Rapport définitif - Rapport No. 121, 1971

1. 6. The Committee has previously examined this case at meetings held in February and May 1970. On the first occasion, the Committee decided to defer its examination of the substance of the complaint as it was still awaiting the observations of the Government. On the second occasion, after the complainants had written a letter withdrawing their complaint and the Government, apprised of the complainants' decision, had informed the ILO that, under these circumstances, it seemed pointless to forward any observations on the substance, the Committee decided to request the Director-General to ask the complainants to give a full account of the reasons behind their letter of withdrawal.
2. 7. Malaysia has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. A. The complainants' allegations

1. 8. In the complaint signed by the Executive Secretary of the Union, it was alleged that sweeping stringent changes to existing labour laws relating to public servants in trade unions, industrial relations, trade unions and employment were promulgated in four separate sets of essential regulations under the Emergency (Essential Powers) Ordinance 1969 on 9 October 1969. It was further alleged that the net effect of the promulgation of these regulations was seriously to restrict the freedom of action of trade unions, and in a manner quite incompatible with generally accepted principles on freedom of association.
2. 9. By a letter dated 13 March 1970 the complainants informed the ILO of their decision " unequivocally and without any reservations " to withdraw the complaint. The decision, it was stated, was taken after very careful study of the Essential Labour Laws and their implications. The complainants, moreover, declared that they had made a serious mistake in lodging a complaint with the ILO in the first place, and that this mistake had occurred as a result of a misunderstanding.
3. 10. By a communication dated 4 April 1970 the Government stated that the complainant Organisation had informed it that the so-called " allegations " were made arising from a misunderstanding within the Union and as such had to be withdrawn. Under these circumstances the Government stated that it considered it pointless to furnish any observations on the case.
4. 11. The Committee has always considered that the withdrawal of a complaint created a situation whose scope should be fully investigated. In this respect, the Committee has expressed the view that the desire shown by a complainant organisation to withdraw its complaint, while constituting a factor to which the greatest attention should be paid, was not in itself sufficient reason for the Committee to cease automatically to proceed with the examination of the complaint. The same position was adopted by the Fact-Finding and Conciliation Commission on Freedom of Association when it dealt with a case concerning Greece in 1966. Both the Fact-Finding and Conciliation Commission and the Committee, acting on the basis of a principle formulated by the Governing Body in 1937, recalled that they were competent to evaluate the reasons put forward to explain the withdrawal of a complaint and to decide whether these appeared sufficiently plausible for it to be concluded that the withdrawal was made in full independence.
5. 12. It was on the basis of these precedents and with the specific purpose of ascertaining whether the decision to withdraw the complaint had been taken in full independence that the Committee, at its meeting in May 1970, instructed the Director-General to request the complainants to furnish detailed information on the reasons for the withdrawal of the complaint.

B. B. The Committee's conclusions

1. 13. By a letter dated 16 June 1970 the complainants replied to the Director-General's request for further information. In this letter, which bears the signature of the President of the Union (Choy Kim Swee), the complainants state that while appreciating the Committee's desire to ascertain whether the decision to withdraw the complaint was taken in full independence, in the interest of the union they have decided not to pursue the matter further. They reiterate their desire to withdraw the complaint " which was made as a result of a misunderstanding ". Furthermore, they express the view that " any laws enacted by a country are internal matters and that outside bodies have no right to interfere in them ".
2. 14. With regard to this latter statement, it would seem appropriate to point out that while national laws fall primarily within the competence of the authorities of the country concerned, they are also, in the case of member States of the ILO, subject to examination by the competent bodies of the Organisation when they relate to matters involving international obligations for the country concerned or internationally accepted standards. It should be recalled, in this connection, that the procedure for the examination by the Committee of complaints concerning alleged violations of trade union rights was established by the Governing Body of the ILO to strengthen the protection of these rights in conformity with International Labour standards. The essential object of this procedure is to permit an examination of complainants' allegations in the light of all relevant information on the complaint (governments' observations, national law and practice, etc.) with a view to determining whether or not the complaint in question evidences a failure to conform to internationally accepted standards on freedom of association. Moreover, the competence of the Committee does not only extend to cases involving countries which have ratified ILO Conventions on freedom of association. In this connection, the Committee has stated that although a country may not have ratified these Conventions, it was, nevertheless, bound by the more general provisions of the Declaration of Philadelphia, which forms an integral part of the Constitution of the International Labour Organisation. Article 1 of the Constitution, as amended in Montreal in 1946, provides that the Organisation exists for the promotion of the aims and purposes set forth in the Declaration, which recognises " the solemn obligation of the International Labour Organisation to further among the nations of the world programmes which will achieve ... the effective recognition of the right of collective bargaining, the co-operation of management and labour in the continuous improvement of productive efficiency, and the collaboration of workers and employers in the preparation and application of social and economic measures ". Under these circumstances the Committee, as it had done in a number of earlier cases, considered it appropriate that it should, in discharging the responsibility to promote these principles which has been entrusted to it, be guided in its task, among other things, by the provisions relating thereto approved by the Conference and embodied in 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), which afford a standard of comparison when examining particular allegations, more particularly as Members of the Organisation have an obligation under article 19 (5) (e) of the Constitution to report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of their law and practice in regard to matters dealt with in unratified Conventions, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Conventions.