Rapport intérimaire - Rapport No. 262, Mars 1989

1. 245. The Committee examined this case at its November 1987 and May 1988 meetings and submitted an interim report to the Governing Body on both occasions (see 253rd Report, paras. 392-424 and 256th Report, paras. 361-382, approved by the Governing Body at its 238th Session (November 1987) and 240th Session (May-June 1988)). The International Organisation of Employers (IOE) subsequently sent new allegations in communications dated 1 July, 21 October, 25 November and 28 December 1988. The Government replied in communications dated 30 May and 2 October 1988 and 4 January 1989.
2. 246. 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. 247. When the Committee examined this case at its May 1988 meeting, it made the following recommendations on the pending allegations (see 256th Report, para. 382).
   • a) The Committee notes with concern that, despite the Amnesty Act of 1988, new events have occurred, including the prosecution of eight employers' leaders, the extended occupation of the premises of the Chamber of Commerce and the closure of major communications media.
   • b) The Committee requests the Government to send detailed information on these specific acts which, in each case, led to the proceedings against the eight employers' leaders, and on the state of the proceedings and the situation of the persons concerned (in particular indicating whether they are detained or a warrant has been issued for their arrest); the Committee also requests the Government to send its observations, as a matter of urgency, on the allegations relating to the continued occupation of the Chamber of Commerce and the closure of major communications media.
   • c) Finally, the Committee once again requests the Government to respond to the allegation relating to the violence perpetrated or tolerated by the police against leaders of the Chamber of Commerce and their undertakings during the months of June and July 1987.

B. New allegations

1. 248. In its communication of 1 July 1988, the IOE alleges that the premises of the Chamber of Commerce, Industries and Agriculture of Panama and the Trade Union of Industrialists of Panama (SIP) are still occupied by the armed forces and have been since 25 February and 25 April 1988, respectively. The IOE sends a copy of the search warrant for the SIP premises and states that the assets and property of this organisation were confiscated. On 26 May 1988, it was not possible to hold an extraordinary meeting of the SIP in its premises because the armed forces occupying them refused permission for this. The continued occupation of these premises and the confiscation of furniture are not in accordance with the corresponding search warrant. The normal activities of the SIP are thus being disrupted, as are those of the Panamanian Association of Exporters and the Centre for the Development of Productivity, both of which also use these premises.
2. 249. The IOE adds that Alberto Boyd, President of CONEP, and Carlos Ernesto de la Lastra were arrested on 1 February 1988 and released 24 hours later on bail of $10,000 without having been tried for the alleged charge brought against them of actions against state security.
3. 250. On the day and at the place where Mr. Boyd and Mr. Lastra, CONEP officials, were being released, the police arrested Alcides Rodríguez, a journalist from La Prensa, as he was photographing the actual release. His equipment was confiscated and Alcides Rodréguez sentenced, without being able to call upon a lawyer, to 365 days' imprisonment, which was later commuted to a fine of $365 for "lack of respect for the authorities".
4. 251. Furthermore, the IOE points out that contrary to the statements made in paragraphs 372 and 380 in the 256th Report of the Committee on Freedom of Association, the newspapers La Prensa, Quiubo, Extra and Siglo have been banned, and the radio stations La Exitosa, Continente and Mundial and Channel V (TV) have been forbidden to broadcast for several months.
5. 252. In communications dated 26 September, 21 October and 25 November 1988, the IOE alleges that Alberto Conte, President of the Panamanian Chamber of Advertising Media and member of the CONEP Executive, and Kaiser Dominador Bazán, former President of the Chamber of Commerce, Industries and Agriculture of Panama were arrested, without any charges being brought against them. Alberto Conte's enterprise was broken into and searched and his property was confiscated, after which the undertaking was closed on the alleged orders of the Assistant Prosecutor of the Republic. From a document sent by the IOE, and dated 10 November 1988, it appears that on the day that Alberto Conte was arrested (22 September 1988), he was not allowed to confer in private with his lawyer. The file of the Deputy Prosecutor of the Republic contains no proof or indication that Alberto Conte has committed any punishable offence.
6. 253. In its communication of 28 December 1988, the IOE alleges that on Tuesday, 20 December 1988, Roberto Brenes, President of the Panamanian Association of Managers of Enterprises (APEDE) a member organisation of CONEP, and secretary of the CONEP Executive, was arrested by order of the police, without being able to call in a lawyer, and on 21 December was deported. Roberto Brenes is accused of having carried out subversive activities. He denies this charge and challenges the regime to prove it publicly before a court that legally examines his case. As deportation is not provided for either in the Constitution or in the Penal Code of Panama, the police are trying to explain the penalty imposed as "a voluntary exile". The IOE encloses the text of a statement made by Roberto Brenes in Miami, where he had been sent by force, published in the Estrella de Panama on 23 December; in so doing, he was exercising his right of reply to a communication by the police published in this newspaper, according to which he had voluntarily accepted to go into exile.
7. 254. The IOE concludes by stating that the actions listed above show the determination of the Government of Panama to intimidate and destroy CONEP and its affiliated organisations, without any consideration for the legal system and judicial guarantees that exist "only in theory" in Panama today.

C. The Government's reply

1. 255. First, the Government refers to its previous statements to the effect that under Executive Decree No. 91 of 1987 and Act No. 2 of 5 January 1988, amnesty was granted for several political crimes committed between 1 July and 24 December 1987; this resulted in the lifting of charges against leaders of employers' associations amd directors of communications media who made up, amongst others, the politically inclined group "National Civilian Crusade" and who had committed criminal offences. Under this Amnesty Act, the equipment and other goods seized by the various branches of the Public Prosecutor's Office were ordered to be returned. Both pieces of legislation were intended to demonstrate the State's concern to achieve a climate of peace and tranquility, thus creating a favourable environment for investment and development from which a sound and efficient private firm might benefit, in accordance with the objectives laid down in the Constitution. Nothwithstanding the above-mentioned government initiative, the persons and associations grouped in the so-called "National Civilian Crusade", a movement of a strictly political nature, continued to carry on with its criminal activities aimed at breaching the peace, transgressing the Penal Code and paralysing the country's economic and trade activities; a group of employers' leaders were directly involved in these activities and, to achieve their purposes, they used equipment and materials at the headquarters of their organisations as well as various communication media in order to overthrow the legally constituted Government and disrupt the constitutional system. As a result of this, preliminary proceedings were initiated, by means of various judicial ations taken by the competent authorities, to determine exactly the crimes committed and those responsible for them, always respecting the principles laid down in the Constitution and in the law. In this context, preventive detention orders were issued (section 2148 of the Judicial Code) and measures taken to safeguard the objects under inquiry (section 2185 of the Judicial Code concerning the search of premises and confiscation of goods used in a criminal offence).
2. 256. The standards infringed are contained in sections 301, 306 and 372 of the Penal Code which read as follows:
   • Section 301: Any person who encourages or directs an armed uprising to overthrow the legally constituted national Government or to change by violent means the political Constitution shall be punished by imprisonment of 15 to 20 years and disqualified from exercising public office for a like period of time.
   • Section 306: Any person who in a public place or through the press, radio, television or any other means incites to rebellion, sedition or riot, shall be punished by imprisonment of between six months and two years and fined between twenty and one hundred days' wages.
   • Section 372: Any person who through the press or any other means of information disseminates false, exaggerated or tendentious news or propagates rumours which jeopardise the national economy or undermine confidence in the State shall be punished by imprisonment of between six months and three years. If as a result of the previously described actions, there is a depreciation in the national currency or deterioration in the values of state bonds, the penalty shall be doubled.
3. 257. The Government stresses that in this case, crimes under the ordinary law were committed against the internal integrity of the State and the national economy; in no event was there infringement of freedom of association. The judicial steps taken were not intended, at any time, to affect the rights and guarantees of the employers' organisations.
4. 258. In more precise terms, the Government states that the Public Prosecutor of the First Circuit Court is conducting initial proceedings to investigate crimes against the internal integrity of the State and the national eonomy, in which it appears that many people are involved who are engaged in the activities of the group known as the "National Civilian Crusade". This group has objectives of a purely political nature and has repeatedly been involved in activities designed to disrupt the constitutional system. Several steps were deemed necessary to determine whether or not any such crimes had been committed or to identify who committed or took part in them; these included the searching of the premises, during which several items and instruments used in the crimes committed were discovered, and the preventive detention of several people. Alberto Bolívar Conte was amongst those ordered to be arrested in accordance with the procedures laid down by law. He benefited from bail to obtain conditional release but was re-arrested when he committed another punishable act, thereby forfeiting his right. Furthermore, arrest warrants were issued on Eduardo Vallarino, Aurelio Barria, Gilberto Mallol, César Tribaldos, Rafael Zúñiga and Roberto Brenes. Although there was serious evidence against these persons, they requested bail in order to be released and were granted this right. Similarly, they requested permission to leave the country and go abroad to see to their commercial activities; consequently, their files have remained for a long period of time in the competent judicial office. It is for this reason that, to date, their juridical situation within the initial proceedings has not yet been determined.
5. 259. The Government continues by stating that the Deputy Public Prosecutor of the Attorney General's Office is also conducting initial proceedings to investigate the criminal offences of usurpation of public offices and undermining the internal integrity of the State. Kaiser Dominador Bazán is amongst those linked to such criminal actions. After having made an unsworn statement, during which he enjoyed his constitutional and legal rights in full, he admitted that he had played a direct role in the actions under investigation, upon which the investigating official ordered his arrest. At present he is not detained because he immediately applied for bail.
6. 260. As regards the other arrests of employers' leaders, the Government states that according to the Public Prosecutor of the Eighth Instance of the First Circuit Court of the Province of Panama (entrusted with carrying out the investigation on crimes committed by persons belonging to the so-called "National Civilian Crusade"), there was evidence that crimes had been committed against the internal integrity of the State and security of the national economy and that Alberto Boyd and Carlos Ernesto de la Lastra, leaders of employers' organisations, were involved in these crimes. Consequently, their preventive detention was ordered in accordance with procedures laid down by law, although they successfully applied for bail.
7. 261. From the documentation provided by the Government, which comes from the Public Prosecutor's Office, it may be inferred:
8. (1) that the National Council of Private Enterprises is a member of the "National Civilian Crusade" and belongs to its Executive Committee;
9. (2) that at least several warrants for arrest (in any case that of Alberto Boyd) were issued against persons suspected of having had a part in drafting a document entitled "Proposal for a programme of transition to democracy" which was distributed in the street and published in the press; the name "National Civilian Crusade" appeared on the lower part of the document;
10. (3) that the above-mentioned "Proposal" proposed, amongst other measures, the setting up of a provisional Government Junta, composed of one member appointed by the opposition political parties and two members appointed by the National Civilian Crusade and advocated that the Legislative Assembly should cease functioning and that the judicial system and Public Prosecutor's Office should be restructured;
11. (4) that articles in the newspapers La Prensa and Siglo, dated 25, 26 and 27 January 1988 (which it is assumed were written by the Executive of the National Civilian Crusade) incited the Panamanian people as a whole not to pay taxes and to delay paying for public services provided by government institutions.
    • The Government also encloses a letter from the Confederation of Workers of the Republic of Panama, dated 29 September 1988, in which this organisation puts on record its rejection of the smear campaign being carried out internationally by the employers' organisations who are claiming that employers' associations are victims of the Panamanian crisis.

D. The Committee's conclusions

1. 262. The Committee notes that in the present case, which it is examining for the third time, the allegations basically refer to the arrest and prosecution of employers' leaders, the deportation of an employers' leader, the continued occupation of the headquarters of two employers' organisations, the closure of major communications media and violent acts perpetrated or tolerated by the police against employers' leaders in 1987. In its latest replies, the Government has pointed out generally that: (1) the present case is involved with crimes under the ordinary law against the internal integrity of the State and the national economy, which prompted preventive detentions and proceedings; (2) that apart from Alberto Conte, the employers' leaders concerned were released on bail and even able to travel outside the country; (3) that the arrests, searches and confiscation of goods which occurred were in accordance with current criminal procedures; (4) that certain communication media had incited the population not to pay taxes and to delay paying for public services; (5) that in spite of the Government initiative, culminating in the Amnesty Act of 5 January 1988, which benefited, amongst others, the employers' leaders, people and associations grouped in the so-called "National Civilian Crusade", which the Government alleges to be a movement of a strictly political nature, criminal actions to disrupt public law and order, transgress regulations in the Penal Code and paralyse the country's economic and commercial activities continued; furthermore, a group of employers' leaders were directly involved in these actions and, in order to further their aims, they used equipment and material housed in the headquarters of these organisations, as well as various communications media, with a view to overthrowing the legally constituted Government and disrupting the constitutional order.
2. 263. The Committee wishes to refer to the conclusions it reached at its May 1988 meeting:
   • While the Committee takes note of the Government's statements relating to the political objectives of the organisation known as the National Civilian Crusade, it wishes to point out
   • ... 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 Civilian Crusade have hampered the exercise of the rights of employers' organisations and their leaders. In this respect, the Committee deeply regrets that in spite of its repeated requests, the Government has not sent detailed information on the specific acts which, in each case, led to the proceedings against the employers' leaders, Eduardo Vallarino, Aurelio Barria, Gilberto Mallol, César Tribaldos, Rafael Zúñiga, Roberto Brenes, Carlos Ernesto de la Lastra, Kaiser Dominador Bazán and Alberto Boyd, and on the stage reached in the proceedings. The Committee does not have this information at its disposal in spite of the fact that in most cases the prosecutions date back about one year. The Committee stresses that respect for due process of law should not preclude the possibility of a fair and rapid trial and that, on the contrary, an excessive delay may intimidate the employers' leaders concerned, thus having repercussions on the exercise of their activities.
3. 264. As regards the continued occupation of the headquarters of the Chamber of Commerce and the Trade Union of Industrialists of Panama by the army, the Committee regrets that the Government merely stated in a general way that the employers' leaders under investigation used equipment and material housed in the headquarters of their organisations with a view to overthrowing the Government and disrupting the constitutional order. In this respect, the Committee points out that the headquarters of the Chamber of Commerce and the Trade Union of Industrialists of Panama are still occupied by the army and have been since 25 February and 25 April 1988, respectively. Given that the occupation of these premises deprives the organisations concerned of basic means whereby they may carry out their normal activities and in view of the time that has elapsed since the army first occupied these headquarters (about a year), the Committee is of the opinion that this occupation should come to an end immediately and that the goods confiscated should be returned and it urges the Government to take steps in this respect.
4. 265. Furthermore, although the Committee infers from the Government's statements that the closure of the newspapers La Prensa and Siglo was on account of articles published on 25, 26 and 27 January 1988 (supposedly drafted by the Executive of the National Civilian Crusade), inciting the population not to pay taxes and to delay paying for public services, it regrets that the Government has not provided specific information on the closure of each of the other communications media mentioned by the complainant organisation (newspapers Quiubo and Extra, radio stations La Exitosa, Continente and Mundial and the Canal V television channel). The Committee stresses that these communications media were closed down several months ago and expresses the hope that they will recommence normal operations in the very near future. The Committee draws the Government's attention to the fact that the right of workers' and employers' organisations to express their views in the press or through other media is one of the essential elements of freedom of association and that consequently governments should refrain from unduly impeding its lawful exercise (see, for example, 261st Report, Case Nos. 1129, 1298, 1344, 1442, and 1454 (Nicaragua), para. 36).
5. 266. Finally, the Committee notes that the Government failed to reply to certain other allegations: the breaking into, searching, confiscation of goods and closure of the enterprise of the employers' leader Alberto Conte, who was arrested and refused authorisation to confer in private with his lawyer; the deportation of the employers' leader, Roberto Brenes; the arrest and fining of the journalist Alcides Rodríguez whilst he was photographing the release of two employers' leaders; violent acts perpetrated or tolerated by the police against leaders of the Chamber of Commerce and their enterprises in June and July 1987.