Rapport intérimaire - Rapport No. 110, 1969

Cas no 560 (Maroc) - Date de la plainte: 19-JUIL.-68 - Clos

1. 178. This case was previously examined by the Committee at its session in November 1968, when it submitted to the Governing Body an interim report which is to be found in paragraphs 341 to 357 of its 108th Report. This report was adopted by the Governing Body at its 173rd Session (November 1968).

A. A. The complainants' allegations

1. 179. The case is based on allegations to the effect that Mr. Mohammed Abdelkader Awab, a member of the national executive of the Moroccan Federation of Labour and Workers' delegate of Morocco to the 52nd Session of the International Labour Conference (Geneva, June 1968), was arrested for having published, in the Moroccan Federation of Labour newspaper L'Avant-Garde, the text of the speech he had made at a plenary sitting of the Conference. Subsequently, the complainants announced that Mr. Awab had been sentenced on 29 October 1968 to one year's imprisonment.
2. 180. When these allegations came before the Committee at its session in November 1968, together with the observations made on them by the Moroccan Government, the Committee observed that the case appeared to involve the important question of freedom of speech and recalled in this connection that the Declaration of Philadelphia, which is an integral part of the Constitution of the ILO, declares that freedom of expression is " essential to sustained progress ".
3. 181. The Committee also recalled that article 40 of the Constitution of the Organisation provides that delegates to the Conference shall enjoy " such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organisation ".
4. 182. The Committee further recalled that the Convention on the Privileges and Immunities of the Specialised Agencies, to which Morocco is a party, provides, for its part, that " in order to secure for the representatives of Members of the specialised agencies at meetings convened by them complete freedom of speech and complete independence in the discharge of their duties, the immunity from legal process in respect of words spoken or written and all acts done by them in discharging their duties shall continue to be accorded, notwithstanding that the persons concerned are no longer engaged in the discharge of such duties ".
5. 183. The Committee also pointed out that it was established practice for delegates of employers' and workers' organisations at the Conference to deal in their speeches with questions which were of direct or indirect concern to the Organisation, and expressed the view that there would be the risk of the functioning of the Conference being considerably hampered and the freedom of speech of the delegates of employers' and workers' organisations being paralysed if these delegates were under the threat of criminal prosecutions based, directly or indirectly, on the contents of their speeches at the Conference.
6. 184. Lastly, the Committee emphasised that the right of delegates to the Conference to express freely their point of view on questions within the sphere of competence of the Organisation implied that the delegates of employers' and workers' organisations had the right to inform their members in their respective countries of their speeches.
7. 185. Accordingly, at its session in November 1968, the Committee recommended the Governing Body " to express its serious concern at the arrest and sentencing of Mr. Awab, which, according to the allegations, are the result of the speech which he made at the plenary session of the 52nd Session of the Conference (June 1968), these measures appearing to jeopardise freedom of speech for delegates at the Conference, as well as the immunities which they should enjoy in this connection ".
8. 186. Having further noted, at its session in November 1968, that the Government, in its observations, had not made it clear whether Mr. Awab had been prosecuted and sentenced on the basis of the contents of this speech or for the dissemination in Morocco of the speech or of other texts, nor whether the publications in question were of a trade union nature or not, the Committee recommended the Governing Body to request the Government to supply more detailed information in this respect. In accordance with its usual practice, the Committee also recommended the Governing Body to request the Government to furnish the text of the judgment sentencing Mr. Awab and the grounds adduced therein.
9. 187. These recommendations were approved by the Governing Body at its 173rd Session (November 1968).
10. 188. It should be recalled that, during the debate on the matter which took place in the Governing Body at that session, the Workers' Vice-Chairman of the Governing Body, on behalf of his group, made a statement in which, firstly, he deplored the facts of the case from the standpoint both of freedom of association and of the freedom of speech of Conference delegates, and, secondly, he drew attention to the resolution concerning action by the International Labour Organisation in the field of human rights and in particular with respect to freedom of association, adopted by the Conference at its 52nd Session, appealing to the Moroccan Government to consider giving effect to paragraph 4 (g) of that resolution, which called for an amnesty or pardon for all trade unionists under arrest or sentence.
11. 189. By a letter dated 21 November 1968 the Director-General brought to the attention of the Government the conclusions of the Committee, as approved by the Governing Body, to which reference is made in paragraphs 185 and 186 above, together with the request for additional information contained therein. The Director-General also communicated to the Government the text of the statement made in the Governing Body by the Workers' Vice-Chairman, to which reference is made in paragraph 188 above.
12. 190. Since the session of the Committee in November 1968, the International Confederation of Free Trade Unions, by a communication dated 6 November 1968, and the World Confederation of Labour, by a communication dated 20 November 1968, have also become complainants in this case. The allegations they make concern the same events as those referred to previously. The Moroccan Federation of Labour, for its part, by a communication dated 14 November 1968, has supplied further information in substantiation of its complaint. The texts of all three communications were transmitted to the Government as they were received.
13. 191. The Government forwarded to the Office a fresh series of observations by a communication dated 20 January 1969.
14. 192. In this communication the Government begins by stating that the court's decision in the case in question was taken following a complaint originally lodged against person or persons unknown having disseminated in Morocco, by means of printed matter, distributed or sold, statements containing manifestly defamatory accusations against the Moroccan authorities and certain government departments, an offence punishable under the dahir of 15 November 1958, which constitutes the Code of the Press. " It is therefore not because he made a tendentious speech at the International Labour Conference ", the Government declares, " that Mr. Abdelkader Awab was arrested, but on the grounds of acts committed on Moroccan territory which are punishable under the law of the country. "
15. 193. The Government goes on to supply the following details: on 28 June 1968 Mr. Awab disseminated in Morocco a bulletin reproducing at length statements made by him which were defamatory of the Moroccan Government authorities and police and consisting of the following passages, quoted by the Government, which constitute in fact extracts from Mr. Awab's speech at the 52nd Session of the Conference:
    • In Morocco, since 1960, the constant official policy of the Government has been to break the workers' movement by all means, despite national and international law. In recent years we have frequently had to inform the ILO of the action taken by the authorities against the working class. How often from this platform have we informed the Conference of governmental attempts to divide the working class, of bloodthirsty repression (at Larache, 1960, at Youssoufia, 1961, and at Imini, 1961), of criminal attempts against the lives of trade union officers, of the wrecking of our premises and of the collective dismissals of strikers? Flouting the conscience of the world and the many International Labour Conventions which it has ratified, the Government of Morocco deliberately violates the laws relating to trade union rights and freedoms.
    • The period since the 51st Session of the Conference has seen this repression intensified. It has become a system and is, indeed, now the only characteristic of the relations between the authorities and the people. This wave of repression was to be crowned by the arrest and imprisonment of the Secretary-General of the Moroccan Federation of Labour and President of the All-African Trade Union Federation, our comrade Mahjub ben Seddik. This illegal step, aimed through ben Seddik at the Moroccan trade union movement, has led to a wave of discontent and a general strike in Morocco and a movement of international and national solidarity. This movement was accompanied by various complaints made to the ILO.
    • The strike by the Moroccan working class against the arbitrary arrest of the Secretary-General of their organisation, which paralysed the country for four days, was to give the Government a new opportunity to continue its repression on a still greater scale. Mass arrests, collective dismissals, abusive requisitions, the muzzling of the trade union press and all other repressive action following the strike had no other object than to push the workers into illegal ways so as to justify fresh intervention by the police and legalise repression and government intervention in trade union affairs. But the Moroccan workers, aware of their rights, continued their action to secure the release of Mahjub, to defend their organisation threatened by anti-labour governmental policy and for the defence of their acquired rights, which have been threatened by the Government, and for a freedom of expression constantly threatened by the police, which for a year has every week been breaking into trade union premises to destroy the machinery on which our paper, L'Avant-Garde, is printed, thus depriving the working class of its voice.
16. 194. The Government states that " these statements, which, furthermore, constituted an obvious attack on law and order, were also published by the newspaper L'Avant-Garde in its issue dated 6 July 1968 ". " The making and publication of these allegations, " the Government goes on, " the content of which clearly went beyond the type of controversy that can be accepted by the government of a country in which freedom of expression is guaranteed by article 9 of the Constitution and, in particular, by section I of the dahir of 15 November 1958 (constituting the Moroccan Code of the Press) obviously came under the provisions " of certain legal enactments in force, stated by the Government to be the dahir of 28 June 1935 respecting the suppression of unlawful demonstrations and of attempts to undermine the respect due to the authorities, and the dahir of 15 November 1958, constituting the Moroccan Code of the Press.
17. 195. The dahir of 28 June 1935 contains, inter alia, the following provisions:
    • Section 1. Any person who in any place and by any means whatsoever provokes active or passive resistance against the application of laws, decrees, regulations or government orders; or who foments or instigates disturbances or demonstrations; or who commits acts designed to disturb the peace, law and order or security shall be punished by a term of imprisonment of from three to twenty-four months or by a fine of between 120 and 4,800 dirhams, or by both such imprisonment and fine; a prohibition to reside in a given area may also be imposed. Any person who undermines the respect due to the authorities is liable to the same penalties.
    • Section 2. If the person guilty of the offence is a civil servant, agent or employee of a government department, a board or a licensed public service, the penalties may be doubled. Furthermore, he may be prohibited from holding public office for a period of between five and ten years.
18. 196. The dahir of 15 November 1958, for its part, contains the following provisions:
    • Section 44. Any allegation or imputation of an act prejudicial to the honour or reputation of the persons or bodies thus impugned is defamation. Direct publication or reproduction of such allegations or imputations is punishable even if done in a dubitative form or if it refers to a person or body not expressly named but who can be identified from the terms of the speeches, threats, written or printed matter, bills or posters involved. Any offensive expression, term of contempt or abuse which does not involve the imputation of an act is an insult.
    • Section 45. Defamation committed by one of the means described in section 38 against the courts of law, the army, navy or air force, the official bodies or Moroccan government departments will be punished by a term of imprisonment of from one to twelve months or by a fine of between 1,000 and 100,000 dirhams, or by both such imprisonment and fine.
19. 197. It was under these provisions, declares the Government, and in the circumstances recalled above, that the Government lodged a complaint against person or persons unknown through a communication from the Minister of the Interior dated 19 July 1968. The Government goes on to state that the Examining Magistrate of the Casablanca Regional Court, when the case was brought before him by the Public Prosecutor, charged Mr. Awab with infringing section 1 of the dahir of 28 June 1935 and section 45 of the dahir of 15 November 1958 and remanded him to appear before the above-mentioned court, which, by a judgment of 29 October 1968, sentenced him to one year's imprisonment and a fine of 500 dirhams for the above-mentioned offences. The Government appends the text of the judgment to its reply.
20. 198. It appears from this judgment that Mr. Awab, having been charged with the offence of publishing and disseminating a text likely to be prejudicial to public order and of defaming the Moroccan Government and Moroccan government departments, was indeed sentenced for having contravened the legislative provisions referred to in the preceding paragraph. Moreover, as may be seen from the statement of the grounds adduced for the judgment, the court noted that the accused " was responsible for having made the speech ", and " claimed to have received the above-mentioned text through the post from the organisation of which he is a member; that he has, however, forgotten or claims to have forgotten that he edited the speech he made and for which he is responsible ... for purposes of calumny and defamation against the Moroccan Government and Moroccan government departments and in order to encourage disturbances of public order and resistance to the laws, decrees and orders of the authorities ...... In conclusion, " the court declared that the accused, Awab Abdelkader ben Ahmed, from Marrakesh, was guilty of two offences, namely defamation against the Moroccan Government and Moroccan government departments and the dissemination of insultingly worded statements which aroused and fomented active and passive revolt and were prejudicial to public order, peace and security, and condemned him to one year's imprisonment and a fine of 500 dirhams ".
21. 199. The Government ends its observations by stating that appeals against the sentence have been lodged by the accused and by the Public Prosecutor, and that the case is now pending before the Court of Appeal of Rabat.

B. B. The Committee's conclusions

1. 200. In these circumstances, while reaffirming the observations recalled in paragraphs 180 to 184 above, the Committee considers that it should await the outcome of the proceedings now instituted in a higher court in the case of Mr. Awab before submitting its conclusions to the Governing Body. It therefore recommends the Governing Body to request the Government to be good enough to supply the text of the judgment of the Court of Appeal when it is pronounced, together with the grounds adduced therein.
2. 201. Furthermore, the Committee recalls that at its session in November 1968 it expressed the view that since the questions raised in this case were closely linked with the functioning of the Conference, it might seem appropriate for the whole matter to be brought to the attention of the Conference. Noting in this connection that section 17 of Article V of the Convention on the Privileges and Immunities of the Specialised Agencies, which lays down that the provisions referred to in paragraph 182 above are not applicable in relation to the authorities of a State of which the person is a national or of which he is or has been a representative, did not appear to take account sufficiently of the particular case of Workers' and Employers' representatives at meetings of the International Labour Organisation, the Committee raised the question whether, in the light of the general principle laid down by article 40 of the Constitution, measures should be envisaged to ensure complete protection for these persons.
3. 202. The Committee feels bound to maintain the views recalled in the preceding paragraph. However, considering it necessary to await the receipt of certain additional information (see paragraph 200) in order to be able to assess the facts of the case, the Committee is of the opinion that it would be premature for it to make recommendations at this stage concerning the points raised in the preceding paragraph, and deems it preferable for them to be left outstanding for the time being.

The Committee's recommendations

1. 203. In these circumstances the Committee recommends the Governing Body:
   • (a) to express once again its serious concern at the arrest and sentencing of Mr. Awab, which indeed appear to be the outcome of the speech which he made at a plenary sitting of the 52nd Session of the International Labour Conference, these measures appearing to jeopardise freedom of speech for delegates at the Conference, as well as the immunities which guarantee this freedom;
   • (b) to request the Government to be good enough to supply the text of the judgment of the Court of Appeal in the case of Mr. Awab when this judgment is pronounced, together with the grounds adduced therein;
   • (c) to take note of the present interim report, on the understanding that the Committee will report again as soon as it is in possession of the additional information to which reference is made in subparagraph (b) above, and in the meantime to adjourn its examination of the case.