Constitutional Council, 17 July 2013, Case No. 2/C/2013
Freedom of association , Right to strike
Reference to international law to strengthen a decision based on domestic law
Attendance of a public meeting related to trade union activities / Customs inspection staff / Use of international law to strengthen a decision based on domestic law
A customs inspector brought an annulment appeal for an ultra vires act against an administrative decision penalising his attendance of a public meeting related to trade union activities. In support of his claim, he posited the unconstitutionality of the law on the status of customs staff, which denies these officers freedom of association and the right to strike. The administrative division of the Supreme Court responsible for ruling on the dispute, stayed the proceedings and referred the case to the Constitutional Council so that it could rule on the constitutionality of the law in question.
Proceeding to analyse Article 8 of the Constitution, which guarantees civil and political freedoms, and in particular the freedom of association, to meet and to demonstrate, as well as trade union freedoms; and Article 25 of the Constitution, which establishes the right to strike, the Constitutional Council nonetheless emphasised that these freedoms and rights are not absolute and “that in providing that they act within the framework provided by law, the drafters of the constitution intended to state that the right to strike and the freedom of association have limits resulting from the necessary reconciliation between defending professional interests, which the strike was a means of defending, and protecting the general interest which the strike could affect”.3
The Constitutional Council continued relying on Article 8(2) of the International Covenant on Economic, Social and Cultural Rights which, from the Court’s point of view, “falls within this perspective” by authorizing legal restrictions on the exercise of the right to strike with respect to members of the armed forces, the police and the civil service.4 To support its argument, the Court also referred to the work of the ILO Committee on Freedom of Association. More specifically, the Council cited the 226th report of the Committee in which it recognized, with respect to government officials and the judiciary, that the right to strike “[could] be subject to restrictions, such as suspension or prohibition”.5 The Council also referred to the 304th report of the Committee in which the Committee stated that “the prohibition on the right to strike for customs officers, officials in positions of authority in the state, was not contrary to the principles of freedom of association”.6
As “customs staff, paramilitary corps, provide a public service which cannot accommodate a deliberate interruption that endangers the functioning of the state and that the general interest thereby also justified the ban by the legislator on the right to strike and freedom of association of customs staff”, the Constitutional Council decided that the law questioned by the applicant was not contrary to the Constitution.7
In this ruling, the Constitutional Council thus upheld that neither freedom of association nor the right to strike are absolute, on the basis of the provisions of the Constitution; this justification was strengthened by reference to the International Covenant on Economic, Social and Cultural Rights as well as the work of the ILO Committee on Freedom of Association.