Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 330, Mars 2003

1. 959. The Committee examined this case at its meeting in March 2002 and presented a provisional report [see 327th Report, paras. 705-737, approved by the Governing Body at its 283rd Session (March 2002)].
2. 960. The National Federation of Associations and Organizations of Public Servants (FENASEP) sent additional information in a communication dated 31 May 2002. The Government replied in a communication dated 24 September 2002.
3. 961. Panama has ratified 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. 962. At its meeting in March 2002, the Committee drew up the following conclusions and recommendations on the questions that remained pending [see 337th Report, paras. 732-736]:
2. – The Committee notes that in this case the complainant organization alleges that 44 trade union leaders have been dismissed in the context of the mass dismissal of thousands of public servants for partisan political reasons following the change of government in September 1999.
3. – The Committee takes note of the Government’s statements to the effect that: (1) the outgoing Government had improperly granted permanent appointments to 5,634 public servants during the transition period; (2) it had therefore issued resolution No. 122 dated 27 October 1999, temporarily suspending access to permanent appointments, and ordered an overhaul of the system; once that had been attained, it then issued resolution No. 50 dated 6 July 2001, which rendered null and void the decision adopted in resolution No. 122 to the effect that public servants who met the minimum requirements could be accredited as permanently appointed public servants; (3) those subjected to dismissal or “removal of accreditation” (i.e. whose permanent appointment was cancelled even though they remained in their posts) had remedies at their disposal and many had obtained rulings in their favour; and (4) the Government had needed to take corrective action in order to ensure that those who were accredited met the minimum legal requirements (length of service, educational qualifications, etc.) and in fact it had transpired that a large number of accreditations had been made improperly.
4. – Although it has taken note of the Government’s statements, the Committee must draw attention to the danger of unfairness inherent in mass dismissals of public servants and regrets that 44 trade union leaders have been dismissed without any preliminary procedures being followed, which is contrary to the provisions of section 118 of Decree No. 222 which requires that a dismissal be done on fair motives, that a preliminary procedure is respected and that a rapid investigation be undertaken with the possibility for the dismissed worker to defend himself. Given the serious impact of these decisions on the exercise of trade union rights, the Committee requests the Government to promote the reinstatement of the trade union leaders in their posts inasmuch as they meet the legal requirements for permanent appointment and inform it of procedures undertaken since the dismissals.
5. – Lastly, the Committee requests the Government to send its observations on the allegations relating to the criminal charges against the trade union officer, Mr. Alberto Ibarra.
6. B. Additional information from the complainant
7. 963. In its communication dated 31 May 2002, the complainant states that, up to May 1999, approximately 6,000 public servants had been accredited. In total, some 2,500 public servants were excluded from permanent appointments, and about 1,000 of these were dismissed. Between September 1999 and May 2002 more than 19,000 public servants were dismissed without just cause.
8. 964. The complainant reports that the judicial authorities are severely delaying decisions on reinstatement and have issued five reinstatement orders in only about 500 cases; in some 250 cases they found against the public servants and in favour of the state institutions concerned.
9. 965. The complainant adds that the list of union officers dismissed has grown since the complaint was presented to the Committee (a list of 16 names is attached).
10. 966. In addition, resolution No. 122 was the subject of legal and constitutional appeals. The former action resulted in an inhibitory ruling, on the grounds that the resolution had been rendered null and void by resolution No. 50 dated 6 July 2001. The constitutional appeal is still pending.
11. 967. None of the 44 union officers referred to in the Committee’s recommendations has been reinstated.
12. 968. Lastly, the complainant points out that the Government has so far given no reply regarding the criminal case brought against the union officer Mr. Alberto Ibarra, who has been charged with “offences against honour”, under a ruling given on 30 October 2001 by the 11th Criminal Circuit Court of the 1st Judicial Circuit of Panama; the lack of independence of the judicial authority in this case is worrying, given that its subordination to the executive body is a matter of public knowledge.
13. C. The Government’s reply
14. 969. In its communication dated 24 September 2002, the Government recalls that, in its previous reply, it had given clear details of everything connected with permanent appointments under the terms of Act No. 9 of 20 June 1994 and Decree No. 222 of 12 September 1997 approving the Regulations for permanent appointments in the Republic of Panama. In this reply, the Government explained to the Committee the legal concepts of public servants in office and public servants appointed by free nomination and transfer, as laid down in Act No. 9 of 20 June 1994, which “establishes and regulates permanent appointments”. They are: (1) public servants in office: “those who, at the date of entry into force of this Act and its Regulations, occupied a public post classified as permanent, until such time as they obtain, through the established procedures, the status of permanently appointed public servants, or are discharged from public service”; (2) public servants appointed by free nomination and transfer: “those who provide secretarial, consultative, auxiliary or other services assigned directly to public servants, who are not part of any permanent appointments system and, by the nature of their functions, are appointed on the basis of the confidence of their superiors, the loss of that confidence entailing the loss of the post occupied by them”. In the reply quoted, it was stated that all personnel actions had been carried out in accordance with due process, ensuring the constitutional and legal guarantees for the public servants who were the subject of these actions.
15. 970. With regard to the 44 people mentioned by FENASEP as union officers, the Government states that, of the documents submitted, it has not found any which accredit their status as union officers. By contrast, in the Republic of Panama, no trade union has that number of members on its executive, and the information submitted in the complaint is therefore at odds with reality. The Ministry of Labour and Development (MITRADEL) proceeded to make inquiries in order to determine whether the people included in FENASEP’s complaint were protected under the permanent appointments system and, if they were so protected, whether they had fulfilled the legal requirements for a public servant to be included in the said system, and whether the dismissals had been carried out in accordance with due process. Their inquiries concluded that none of the 44 people mentioned as “supposed union officers” had legally entered the permanent appointments system. On the other hand, it has been reliably established that all personnel actions concerning the 44 people were carried out legally and in accordance with due process. In the majority of cases the interested parties, exercising the right to defence, went through review and appeals procedures, which were decided in strict accordance with the law. The Government details all 44 cases in an extensive communication, giving the various decisions made and administrative processes involved for each case.
16. 971. In view of this, the Government stresses that the Republic of Panama has complied with legislation and, as such, cannot legally reinstate any of the 44 people named in FENASEP’s complaint.
17. 972. With regard to the allegations made concerning the criminal charges brought against the union officer Mr. Alberto Ibarra, the Government states that, having been dismissed for prolonged unjustified absence from his post, and his dismissal having been confirmed by a body which guaranteed due administrative process, he dedicated himself to making public declarations against the National Institute of Culture (INAC), specifically against the honour, dignity, decorum and good name of certain public servants. Those insulted namely Hugo Eliécer Bonilla (Directorate of Legal Assessment), José Angel Samaniego Amaya (Treasury Department) and Edwin Cedeño (National Arts Directorate), consequently brought criminal charges against Alberto Ibarra for “offences against honour”. In accordance with a decision by the 7th Circuit Public Prosecutor of the Office of the National Attorney-General, Mr. Alberto Ibarra Mina was taken to court for alleged infractions of rules laid down in Book Two, Title III, Chapter I, of the Penal Code, i.e. Offences Against Honour in accordance with section 2222 of the Judicial Code. The 11th Criminal Circuit Judge of the 1st Judicial Circuit of Panama, who attended the case, opened proceedings against Alberto Ibarra Mina for alleged infractions of criminal laws laid down in Chapter I, Title III, of Book Two of the Penal Code. Following the preliminary hearing, she considered there to be sufficient evidence to proceed with the charges against the accused, and set the date for the next hearing for April 2003.

D. The Committee’s conclusions

1. 973. With regard to the alleged dismissal of 44 union officers, the Committee takes note that, according to new allegations from the complainant, 16 further dismissals of union officers have taken place. The Committee takes note of the Government’s statements concerning the dismissal of 44 union officers, in particular that: (1) the figure of 44 union officers is at odds with reality and the complainant has not accredited their status as union officers; (2) the people in question had not legally entered the permanent appointments system; (3) the dismissals were carried out legally and in accordance with due process and the majority of the interested parties went through review and appeals procedures on which rulings have been given; (4) having complied with legislation, the authorities cannot legally reinstate any of the 44 people in their posts. The Committee also notes that, according to the complainant, the judicial authorities have ruled on only 250 cases (a total of 500 cases in which reinstatement was requested).
2. 974. The Committee refers to its previous conclusions in the present case regarding the allegations of dismissal of union officers in the context of mass dismissals of public servants for partisan political reasons, which have affected thousands of public servants since the new Government took over (September 1999). The Committee drew attention to the danger of unfairness inherent in mass dismissals of public servants [see 327th Report, para. 734] and concentrated its recommendations on the 44 union officers. The Committee notes that the Government in its reply claims that the 44 officers had benefited from due administrative process, that the complainant has reported that the judicial processes relating to 250 public servants have not been concluded, and that 16 further union officers have been dismissed. The Government objects to the classification of so many of the 44 people in question as “union officers”, but has not indicated whether legal proceedings are under way in this respect. For its part, the Committee cannot exclude the possibility of some or all of the dismissals being related to the exercise of union rights, even in the context of mass dismissals of public servants.
3. 975. Under these circumstances, the Committee requests the Government to examine the possibility of offering new posts to the union officers dismissed. Given that the Government and the complainant disagree about the union officer status applied to the 60 people dismissed (44 in the first instance and a further 16 subsequently), the Committee emphasizes that it is to the complainant to demonstrate their status as union officers during such negotiations. The Committee requests the Government to keep it informed in this respect.
4. 976. Lastly, with regard to the criminal trial of the union officer Mr. Alberto Ibarra for offences against honour (section 2222 of the Judicial Code) against three public servants at INAC, the Committee notes that Mr. Ibarra has been summoned to appear in court and a judicial hearing is due to take place in April 2003. The Committee requests the Government to send it a copy of the ruling.