previous case, trade union meetings of an international nature may give rise to special problems, not only because of the nationality of the participants but also in connection with the international policy and commitments of the country in which the meeting is to take place. In this connection the government of a particular country might consider it necessary to adopt restrictive measures on the grounds of certain special circumstances prevailing at a particular time. Such measures might be justified in exceptional cases, in view of specific situations and provided they conformed to the laws of the country. However, it should never be possible to apply measures of a general nature against particular trade union organisations unless, in each case, sufficient grounds existed to justify the government decision - such as dangers that might arise in the field of the international relations of a State or public safety and order. Otherwise the right of assembly, the exercise of which by international organisations should also be recognised, would be seriously restricted.