Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 299, Junio 1995

136. The Committee examined Cases Nos. 1640 and 1646 at its March 1994 meeting (see 292nd Report, paras. 579-613 and paras. 614-632 respectively, approved by the Governing Body at its 259th Session (March 1994)), at which it drew up interim conclusions.

1. 136. The Committee examined Cases Nos. 1640 and 1646 at its March 1994 meeting (see 292nd Report, paras. 579-613 and paras. 614-632 respectively, approved by the Governing Body at its 259th Session (March 1994)), at which it drew up interim conclusions.
2. 137. The Government subsequently sent new observations on the two complaints in a communication dated 9 March 1995.
3. 138. Morocco has ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), but not the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87).

A. Previous examination of the case

1. 139. After the March 1994 meeting, certain allegations were still outstanding, namely those relating to the arrest and sentencing of Mr. Noubir El Amaoui, General Secretary of the Democratic Confederation of Labour (CDT), the violent death of a worker following police intervention during a demonstration at the Bahia-Baladi enterprise in Rabat, and measures taken by the management of the Autonomous Urban Transport Company of Casablanca (RATC) and local authorities during a strike launched by RATC workers on 17 February 1992, for the purpose of obtaining better conditions of employment. These measures included, in particular, the recruitment by the RATC management of more than 300 new employees, the arbitrary transfer and dismissal of strikers, and the imprisonment and trial of Messrs. Nejmi Abdellatif, Kassih Abdelaziz and Touga Ahmed, militant trade unionists who participated in the strike.
2. 140. At its March 1994 meeting, the Committee had requested the following information from the Government (see 292nd Report of the Committee, paras. 613 and 632 respectively):
   • - The Committee had noted that Mr. Noubir El Amaoui, General Secretary of the CDT had been granted a pardon on the occasion of the national holiday on 9 July 1993, by virtue of which he was released before having completed his prison sentence. Nevertheless, the Committee deplored the severity of the sentence handed down and had drawn the Government's attention to the resolution adopted in 1970 by the International Labour Conference concerning trade union rights and their relation to civil liberties and urged the Government to take all the necessary measures to guarantee respect of this principle and to supply information on the defamatory nature of the statements made by the General Secretary of the CDT.
   • - Noting with regret that the Government had still not replied to the allegations concerning the failure to reinstate civil servants, and the violent intervention of the police leading to one death during a demonstration by workers at the Bahia-Baladi enterprise in Rabat, the Committee had urged the Government to supply the observations requested without delay.
   • - Emphasizing the danger for the free exercise of trade union rights of measures of detention and sentencing of workers' representative for activities performed in the defence of the interests of their members, the Committee had urged the Government to take all measures necessary to ensure that this principle was respected, and to keep it informed of the outcome of the appeal made by Messrs. Nejmi Abdellatif, Kassih Abdelaziz and Touga Ahmed against the verdict of the court of first instance.

B. The Government's reply

1. 141. In its reply dated 9 March 1995, the Government states, with regard to the trial of the General Secretary of the Democratic Confederation of Labour (CDT) that the Kingdom of Morocco guarantees respect for freedom of expression. It emphasizes that article 9 of the Constitution guarantees all forms of freedom of opinion and expression. According to the Government, the exercise of this freedom may be curtailed only by an Act. There is, however, no legislation in Morocco limiting the exercise of this freedom either in terms of freedom of expression and opinion, or freedom of association. In the view of the Government, the reality of daily life in Morocco shows how much freedom of expression citizens enjoy in practice, in press articles reflecting various views and allegiances and through the diverse criticisms and opinions expressed during speeches and statements at public meetings, and trade union, political and occupational meetings. People may freely express themselves without the risk of harassment of any kind, according to the Government. For this reason there is no way that the exercise of freedom of expression could constitute grounds for a prison sentence, unless when exercising this freedom a person brings censure upon himself by targeting defamatory remarks and insults at others, for example.
2. 142. With regard to guarantees of the right to due process, the Government maintains that the basic principles that Morocco tries to uphold, in the framework of a State governed by the rule of law and respect for human rights, include the principle that a person is presumed innocent until proven guilty and that a person may be tried only by an independent legal authority. Judicial procedures have been established to this end in the framework of the Code of Penal Procedure. They are designed to protect the rights of defendants both during legal proceedings and when serving their sentence. The rights underlying these judicial procedures include the right to the assistance of a defence counsel during the trial and the right to appeal to a higher judicial authority than the court which passed judgement.
3. 143. With regard to the right to establish trade unions without previous authorization, the Government once again points out that the dahir (royal decree) of 1957 regarding occupational trade unions freely authorizes the establishment of trade unions of persons engaged in the same occupation or similar or allied occupations simply on the basis of the submission of the trade unions' statutes, with comprehensive lists of their leaders to the offices of the local administrative authority. By virtue of the dahir, many trade unions have been established in all economic sectors, including the public sector. These trade unions are covered by at least eight umbrella trade union confederations, three of which are involved in the activities of the International Labour Organization and the Arab Labour Organization.
4. 144. Finally, the Government asserts that, with regard to the reinstatement of workers who had been dismissed, 141 officials have been reinstated in the public sector following a royal pardon. The administrative situation has therefore been settled in accordance with legislation in force. The competent authorities are anxious to look into the other cases which have not been previously submitted by the trade unions in question to the Special Committee for Dialogue which has been established in this connection. The Government notes that an advisory council has been set up to engage in social dialogue which will help to consolidate consultation between the social partners and, consequently, help to forestall disputes between workers and employers, in particular, the reasons underlying dismissals.
5. 145. With regard to the collective dispute at the RATC, the Government points out, with regard to the exercise of the right to strike, that this right is guaranteed by the Constitution and is exercised in practice. It adds that participation in a strike is not in itself prohibited and punishable by law. On the contrary, it is seen as a legitimate constitutional right which must be exercised in the framework of respect for other constitutional rights such as the right to work.
6. 146. With regard to the protection of workers' representatives, the Government states that the Act in force confers on workers' occupational organizations the right to defend the economic and social interests of their members, and provides for the right of workers' representatives to engage, to this end, in any legal activity that their role as representative may demand, including defending workers' interests. The Government repeats, with particular regard to the judicial situation of Messrs. Nejmi Abdelllatif, Touga Ahmed and Kassih Abdelaziz, that the legal proceedings against them were in no way related to their responsibility for defending workers' interests. According to the Government, the proceedings followed a complaint lodged with the judicial police by their workmate, Mr. Lofy Mostafa. The persons involved themselves admitted to the judicial police that they had made insulting, outrageous, threatening and offensive comments to the complainant when he tried to intervene between them and a bus driver they were trying to force to join the strike. The Government points out, nevertheless, that the court found in favour of extenuating circumstances and sentenced the defendants to a one-month suspended sentence even though the law provides for a minimum sentence of one month's imprisonment for such offences.
7. 147. As regards disciplinary sanctions, the Government states that article 12 of the dahir of 29 October 1962 regarding employees' representation in public works enterprises provides that the person responsible for labour inspections must be notified of any measures to be taken by an enterprise manager against a workers' official or acting delegate with a view to transferring him from one department or one workshop to another, dismissing him or making him redundant. The same procedure applies to former workers' delegates for six months after their term of office has ended if they are to be transferred from their department or workshop, dismissed or made redundant. In cases where a serious mistake has been made, the employer is authorized to decide on the spot whether to dismiss the person responsible, provided that the person responsible for labour inspections is notified immediately, who then must give his informed opinion on the action taken within eight days of notification. The Government asserts that disciplinary measures may, therefore, not be taken against workers' representatives unless the proper legal procedures, designed to provide adequate protection against arbitrary actions against them simply because they are workers' representatives, are applied.

C. The Committee's conclusions

1. 148. The Committee notes the information and observations on the two complaints provided by the Government. It notes, in particular, the Government's assurances with regard to freedom of opinion and expression, the right to the fair administration of justice, the right of workers to establish trade unions without previous authorization, and the guarantees of the right to strike and the right to work.
2. 149. The Committee, nevertheless, regrets that the Government has not replied in detail to the requests it had made in its previous conclusions and that it has confined itself to repeating its general statements on the uninhibited exercise of freedom of expression and opinion by the citizens of Morocco and on guarantees of human rights in judicial procedures.
3. 150. More specifically, with regard to the sentencing of Mr. Noubir El Amaoui, the Committee regrets that the Government has failed to provide information on the defamatory nature of the statement made by the General Secretary of the CDT. Noting that the person concerned has been granted a pardon and freed before completing his sentence, the Committee, nevertheless, impresses on the Government the fact that the right to express opinions through the press or otherwise is an essential aspect of trade union rights. (See Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 172.) In this regard, the Committee recalls that in the resolution concerning trade union rights and their relation to civil liberties adopted at the 54th Session of the International Labour Conference, 1970, it was pointed out that the right of assembly, freedom of opinion and expression and, in particular, freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media constitute civil liberties which are essential for the normal exercise of trade union rights. (See Digest, op. cit., para. 74.)
4. 151. The Committee also regrets that the Government has not replied to allegations concerning the violent death of a worker which took place during a workers' demonstration at the Bahia-Baladi enterprise in Rabat. It recalls that when disorders have occurred involving loss of human life or serious injury, the setting up of an independent judicial inquiry by the government concerned is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible and preventing the repetition of such actions (op. cit., para. 78). It therefore urges the Government to expedite such an inquiry and to keep it informed of the outcome.
5. 152. As regards the exercise of the right to take strike action, the Committee notes, with regard to the procedures relating to the three trade union members specifically mentioned by the complainants, that the Government points out that the sentencing of the persons in question is in no way related to their responsibility for defending workers' interests, but that it followed a complaint lodged by one of their workmates who had tried to intervene between them and a bus driver they were trying to force to join the strike. The Government once again points out that the court found in favour of extenuating circumstances and only gave the persons involved a one-month suspended sentence. The Committee recalls that merely taking part in picketing, and firmly but peaceably inciting other workers to keep away from their workplace, cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries (op. cit., para. 435). With a view to obtaining additional information on whether the activities of the strike pickets were peaceful or not, the Committee calls on the Government to keep it informed of the outcome of the appeal lodged by the trade unionists who have been sentenced by the court of first instance of Casablanca and to provide the text of the court judgement with its reasons as soon as it is handed down.
6. 153. Finally, the Committee notes with interest that the Government has pointed out that following a royal pardon, 141 public officials who had been dismissed have been reinstated. The Committee insists however on the necessity that the Government adopts specific provisions to protect workers against acts of anti-union discrimination. It also requests the Government to keep it informed of any measures to reinstate in their posts public sector workers who, according to the complainants, have been dismissed on the grounds of their legitimate trade union activities that may be taken by the Special Committee for Dialogue which the Government mentioned in its report.