98
the boards of directors of trade union organisations, and of public servant associations;
their delegates and trade union or sectoral representatives, directors of public servant
associations regardless of whether or not they enjoy trade union powers or whether or
not they are governed by special laws. (The italics are not from the original).
156. In considering whether or not, in the case in question, there was violation of
the freedom of association, it must be analysed in relationship with labour union
freedom. In labour union matters, freedom of association consists basically of the
ability to constitute labour union organisations, and to set into motion their internal
structure, activities and action programme, without any intervention by the public
authorities that could limit or impair the exercise of the respective right. On the
other hand, under such freedom it is possible to assume that each person may
determine, without any pressure, whether or not she or he wishes to form part of the
association. This matter, therefore, is about the basic right to constitute a group for
the pursuit of a lawful goal, without pressure or interference that may alter or
denature its objective.
157. The Preamble of the ILO Constitution includes the “recognition of the principle
of freedom of association” as an indispensable requirement for the attainment of
“universal and lasting peace.”59
158. This Court feels that, in trade union matters, freedom of association is of the
utmost importance for the defence of the legitimate interests of the workers, and
falls under the corpus juris of human rights.
159. In labour matters, and pursuant to the terms of Article 16 of the American
Convention, freedom of association includes a right and a freedom, to wit: the right
to form associations without restrictions other than those permitted according to
sections 2 and 3 of that conventional precept, and the freedom of all persons not to
be compelled or forced to join the association. The November 17, 1988, San
Salvador Protocol, in its Article 8(3), contains the same idea, and specifies that, in
trade union matters “[n]o one may be obliged to belong to a labour union.”
160. The entirety of the evidence in the instant case shows that, in dismissing the
State workers, labour union leaders who were working on a number of claims were
dismissed. In addition, the members or workers organisations were dismissed for
acts that were not causes for dismissal according to the legislation in force at the
time of the events. This proves that the intention in making Law 25 retroactive in
compliance with orders from the Executive Branch, was to provide a basis for the
massive dismissal of public sector trade union leaders and workers, such actions
doubtlessly limiting the possibilities for action of the trade union organisations in the
cited sector.
161. At the public hearing on the merits, held at the seat of the Court, the witness
who was Attorney General of the Nation from December 1990 to November 1991,
expressed that “very clear signals could be seen, indicating that the Government
wanted [for them to] involve the trade union leaders,” and that “such messages
were received [by them] in different manners,” through “semi-official messengers”
(This translator's version of the quotations).
On the same occasion, the expert
Humberto Ricord, an attorney-at –law and a specialist in labour and constitutional
59
cfr. also ILO. Convention 87 Concerning Freedom of Association and Protection of the Right to
Organise, of June 17, 1948, and Convention 98 Concerning the Application of the Principles of the Right to
Organise and to Bargain Collectively, of June 8, 1949.
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