Rapport intérimaire - Rapport No. 256, Juin 1988

1. 361. The Committee examined this case at its November 1987 meeting and submitted an interim report to the Governing Body. (See 253rd Report, paras. 392-424, approved by the Governing Body at its 238th Session (November 1987)). The International Organisation of Employers (IOE) subsequently sent new allegations in a communication dated 7 March l988. The Government sent certain observations in communications dated 9, l6 and l8 November and 2 December l987, and l5 February and 8 March l988.
2. 362. Panama has ratified both 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).

A. Previous examination of the case

1. 363. In the present case, the complainant organisation alleged the issuing of warrants of arrest against seven employers' leaders (two of whom were in hiding) accused of committing crimes of sedition and of attempting to overthrow the Government; the search of the premises of the Chamber of Commerce and the Panamanian Association of Managers of Enterprises (APEDE) and the confiscation of documents; the banning of certain newspapers, radio stations and television channels; and the encouragement or tolerance by the police of measures taken against certain employers' leaders and their undertakings during the months of June and July 1987. According to the complainant organisation, the confiscation of documents and issuing of warrants for arrest were the outcome of a public demonstration by employers' and other organisations demanding the restoration of civil liberties, the termination of the suspension of constitutional guarantees and a campaign against the economic paralysis of the country and its consequences on employment; the demonstrators called, inter alia, for investigations into accusations of government corruption, murders and other crimes, the application of constitutional provisions to the Defence Forces and the reorganisation of government institutions, the legislative and judicial bodies and the electoral tribunal.
2. 364. The Government emphasised in its reply that the warrants for arrest and the searches were part of an investigation conducted by the Public Prosecutor of the Third Instance of the First Judicial District in full compliance with the legislation in force regarding the legal rights and guarantees, following the perpetration of acts defined in the Penal Code as crimes against the internal integrity of the State and against economic security. In its reply the Government stated in particular that citizens grouped together in a movement known as the National Civil Crusade, of which the Chamber of Commerce, Industries and Agriculture of Panama and the Panamanian Association of Managers of Enterprises are members, were guilty of incitement to rebellion, sedition and riot and to the non-payment of public services, and that leaflets were written, reproduced and distributed on the premises of the above-mentioned employers' organisations. The Government stated further that mass means of communication used by certain members of the Civil Crusade had been found on the premises and that the population had been incited to hold public demonstrations to protest against government institutions, advocating, inter alia, the overthrow of the national Government. The movement also incited citizens to carry out acts of violence in the streets, such as the erection of barricades, setting fire to property and the use of firearms. The Government pointed out that the legal proceedings instigated were in no way related to the activities of the persons concerned as the officials of occupational organisations and that the Public Prosecutor of the Third Instance of the First Judicial District had placed in the penal investigation file a large quantity of documents and leaflets collected during the search of the premises of the Chamber of Commerce, Industries and Agriculture of Panama (some of which the Government enclosed), which, according to the Government, confirmed that crimes conducive to the overthrow of the Government had been committed against the internal integrity of the State and against the national economy.
3. 365. At its November 1987 meeting, the Committee emphasised that it was the responsibility of the Committee to determine to what extent the measures taken by the authorities to punish the activities organised or carried out in support of the objectives of the National Civil Crusade had hampered the exercise of the rights of employers' organisations and their leaders.
4. 366. The Committee emphasised in this connection that, although the Government had provided general information on the warrants for the arrest of the employers' leaders Barria, Vallarino (both at present in hiding), Brenes, Mallol and Zúñiga, it had not indicated the specific acts of which they are accused individually; neither had it sent information regarding the allegations with respect to the warrants for the arrest of the employers' leaders César Tribaldos and Carlos González de la Lastra. The Committee noted further that the Government had not made any specific observations on the comments of the complainant organisation concerning the search of the premises of the two employers' organisations and the confiscation of documents. Indeed, according to the IOE, the report of the search carried out on the premises of the APEDE stated that nothing had been found, whereas the officials of the Public Prosecutor's Office who supervised the search claimed that a large quantity of subversive material had been found. As regards the search of the Chamber of Commerce, the IOE maintained that the police attempted - in vain - to introduce weapons into the premises and that no report is available on the search.
5. 367. In these circumstances, the Committee requested the Government to send further detailed information on the specific acts which had led to warrants being issued for the arrest of each of the seven employers' leaders, on the state of the proceedings initiated and on the searches conducted and documents confiscated on the premises of the APEDE and of the Chamber of Commerce (including the report on the search of the latter's premises), with specific reference to the points raised by the complainant organisation. Furthermore, noting the social unrest (particularly within employers' organisations) which had led to the events of recent months and aware that the points noted above still needed to be clarified, the Committee considered that social tension would be relieved if the employers' leaders under arrest, or for whom warrants had been issued, were granted bail and if those who had left the country were allowed to return. While noting the Government's explanations concerning the refusal to grant bail to those involved, the Committee called on it to study the possibility of doing so.
6. 368. Finally, the Committee requested the Government to send its observations on certain allegations to which it had not replied:
   • - the arrest of Mr. Conte, public relations adviser of the National Council of Private Enterprise (CONEP), on 13 October 1987 while disembarking from a plane arriving from the United States, no information having been received as to where or why he is being held;
   • - prohibition of publication of the newspapers El Extra, El Siglo, La Prensa, El Quiubo and La Gaceta Financiera and of broadcasts from the radio stations Continente, Mundial, Sonora and two television channels;
   • - violent acts perpetrated or tolerated by the police against leaders of the Chamber of Commerce and their undertakings during the months of June and July 1987 in the Danté shopping centre.

B. New allegations

1. 369. In its communication dated 7 March l988, the IOE states that the arrested employers' leader Aurelio Barria had been released. The IOE adds that the premises of the Chamber of Commerce are still occupied by the authorities and that the following communication media have been closed down: Channel 5 (TV), Radio Mundial, La Prensa, El Siglo and El Extra. The employers' organisations have thus been deprived of the communication media necessary for the normal exercise of freedom of association.

C. The Government's reply

1. 370. The Government reiterates its previous statements and points out that the legal proceedings relating to a series of criminal acts committed by certain members of an organisation called the Civil Crusade were by no means aimed at infringing the guaranteed rights of employers and workers to form organisations, such guarantees constituting the very foundation of the country's economic system and social peace. The complainant organisation has sent the ILO several statements and documents containing subjective assessments aimed at distorting the measures adopted by the Public Prosecutor's Office in connection with the direct criminal involvement of some leaders of nation-wide employers' organisations in incidents of a political character aimed at overthrowing the Government. The Public Prosecutor of the Third Instance of the First Judicial District, duly empowered by the national Public Prosecutor's Office in accordance with the principle of independence in carrying out its activities, is conducting the investigation into the presumed participation of a group calling itself "Civil Crusade", led by the executive committee of the Chamber of Commerce or by a part of this and other groups, in committing criminal acts arising out of instigation to "civil disobedience". This shows that any allegation of interference by any state official or body is baseless. There is also no truth in the allegations of arbitrariness and illegality of the arrest warrant issued on 4 August 1987 against Aurelio Antonio Barria, Gilberto Joaquín Mallol Tamayo, Rafael Zúñiga, Eduardo Vallarino Arjona and Roberto Gonzalo Brenes Pérez, since the warrant was issued by a competent official, within the mandate conferred upon him by law. It should also be recalled that the persons concerned have not availed themselves of the legal remedies provided for in the Panamanian rules of procedure.
2. 371. The search proceedings referred to by the complainant organisation were carried out in accordance with section 2185 of the Judicial Code, in the presence of lawyers and leaders of the institutions subjected to search. While it is true that no evidence of the crime under investigation was found on the premises of the Panamanian Association of Managers of Enterprises, in those of the Chamber of Commerce, Industry and Agriculture of Panama, however, a wealth of documentation was found, proving the existence of the punishable act, and was duly included in the investigation file; it is worth noting that the complainant organisation has not supplied a copy of the report of the latter search (the Government encloses a copy of this report).
3. 372. As regards the alleged investigations involving public communication media, the Government points out that no judicial measures have been adopted affecting the publication of the weekly Quiubo, the supplement La Gaceta Financiera and the daily newspaper El Extra, although an investigation is being conducted into the publication by the latter of news which is contrary to the security of the national economy, defined as a crime in section 372 of the Penal Code. The daily newspapers La Prensa and El Siglo are also under criminal investigation by the Public Prosecutor's Office in connection with repeated and continuous publication of news jeopardising the internal security of the State, which is protected by penal law. Thus, on the basis of these provisions and in view of the constant repetition of the punishable conduct defined in section 306 of the Penal Code, the competent official conducted a search in the printing press of the newspaper La Prensa and proceeded to take measures to secure the items which were the object of the investigation, in accordance with the provisions of section 2190 of the Judicial Code. The same procedure was carried out by the Sixth Public Prosecutor of the First Circuit on the premises of the newspaper El Siglo as part of the criminal investigation being conducted into the commission of criminal acts jeopardising the national economy, and in particular the crime described in section 372 of the Penal Code. The temporary closure of the radio stations KW Continente and Radio Mundial was also effected in the context of the criminal investigations arising out of the use of these broadcasting media for activities aimed at destabilising and disrupting the public order, as evidenced by the commission of criminal acts against the internal integrity of the State. It should also be pointed out that the Ministry of Government and Justice is the institution competent to deal with all matters relating to concessions for the use of radio broadcasting frequencies, in accordance with the provisions of Decree No. 155 of 28 May 1962, to which a clause was added by Decree No. 61 of 24 June 1987, according to which the above-mentioned institution may declare the expiration or cancellation of such concessions "if there is incitement to disturbance of the public order, to the commission of criminal acts or to non-observance of the Constitution or laws of the Republic and the duties laid down in them, to replacement of state bodies by violent means and to disobedience of established laws and authorities". No criminal investigation has yet been opened against any television channel, and the Government therefore denies the reference made to this effect in the complaint.
4. 373. The Government emphasises that the judicial measures adopted with regard to certain mass communication media have by no means impaired the free exercise of freedom of expression, much less that of employers' organisations. This is evidenced by the publications of various employers' associations, chiefly in the daily newspaper La Estrella de Panamá and in the many interviews they have given over television channels and radio programmes, all of which clearly show that the elements constituting freedom of association have not been affected in the least in this country. The Government states once again that the criminal proceedings instigated have not involved any infringement of applicable constitutional and legal procedure, and that at no time has there been any denial of the rights, remedies and procedural guarantees to the persons under investigation, neither has there been any violation of freedom of association of any organisation or person.
5. 374. Finally, the Government states that the arrest warrants issued by the Public Prosecutor's Office against Roberto González Brenes, Gilberto Joaquín Mallol Tamayo and Rafael Zúñiga for common law crimes have not been carried out, since the latter have left the country of their own accord. The Government adds that Mr. Alberto Conte was released on 27 October 1987.
6. 375. In its communications dated l5 February and 8 March l988, the Government states that the organisation called the National Civil Crusade, which was originally presented as an apolitical civic organisation comprised of employers', teachers' and occupational groups, gradually became a political front opposed to the national Government. This is clear from the repeated public statements and proposals made by persons on the executive committee of the National Civil Crusade, the same persons who are the subject of the complainant organisation's concern. The immediate objective of the most recent public statements made by the leaders of the National Civil Crusade is to urge and encourage a coup d'état as a means of setting up a provisional government. In this connection two paragraphs should be quoted from the document entitled "Proposal for a programme of transition to democracy", presented, published and disseminated by the leaders of the National Civil Crusade:
   • "Once the main obstacles to the establishment of rule of law have been overcome, and taking into account the views of the vast majority of the Panamanian people, it is proposed to set up a provisional government Junta comprising three members, who shall act on a majority basis. The present Legislative Assembly shall cease its functions, and the provisional government Junta will assume legislative power, through cabinet decrees, during the term of office of the provisional government, which should not exceed l8 months."
   • "In accordance with the principles outlined above, we recommend that the provisional government Junta be constituted as follows: one member appointed by the opposition political parties and two members appointed by the National Civil Crusade." Thus, continues the Government, the employers' leaders grouped together in the National Civil Crusade, which is not an employers' organisation, not only intend to claim political power through a coup d'état, setting themselves up as a government Junta in which they constitute a majority, and assuming executive and legislative power, but also aim to appoint a new electoral tribunal, a new public prosecutor's office, a new supreme court of justice, new higher courts of justice, and new attorneys and public prosecutors. It likewise intends to carry out radical reforms in the management of the foreign debt, of labour-management relations, of education and the public administration, to reform the national Constitution, the institutions of the State and the army, and to reorganise the management of Panamanian interests in the Panama Canal, all of which is to take place according to the will of two members of the National Civil Crusade and one member of the opposition parties. The dissemination of the document entitled "Proposal for a programme of transition to democracy" constitutes incitement to totalitarian rule by a group of persons, most of whom are employers, using supposedly occupational associations and interests as a cover in order to seize political power.
7. 376. The Government states further that the arrest warrants which were the subject of the complaint presented to the Committee and the searches carried out on the premises of the two employers' organisations have turned out to be fully justified. The persons for whom the arrest warrants were issued have all been identified, some of them by their own admission, as leaders and co-ordinators of the National Civil Crusade, an organisation with completely illegal objectives, as has been shown not only by the evidence in the criminal investigation files, but also by the political "Proposal" in which this organisation states its intention to change government institutions by illegal means. Since the penal legislation contains legal rules clearly defining the criminal conduct, it is the responsibility of the State to institute criminal proceedings against those presumed guilty, in this case against those persons who publicly admitted to directing and co-ordinating the criminal organisation which is intended to carry out a coup d'état.
8. 377. The Government reiterates that in the course of the searches carried out on the premises of the employers' organisations, evidence was seized on the participation of these organisations in the crime under investigation. On the premises of the Chamber of Commerce, the official headquarters of the National Civil Crusade, a large quantity of documentary evidence was seized, and while it is true that no such evidence was found on the premises of the APEDE, on those of the Chamber of Commerce, on the other hand, documents were found showing that instructions had been sent by telefax from the Chamber for the APEDE to duplicate thousands of copies of subversive manifestos, and identifying the persons responsible for such activities. It is childish to suggest that the police attempted to introduce weapons on the premises of the Chamber of Commerce in the course of the search while in the presence of hundreds of eye witnesses, including innumerable national and foreign press correspondents. If this had occurred, television and film records of the representatives of the press would have been circulated all over the world, and it therefore denies this accusation. There is no contradiction in the statements that no subversive documents were seized on the APEDE premises and that it was proved that the APEDE premises were, however, used for subversive purposes, since they were used as a printing office for duplicating subversive material. Although there may be confusion in press accounts, the fact remains that the National Civil Crusade operated and, moreover, still operates in both premises: those of the Chamber of Commerce and the APEDE. It is not true that the documents seized were confiscated and analysed without the elementary guarantees in order to prove accusations made several hours later; the criminal act was proved by merely reading the documents seized and, subsequently, a thorough and meticulous examination revealed the entire operating system of the illegal organisation and showed the different extents to which various persons were involved in the criminal act.
9. 378. Notwithstanding the foregoing, continues the Government, the President of the Republic, by virtue of his constitutional powers, issued Decree No. 91 of 22 December l987 pardoning a large number of persons standing trial and penalties for committing political crimes and related common law crimes which occurred between 8 June l987 and the day on which the Decree was issued. The pardon extended to all of the leaders of the National Civil Crusade against whom criminal proceedings had been instituted up to that date. By Act No. 2 of 5 January l988, the legislature granted an amnesty to all Panamanians implicated in, accused of or prosecuted for crimes against the internal integrity of the State, as defined in section 306 of the Penal Code, and for crimes against the national economy. This amnesty entered into force on 15 January l988 and also provided for the reopening of the communication media which were under criminal investigation. However, the reopening of these media and the return of the leaders of the National Civil Crusade who had fled the country, resulted in the commission of criminal acts threatening the internal integrity of the State and the national economy; these included a substantial increase in the circulation of the above-mentioned "Proposal for a programme of transition to democracy", which is a profoundly subversive document.
10. 379. Despite the pardon and the amnesty, the same group of persons still runs the organisation known as the National Civil Crusade and, starting in the second half of January, these citizens, all of whom are employers, resumed their subversive activities through the unlawful organisation. These persons include Eduardo Vallarino, Aurelio Barria, Gilbert Mallol, César Tribaldos, Rafael Zúñiga, Roberto Brenes, Carlos González de la Lastra and Alberto Conte, who, inter alia, insist on adhering to their political plan aimed at carrying out a coup d'état and setting up totalitarian rule by employers. The State therefore, mindful of its constitutional and legal obligations, has instituted criminal proceedings in order to protect the legal order and security of society.

D. The Committee's conclusions

1. 380. The Committee notes the Government's reply and, in particular, that under the pardon Decree, No. 91 of 22 December l987, and the amnesty Act, No. 2 of 5 January l988, the penal proceedings brought against the employers' leaders referred to in the complaint for whom arrest warrants had been issued were annulled, and the communication media which had been under criminal investigation were reopened. The Committee observes, however, that the Government states that, since the second half of January l988, new criminal proceedings have been instituted against employers' leaders Eduardo Vallarino, Aurelio Barria, Gilbert Mallol, César Tribaldos, Rafael Zúñiga, Roberto Brenes, Carlos González de la Lastra and Alberto Conte, after they resumed their subversive activities aimed at carrying out a coup d'état, through the unlawful organisation known as the National Civil Crusade. The Committee also notes that the complainant organisation alleged that major communication media were closed down in March l988. The Committee notes further the information provided by the Government on the searches carried out in l987 on the premises of the APEDE and the Chamber of Commerce, including the report of the latter search; however, the Committee notes with concern that, according to the complainant's March l988 communication, the authorities continue to occupy the Chamber of Commerce.
2. 381. In this respect, while the Committee takes note of the Government's statements relating to the political objectives of the organisation known as the National Civil Crusade, it wishes to point out - as it did at its previous examination of the case - that it is the responsibility of the Committee to determine to what extent the measures taken by the authorities to punish the activities organised or carried out in support of the objectives of the National Civil Crusade have hampered the exercise of the rights of employers' organisations and their leaders. In this respect, the Committee regrets that the Government has not sent detailed information on the specific facts which, in each case, led to the proceedings against employer leaders Eduardo Vallarino, Aurelio Barria, Gilbert Mallol, César Tribaldos, Rafael Zúñiga, Roberto Brenes, Carlos González de la Lastra and Alberto Conte, and on the state of the trials and the situation of the persons concerned (in particular, whether they are detained or whether a warrant has been issued for their arrest). The Committee also emphasises that the Government has not replied to the allegations relating to the extended occupation of the premises of the Chamber of Commerce and the closure of major communication media. The Committee wishes to stress the severity of these measures and to insist that the Government send its observations in this respect as a matter of urgency. Finally, the Committee requests the Government to respond to the allegation that violent acts were perpetrated or tolerated by the police against leaders of the Chamber of Commerce and their undertakings during the months of June and July l987.