International Centre for Trade Union Rights

The leopard changes his spotsAuthor(s): Tim KerrSource: International Union Rights, Vol. 1, No. 2, No carnival for Brazilian women (SECONDQUARTER 1992), pp. 38-39Published by: International Centre for Trade Union RightsStable URL: http://www.jstor.org/stable/41936959 .

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CASE STUDY □ CZECHOSLOVAKIA

The leopard

changes his

spots

The sins of the

fathers are visited

on their sons as

the government

passes a law

which accepts the

principle of

collective guilt

and responsibility.

Tim Kerr

assesses its legal

content

President another human knows that

rights

Vaclav

to uphold

it is in

Havel one opposition, the

thing of

same

Czechoslovakia to

high

champion but quite

stan- President

knows that it is one thing to champion human rights in opposition, but quite another to uphold the same high stan-

dards in the government over which he presides. The more real power he exercises, the more diffi- cult he finds it to occupy the moral high ground. The recent outcry over his government's controversial "filtration law" (no. 451/91) is a case in point.

This measure is said to be necessary in order to purge the body politic of the pernicious influ- ence of the ancien regime. From 5 November 1991 up to the end of 1996 it excludes from large areas of public and private sector employ- ment all who cannot prove they do hot fall within a broadly defined category of people con- nected with the former communist government.

A Committee of experts set up by the ILO's governing body issued its final report on 28 February in response to a complaint by two trade union centres that the filtration law violates ILO Convention no.lll. This requires Czechoslo- vakia and the other ratifying states to apply a national policy designed to promote equality of opportunity and treatment at the workplace. The Committee's report rather apologetically convicts Czechoslovakia of a breach of the con- vention, finding that the law is broader than necessary to achieve the legitimate objective of targeting individuals reasonably suspected of activities prejudicial to state security.

Both the complainant union centres, the Confederation of Czech and Slovak Trade Unions (CS-KOS) and the Trade Union Asso- ciation of Bohemia, Moravia and Slovakia (OS-CMS), concede the legitimacy of excluding from public life, within the framework of the rule of law, former mem- bers of the state security service guilty of specific violations of human rights. But both object to the principle of "presumed collective guilt" which underlies the filtration law.

If you are one of the estimated one million plus Czechoslovak citizens who falls within the excluded categories, you cannot be a general or a colonel in the Army, you cannot work as a civil servant, join the police force, work for any pub- lic press or broadcasting agency or for any whol- ly or majority owned state enterprise, nor for any foreign trade enterprise, the railways, nor an academic institution. Nor can you sit as a judge or magistrate, or work for certain concessionary activities including the supply of medical equip-

ment, an-tique deal- ing, funeral under- taking and taxi driv- ing.

Who are the peo- ple who must stay out of these occupa- tions or face dis- missal if already in them? They are listed in articles 2 and 3 of the filtration law as those who be-tween February 1948 and November 1989 were members of or were associated with (in various ways) the

Havel: under pressure to deliver regardless of social consequences?

national and state security agencies, or who appear in their files as informers (reluctant or otherwise); students or teachers in ex-USSR institutions concerned with state security, public security or ideology; and members or the political and ideological appara- tus of the former regime, including the commu- nist party at district or higher level (there is an exception for those who only held office during the "Prague Spring" period of 1968-69), the peo- ple's militia and the action committees.

There is no procedure in the filtration law for looking at individual cases, for example in order to determine whether a blackmail victim who appears as an informer in security service files is unfit to be an antique dealer. And there is no

There is no procedure in the filtration law for looking at

individual cases... The burden is on the citizen to prove that she or he does not fall within within one of

the excluded categories

right of appeal. The burden is on the citizen to prove a negative, ie that he or she does not fall within one of the excluded categories. A certificate to that effect can be obtained from the Ministry of the Interior, provided the Government believes the story put forward. There is nothing to stop

ordinary private sector employers from deman- ding production of the certificate as a condition of employment, even outside the sphere of the forbidden occupations.

Even more strange than its content is the possibility that the filtration law could well be constitutionally invalid. The Constitutional Law (no. 23/1991) brings into effect the Charter of Human Rights and Fundamental Freedoms and gives it priority over any subsequent inconsis- tent measure. It enacts that national law must be brought into line with the Charter, and with international conventions to which Czechoslo-

INTERNATIONAL UNION RIGHTS

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vakia is a signatory, by 31 December 1991, other-wise any incompatible legislation will cease to have effect from that date.

Is the filtration law incompatible with the Charter of Human Rights and Fundamental Freedoms? Astonishingly, Mr Havel himself thinks it is. On 17 October 1991 he addressed an open letter to Alexander Dubcek, President of the Federal Assembly and another celebrated human rights champion, after the latter had refused to sign the bill into law on the ground that it would deprive about a million citizens of their fundamental human and trade union rights. Mr. Havel's letter says that the bill is fraught with difficulty because it is based on the principle of collective guilt, flies in the face of due process and runs counter to the established norms of a democratic legal order.

Why then did Mr Havel him- self sign the bill into law? The reason he gives in his letter is a masterpiece of political doubles- peak. He says that a law cannot be amended without first being

The filtration law could well be

constitutionally invalid

in force. Therefore, he would sign the bill, since he did not wish to block the possibility of amendment by preventing its promulgation. He wished his letter to be considered as a legislative initiative for the amendment of the bill.

That will be cold comfort for the dozens of people already sacked since 5 November as a result of the law coming into force. And it is per- haps the only example on record of a head of state admitting to making a bad law in order to make it better. But if the filtration law does con- flict with the Charter of Rights and Freedoms, then it should have lapsed from the start of 1992. Only the Constitutional Court has the power to rule on the point. In his open letter of 1 7 October Mr Havel urged the Federal Assembly to proceed with the rapid selection of candidates to sit on the Court. Since then the nominations have been made and the members of the Court appointed from among them - by President Havel.

By or Court,

amended the

struck

time

many

in down

the line

Czechoslovak

filtration with by the

the Constitutional ILO's law

citizens

criticisms is either

will

amended in line with the ILO's criticisms or struck down by the Constitutional Court, many Czechoslovak citizens will

have unjustly suffered. Will they be paid com- pensation and offered jobs afterwards ? This tale of betrayed ideals exposes the inadequacy of the ILO yet again. The tone of its final report is def- erential. And the report should not have been final, since the business is unfinished.

The Committee expresses optimism that the outcome will be satisfactory in view of "the

Tim Kerr is an English barrister specialising in labour and employment law. He is a Deputy- Editor of IUR

Dubcek: principled stand in defence of the rights of about one million fellow citizens

exceptional quality of the democratic debate to which the questions raised by law 451/91 has given rise.".

Slick politicians of the type Mr Havel is fast becoming have long been adept at using the rhetoric of democra- cy to mani-pulate bureaucratic interna- tional institutions. The ILO must be vig- ilant against the possibility of such manipulation □

ňuíj^^ National Union of* and Public The National Union of* and Public Servant s

NUCPS calls for the

implementation of ILO Conventions

For restoration of trade union rights at GCHQ

For trade union rights, peace and freedom

throughout the world

124-130 Southwark Street London SE1 OTU 071 928 9671

#

The Furniture

Timber &

Allied Trades

Union

supports

trade union

rights

everywhere

Colin Christopher General Secretary

Fairfields, Roe Green Kingsbury, London NW9 OPT

KB

SECOND QUARTER 1992

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