Rapport intérimaire - Rapport No. 351, Novembre 2008

1. 1180. The Committee already examined the substance of this case at its May–June 2007 meeting, when it presented an interim report to the Governing Body [346th Report,
   • paras 1429–1462 approved by the Governing Body at its 299th Session (June 2007)].
2. 1181. The Government provided its observations in communications dated 31 August 2007, and 9 and 16 January 2008.
3. 1182. The Philippines 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. 1183. At its June 2007 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee deplores the gravity of the allegations made in this case and the fact that more than a decade after the filing of the last complaint on similar allegations, inadequate progress has been made by the Government with regard to putting an end to killings, abductions, disappearances and other serious human rights violations which can only reinforce a climate of violence and insecurity and have an extremely damaging effect on the exercise of trade union rights.
   • (b) The Committee requests the Government to:
   • (i) keep it informed of the progress of the investigation to be carried out by the special joint fact-finding body concerning the killings of trade union leaders and members and, in particular, steps taken to investigate the murders alleged by the complainant which are listed in Appendix I. The Committee firmly trusts that the investigation and trials will proceed without delay and in full independence, so that all responsible parties may be identified and punished before the competent courts as soon as possible and a climate of impunity be avoided;
   • (ii) establish an independent judicial inquiry and proceedings before the competent courts as soon as possible with regard to the allegations of abductions and disappearances of trade union leaders and members which are listed in Appendix II with a view to shedding full light onto the relevant facts and circumstances, and to determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events;
   • (iii) keep it informed of progress made in this respect.
   • (c) Noting that the Government is under a responsibility to take all necessary measures to have the guilty parties identified and punished – in particular by ensuring that witnesses, who are crucial for the successful identification and prosecution of suspects, are effectively protected – and to successfully prevent the repetition of human rights violations, the Committee requests the Government to take all necessary measures without delay to ensure full implementation of the recommendations of the Melo Commission with regard to: (i) the reinforcement of the Witness Protection Program; (ii) legislation to require police and military forces and other government officials to maintain strict chain-of-command responsibility with respect to extrajudicial killings and other offences committed by personnel under their command, control or authority; and (iii) orientation and training of the armed forces.
   • (d) Deeply regretting the involvement of the army and police in ending the strike in the Hacienda Luisita incident which claimed the lives of at least seven trade union leaders and members and led to the injury of 70 others, the Committee requests the Government to take all necessary measures so as to have an independent investigation carried out into this incident, with a view to identifying and punishing those responsible without further delay. It also requests the Government to give adequate instructions to the law enforcement authorities so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations. The Committee requests to be kept informed in this respect.
   • (e) Expressing concern at the prolonged presence of the army inside workplaces which is liable to have an intimidating effect on the workers wishing to engage in trade union activities and to create an atmosphere of mistrust which is hardly conducive to harmonious industrial relations, the Committee requests the Government to take measures, including the issuance of appropriate instructions, to bring to an end prolonged military presence inside workplaces.
   • (f) The Committee requests the Government to give appropriate instructions so as to ensure that any emergency measures aimed at national security do not prevent in any way the exercise of legitimate trade union rights and activities, including strikes, by all trade unions irrespective of their philosophical or political orientation, in a climate of complete security. The Committee requests to be kept informed in this respect.
   • (g) The Committee requests the Government to give specific instructions without delay so as to ensure the strict observance of due process guarantees in the context of any surveillance and interrogation operations by the army and police in a way that guarantees that the rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations. The Committee requests to be kept informed in this respect.
   • (h) The Committee requests the Government to provide its comments in respect of the allegations of harassment and intimidation of trade union leaders and members affiliated to the KMU.
   • (i) The Committee requests the Government to communicate the texts of any judgements handed down in the cases of Crispin Beltran, long-time KMU leader, as well as five members of the NNFSW who were arrested, and to ensure that all relevant information is gathered in an independent manner so as to shed full light on their situation and the circumstances surrounding their arrest. Should it be determined by the court that they were arrested in relation to their trade union activities, the Committee requests the Government to take the necessary measures to ensure that they are immediately released.

B. The Government’s reply

1. 1184. In its communications dated 31 August 2007 and 9 and 16 January 2008, the Government indicates at the outset, that it wishes to draw the Committee’s attention to the fact that, as recent developments show, there is practically an undeclared war being waged in the Philippines. The Armed Forces of the Philippines is presently engaged in a battle with the bandit Abu Sayyaf Group – that has joined forces with the international terrorist group Jema’ah Islamiyah – in the country’s southern provinces of Basilan and Jolo. This conflict has ripple effects on the whole country particularly in the island of Mindanao. Separately from but in tandem with this conflict is the threat of attacks from breakaway groups of the Moro Islamic Liberation Front (MILF) and Moro National Liberation Front (MA/LP). The recent examples of how grave these problems have become is the recent kidnapping of Fr Bossi (an Italian missionary from Milan), and the killing of 56 Philippine soldiers (with many more gravely wounded) all in a span of one month. Also, the Communist Party of the Philippines – National People’s Army (CPP–NPA) continues to attack military and police units all over the country. CPP–NPA Chairperson Jose Ma. Sison was recently arrested in the Netherlands for two counts of murder – killings which heretofore have been labelled as extrajudicial killings imputed on the Government. It is under this environment that the allegations of killings of trade unionists were made by the KMU, the labour group closely identified with the CPP–NPA.
2. 1185. The Government highlights the distinction that should be made between legitimate trade union activities entitled to lawful protection and the commission of crimes against the State that the State has the right to prevent. The current war against communist insurgents is a six-decade rebellion by those who wish to seize power from the Government. The war has been waged on many fronts and labour is the most prominent of them because the communist movement is rooted in the labour movement. Thus, the Philippine Government has been faced with the dilemma of handling people wearing two hats, one of them illegitimate utilized purely for revolutionary ends. To be sure, the Government cannot vacillate in dealing with those who have stepped beyond the line of legitimacy.
3. 1186. The Government adds that, to state its position clearly, the Philippine police and the military pursue only trade unionists committing rebellion and not trade unionists exercising trade union rights. Where a trade unionist crosses the dividing line between rebellion and legitimate trade union activity, then there should be no question about the legitimacy of the police or military action, provided the action was done in accordance with the Constitution and the laws.
4. 1187. The Government also invites the Committee’s attention to the fact that Karapatan’s outline or listing of the cases of supposed extrajudicial killings of trade unionists and media practitioners – upon which the KMU’s complaint is partly based – is not strictly accurate. At least five of the supposed 836 victims are actually alive. Also, many of the cases in fact involve private crimes that do not relate at all to trade union rights and advocacies.
5. 1188. The Government also provides an update on the status of some of the 39 murders and nine incidents of enforced disappearances listed in Appendices I and II of the Committee’s previous examination of this case. With regard to steps taken to investigate the 39 murders, the Government indicates that three cases have been attributed to the police, army or local officials and criminal proceedings are pending. Specifically, a policeman has been charged with the murder of Angelito Mabansag, two army privates have been charged with the murder of Ricardo Ramos, President of Central Azucarera de Tarlac Labor Union (CATLU; one of the unions in the Hacienda Luisita incident); and a Barangay Captain as well as two Barangay tanods have been accused with the murder of Dante Teotino. Furthermore, a criminal case was brought against police and army officers for the murder of Samuel Bandilla and the injury of Engr. Bernardo Devaras but was dismissed by the Prosecutor for insufficiency of evidence; the dismissal was later confirmed by the Department of Justice.
6. 1189. In seven cases, the suspects identified were not related to the army or the police (Rommel Arcilla, Melita Carvajal, Mario Fernandez, Abelardo Ladera, Jimmy Legaspi, Rolando Mariano y Thalla, Ramon Namuro, Victoria Samonte and Albert Teredano). Criminal proceedings are pending in four of these cases against those accused of the murder of Jimmy Legaspi, Rolando Mariano y Thalla, Ramon Namuro and Rommel Arcilla. Those suspected of the murder of Mario Fernandez and Albert Teredano were killed in shoot-outs linked to crime syndicates. Furthermore, proceedings for determination of the propriety of filing a criminal case in court against the suspected killer of Abelardo Ladera is pending before the Office of the Prosecutor.
7. 1190. In six cases, the relatives of the victims or eye witnesses refused to testify or declared that they did not wish to pursue the matter; thus, the investigation has not advanced (Felipe Lapa, Edwin Bargamento, Manuel Batolina, Ronnie Almoete, Federico de Leon, Dionesio Halim).
8. 1191. In ten cases, the investigation is still under way (Jessie Alcantara, Nilo Bayas, Ryan Cabrigas, Florante Collantes y Ballon, Engr. Dalmacio Cepeda, Noel Daray, Samuel Dote, Diosdado Fortuna, Benedicto Gabon, Erol Sending y Chavez). With regard to Diosdado Fortuna, President of the Union at Nestlé, Cabuayo, an update prepared by the Presidential Human Rights Committee (annexed by the Government to its reply), indicates that the case of Diosdado Fortuna has been archived. According to the Government, there is no indication as to the perpetrators despite the fact that the police has formed an ad hoc investigation unit, the issue is followed up by the Presidential Human Rights Committee and the Commission on Human Rights has launched its own investigation.
9. 1192. On the nine incidents of enforced disappearances, the Government provides the following information: (i) on Rogelio Concepcion, who was allegedly abducted by elements of the 24th Infantry Division on 6 March 2006, the Government indicates that the case is being monitored by the Presidential Human Rights Committee; (ii) on the alleged assault, torture and abduction of Virgilio and Teresita Calilap, Bernabe Mendiola and Oscar Leuterio on 17 April 2006, the Government indicates that they were probably abducted by communist terrorists and not the army and that the DOLE Regional Office No. III reported that they have returned home although the police has no record of their return as they never bothered to check in with the police authorities; (iii) with regard to Emerito Gonzales Lipio and William Aguilar who were allegedly abducted on 3 July 2006, the Government indicates that they were not abducted but arrested along with five other individuals. Four of the seven arrested individuals had been caught carrying illegal explosives. Aguilar and Lipio were later released.
10. 1193. On the Hacienda Luisita victims, the Government recalls that according to the allegations, one of the victims – Jessie Valdez – was shot in the thigh during the dispersal at Hacienda Luisita, but the military, instead of bringing him to the hospital, brought him to a military camp where he died of blood loss. It indicates that investigation of the Hacienda Luisita incident disclosed that the ranks of the rallyists had been infiltrated. Of the seven casualties, one is listed in the Order of Battle of the Tarlac PNP as a member of the CPP/NPA; three of them were found positive for gunpowder burns based on conducted paraffin tests by the PNP crime laboratory. Of the 110 persons arrested at the scene, only seven were workers of Hacienda Luisita. Of the 36 PNP personnel involved in the dispersal operation who were subjected to paraffin tests, nine were found positive for powder burns and have been recommended to be charged by the NBI for multiple homicide. The Presidential Human Rights Committee (PHRC, a cabinet-level committee under the Office of the President) is presently monitoring the progress of the case and inquiring into the specific case of Jessie Valdez.
11. 1194. The Government adds that the Department of Labor is closely coordinating with law enforcement agencies – specifically, Task Force Usig of the Philippine National Police – and the Department’s own regional offices on the status of the other cases of alleged murders and abductions or enforced disappearances. Updates shall be transmitted on these cases as soon as they are available. The Philippine Government is continuously stepping up on efforts to solve all these cases.
12. 1195. All branches of the Philippine Government are in fact involved in finding solutions to the issue. Quite recently and in an unprecedented move, the Supreme Court hosted a multi-sector summit on extrajudicial killings and enforced disappearances with representatives from all sectors of society as participants. The Government attaches the Summary of Recommendations of the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances: Searching for solutions (National Consultative Summit), which took place on 16–17 July 2007 in Manilla. It further indicates that a significant part of the agenda – as it relates to the High Court – was the proposal to address whatever insufficiencies there may be in the present procedural rule on habeas corpus, with the end in view of providing more protection and safeguards to the people’s constitutional rights. The latest report is that the Supreme Court is ready to announce its rule for the compulsory production of data, as a companion measure to the habeas corpus remedy, to ensure that investigations will succeed. These moves are in addition to the High Court’s earlier designation of special courts to hear and decide – with special priority and dispatch – cases of extrajudicial killings.
13. 1196. Some other concerns are being addressed by the recently convened 14th Congress. There are now pending bills or legislative proposals to amend the Witness Protection, Security and Benefit Act and/or to provide stiffer penalties for extrajudicial killings – a proposed bill entitled An Act Qualifying Salvaging or Extrajudicial Killing by Any Public Officer, Person in Authority or Agent of a Person in Authority as a Heinous Crime, Imposing the Death Penalty Therefore.
14. 1197. The Government also attaches the High Court’s decision in the case of Crispin Beltran so as to clearly show that his arrest is unrelated, in any manner whatsoever, with his role as a trade union leader. For the Committee’s information, Beltran is now beyond being a trade union leader; he is a politician who acts more in the political arena rather than on the labour front.
15. 1198. The Government assures the Committee that a healthy environment or atmosphere for trade unionism presently pervades in the country. There is a relative industrial peace with only three strikes declared since January 2007; for every 93 notices of strikes/lockouts filed, only one materialized into an actual work stoppage. Work normalization rate is at 100 per cent since all these strike cases have been settled or resolved. The Government acknowledges that the current labour relations situation is not as perfect or as ideal as it or the Committee would want it to be, but it definitely is not as bad as the complainant KMU wants to portray or impress on the Committee. The successes achieved so far with the ILO’s help in promoting labour relations peace and decent work are gains the Government is very proud of. It hopes these will not be negated by taking as established truths and acting on unsubstantiated imputations and reports of government excesses, and by refusing to acknowledge the current environment under which the Philippine Government operates.

C. The Committee’s conclusions

1. 1199. The Committee acknowledges the information provided by the Government.
2. 1200. The Committee recalls that the present case concerns the following allegations: (i) summary killings of 39 trade union leaders, members, union organizers and supporters and informal workers from 2001 to 2006; (ii) nine incidents of abduction and enforced disappearances of trade union leaders, members, union organizers and supporters and informal workers committed by elements of the military and police from January 2001 to June 2006; (iii) harassment, intimidation and grave threats by the military and police forces against trade union leaders, members, union organizers and supporters and informal workers; (iv) militarization of workplaces in strike-bound companies or where a labour dispute exists and where existing unions or unions being organized are considered progressive or militant, by means of establishing military detachments and/or deployment of police and military elements under the pretext of counter-insurgency operations; and  (v) arrest and detention of and subsequent filing of criminal charges against trade union leaders, members, union organizers and supporters and informal workers due to their involvement and active participation in legitimate economic and political activities of trade unions and informal workers’ associations.
3. 1201. The Committee once again recalls that this is the third complaint filed before it with regard to very serious allegations of murders, abductions, disappearances, attacks on picket lines and illegal arrests in the Philippines [Case No. 1572, 292nd Report, paras 297–312 and Case No. 1444, 279th Report, paras 544–562]. During the previous examination of this case, the Committee deplored the gravity of the allegations and the fact that more than a decade after the filing of the last complaint on similar allegations, inadequate progress had been made by the Government with regard to putting an end to killings, abductions, disappearances and other serious human rights violations which could only reinforce a climate of violence and insecurity and have an extremely damaging effect on the exercise of trade union rights [346th Report, para. 1437].
4. 1202. The Committee notes the general observations made by the Government with regard to this case, in particular as regards the distinction between legitimate trade union activities entitled to lawful protection and the commission of crimes against the State, which the State has the right to prevent. The Government emphasizes that an undeclared war is being waged in the Philippines by various groups. The Communist Party of the Philippines – National People’s Army (CPP–NPA) continues to attack military and police units all over the country. CPP–NPA Chairperson Jose Ma. Sison was recently arrested in the Netherlands for two counts of murder – killings which heretofore had been labelled as “extrajudicial” killings imputed on the Government. It is under this environment that the allegations of killings of trade unionists were made by the complainant KMU, the labour group closely identified with the CPP–NPA. The Government adds that the current war against communist insurgents is a six-decade rebellion by those who wish to seize power from the Government; the war has been waged on many fronts and labour is the most prominent of them, because the communist movement is rooted in the labour movement. Thus, the Government has been faced with the dilemma of handling people wearing two hats, one of them illegitimate utilized purely for revolutionary ends. The Government indicates that, to state its position clearly, the Philippine police and the military pursue only trade unionists committing rebellion and not trade unionists exercising trade union rights. Where a trade unionist crosses the dividing line between rebellion and legitimate trade union activity, then there should be no question about the legitimacy of the police or military action, provided the action was done in accordance with the Constitution and the laws.
5. 1203. The Committee wishes to emphasize that the right to life is a fundamental prerequisite for the exercise of the rights contained in Convention No. 87 [Digest of Decisions and Principles of the Freedom of Association Committee, para. 42] ratified by the Philippines. A climate of violence, such as that surrounding the murder or disappearance of trade union leaders, or one in which the premises and property of workers and employers are attacked, constitutes a serious obstacle to the exercise of trade union rights; such acts require severe measures to be taken by the authoritie. [Digest, op. cit., para. 46]. The Committee has on numerous occasions emphasized that the killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events [Digest, op. cit., para. 48]. It has also underlined that facts imputable to individuals bring into play the State’s responsibility owing to the State’s obligation to prevent violations of human rights. Consequently, governments should endeavour to meet their obligations regarding the respect of individual rights and freedoms, as well as their obligation to guarantee the right to life of trade unionists [Digest, op. cit., para. 47].
6. 1204. The Committee emphasizes that persons engaged in trade union activities, or holding trade union office, cannot claim immunity in respect of the criminal law. It recalls that governments have a duty to defend a social climate where respect for the law reigns as the only way of guaranteeing respect for and protection of individuals and that all appropriate measures should be taken to guarantee that, irrespective of trade union affiliation, trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind [Digest, op. cit., paras 34 and 35]. While duly taking into account the Government’s affirmation that “the Philippine police and the military pursue only trade unionists committing rebellion and not trade unionists exercising trade union rights”, the Committee recalls the findings of the Independent Commission to Address Media and Activist Killings (Melo Commission) of 22 January 2007, to the effect that “there is certainly evidence pointing the finger of suspicion at some elements and personalities in the armed forces” as well as its recommendation for a “strong political condemnation of the killings by the Government and the President in particular”. The Committee also takes note of the report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions of 16 April 2008, according to which: “[t]he military is in a state of denial concerning the numerous extrajudicial executions in which its soldiers are implicated” [doc. A/HRC/8/3/Add 2, page 2 and para. 28] as well as the recommendation of the UN Special Rapporteur that “[a]s Commander-in-Chief of the armed forces, the President must take concrete steps to put an end to those aspects of counterinsurgency operations which have led to the targeting and execution of many individuals working with civil society organizations” [doc. A/HRC/8/3/Add.2, para. 67].
7. 1205. The Committee recalls that the Committee of Experts on the Application of Conventions and Recommendations has emphasized that the freedom of association Conventions do not contain any provision permitting derogation from the obligations arising under the Convention, or any suspension of their application, based on a plea that an emergency exists [Digest, op. cit., para. 193]. All appropriate measures should therefore be taken to guarantee that, irrespective of trade union affiliation, trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind [Digest, op. cit., para. 35]. Workers should have the right, without distinction whatsoever, in particular without discrimination on the basis of political opinion, to join the organization of their own choosing. They should have the right to establish the organizations that they consider necessary in a climate of complete security irrespective of whether or not they support the social and economic model of the Government, including the political model of the country [Digest, op. cit., paras 212 and 213].
   • Extrajudicial killings
8. 1206. The Committee recalls that during the previous examination of this case, it requested the Government to keep it informed of the progress of the investigation to be carried out by the special joint fact-finding body. The Committee had also expressed reservations with regard to the fact that the parties responsible for the establishment of this body included the Department of National Defence, while the Melo Commission had called for an investigation conducted by a body or agency independent from the armed forces [paras 1436–1438].
9. 1207. The Committee notes that there is no information in the Government’s report on the establishment or activities of the joint fact-finding body. From the information available in the annex to the Government’s reply, the Committee notes that the Task Force USIG of the Philippine National Police (PNP) was apparently set up by order of the Interior and Local Government Secretary on 13 May 2006 in order to “investigate incidents of slain militant members and media personalities”. By mid-July 2007 it had before it 116 cases of “slain militant members”. These 116 cases had been selected, inter alia, from the 836 victims reported by Karapatan, an organization allied to the KMU activist community. These allegations of 836 victims were found to be “bloated and misleading”; 529 cases reported by Karapatan had been “excluded” from investigation by USIG as the killings were due to motives irrelevant to the militants’ activities (inter alia, eight were linked to a “Labor Dispute” and ten concerned an “agrarian related/land dispute”; moreover, five alleged victims – not concerned by the present complaint – were actually alive despite allegations to the contrary).
10. 1208. Thus, of the 116 cases of “slain militant members” pending before USIG by mid-July 2007, 61 were under investigation: five of them were believed to have been perpetrated by the CPP/NPA and seven were allegedly linked to the military or military assets. Furthermore, 55 other cases (47 per cent of all 116 cases) had been “filed”: 24 had been perpetrated by the CPP/NPA (22 suspects at large, one arrested and one killed); six cases involved military elements as suspects (one surrendered, one arrested and one “settled”).
11. 1209. With regard to steps taken to investigate the 39 murders retained in this complaint, the Committee notes that according to the Government, ten cases have been attributed to the police, army or local officials and criminal proceedings are pending. Specifically, a policeman has been charged with the murder of Angelito Mabansag, two army privates have been charged with the murder of Ricardo Ramos, President of Central Azucarera de Tarlac Labor Union (CATLU; one of the unions in the Hacienda Luisita incident); and a Barangay Captain as well as two Barangay tanods have been accused with the murder of Dante Teotino. Furthermore, nine police officers have been recommended to be charged by the NBI for multiple homicide in connection with the deaths of seven workers during the Hacienda Luisita incident (see below). Finally, a criminal case was brought (not clear whether by the authorities or the victim’s family) against police and army officers for the murder of Samuel Bandilla and the injury of Engr. Bernardo Devaras but was dismissed by the Prosecutor for insufficiency of evidence; the dismissal was later confirmed by the Department of Justice.
12. 1210. The Committee also notes that in seven cases, the suspects identified were not related to the army or the police (Rommel Arcilla, Melita Carvajal, Mario Fernandez, Abelardo Ladera, Jimmy Legaspi, Rolando Mariano y Thalla, Ramon Namuro, Victoria Samonte and Albert Teredano). Criminal proceedings are pending in four of these cases against those accused of the murder of Rommel Arcilla, Jimmy Legaspi, Rolando Mariano y Thalla and Ramon Namuro. Those suspected of the murder of Mario Fernandez and Albert Teredano were killed in shoot-outs linked to crime syndicates. Furthermore, proceedings for determination of the propriety of filing a criminal case in court against the suspected killer of Abelardo Ladera is pending before the Office of the Prosecutor.
13. 1211. The Committee also notes that in six cases, the relatives of the victims or eye witnesses refused to testify or declared that they did not wish to pursue the matter; thus, the investigation has not advanced (Ronnie Almoete, Edwin Bargamento, Manuel Batolina, Dionesio Halim, Felipe Lapa and Federico de Leon).
14. 1212. In ten cases, the Government is confined to noting that the investigation is still under way (Jessie Alcantara, Nilo Bayas, Ryan Cabrigas, Florante Collantes y Ballon, Engr. Dalmacio Cepeda, Noel Daray, Samuel Dote, Diosdado Fortuna, Benedicto Gabon, Erol Sending y Chavez). With regard to Diosdado Fortuna, President of the Union at Nestlé, Cabuayo, the Committee notes from the table prepared by the Presidential Human Rights Committee (annexed by the Government to its reply), that the case of Diosdado Fortuna has been archived. The Committee notes that according to the Government, there is no indication as to the perpetrators despite the fact that the police has formed an ad hoc investigation unit, the issue is followed up by the Presidential Human Rights Committee and the Commission on Human Rights has launched its own investigation.
15. 1213. The Committee finally notes that no information has been provided on Ronald Andrada, Nemita Labordio, Antonio Pantonial and Albert Terredaño.
16. 1214. While noting with interest the progress made by USIG in investigating incidents of alleged extrajudicial killings, the Committee cannot but regret that the information brought to its attention does not refer to any conviction pronounced so far for these acts of extreme gravity, despite the fact that the incidents date as far back as 2001. Moreover, the Committee notes that suspects have been identified in 17 out of 39 individual cases brought to its attention and that in only seven cases have proceedings been instituted before the courts. In addition to this, only in 42 out of 116 cases before USIG, have the suspects been apparently identified and again, no conviction seems to have been pronounced so far by the competent courts. The Committee once again recalls that justice delayed is justice denied [Digest, op. cit., para. 105]. The absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [Digest, op. cit., para. 52]. The Committee notes that the USIG itself acknowledges the difficulties which prevent the successful conclusion of the investigations, in particular, the weakness of the Witness Protection Program, the lack of police training and limited investigation facilities and resources. The Committee will return to these issues below.
17. 1215. The Committee once again recalls that the killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events [Digest, op. cit., para. 48]. It urges the Government to take all necessary measures so as to ensure that the investigation and judicial examination of all acts of extrajudicial killings advance successfully and without delay. In particular, the Committee requests the Government to send further information on the steps taken to fully investigate the 39 extrajudicial killings alleged by the complainant, so that all responsible parties may be identified and punished before the competent courts as soon as possible and a climate of impunity be avoided. The Committee hopes that the recommendations made by the UN Special Rapporteur will be taken into account in this framework, and requests to be kept informed of developments.
18. 1216. The Committee also urges the Government to provide without delay additional information and clarifications on: further progress made by USIG in investigating complaints of killings and identifying the suspects; the methods of work of USIG and in particular, the definition of cases of “slain militant members” which are considered by USIG as falling within its competence; what is meant by “filed” and “settled” cases; the process followed once the investigation is concluded with a view to bringing the accused to justice; the activities of other bodies currently in charge of investigating killings; the rate of successful prosecutions and the sentences pronounced.
    • Abductions and enforced disappearances
19. 1217. With regard to the Committee’s request for an independent judicial inquiry and proceedings before the competent courts with a view to shedding full light onto the allegations of abductions and disappearances of trade union leaders and members listed by the complainant, the Committee notes with regret that apart from scant information on three incidents, the Government’s reply makes no reference to any steps aimed at an independent judicial inquiry and proceedings before the competent courts.
20. 1218. The Committee notes that the Government provides the following information on three of the nine incidents brought to its attention: (i) on Rogelio Concepcion, who was allegedly abducted by elements of the 24th Infantry Division on 6 March 2006, the Government indicates that the case is being monitored by the Presidential Human Rights Committee; (ii) on the alleged assault, torture and abduction of Virgilio and Teresita Calilap, Bernabe Mendiola and Oscar Leuterio on 17 April 2006, the Government indicates that they were probably abducted by communist terrorists and not the army and that the DOLE Regional Office No. III reported that they have returned home although the police has no record of their return as they never bothered to check in with the police authorities; (iii) with regard to Emerito Gonzales Lipio and William Aguilar who were allegedly abducted on 3 July 2006, the Government indicates that they were not abducted but arrested along with five other individuals. Four of the seven arrested individuals had been caught carrying illegal explosives. Aguilar and Lipio were later released. Noting that, apparently, no charges were brought against Aguilar and Lipio, the Committee recalls that the arrest of trade unionists against whom no charge is brought involves restrictions on freedom of association, and governments should adopt measures for issuing appropriate instructions to prevent the danger involved for trade union activities by such arrests [Digest, op. cit., para. 70].
21. 1219. The Committee also notes that no information is provided in the Government’s replies with regard to the following alleged incidents: Rafael Tarroza (abducted on 8 January 2006; allegedly interrogated and threatened by the military and returned to his family after six hours, having told the military that he would cooperate); Armando Leabres (abducted on 10 January 2006, found dead); Francis Noel Desacula (abducted on 29 September 2006, missing); Robin Solano and Ricardo Valmocina (abducted on 1 February 2006, missing); Ronald Intal (abducted on 3 April 2006, missing); Leopoldo Ancheta (abducted on 24 June 2006, missing).
22. 1220. The Committee recalls that during the previous examination of this case it expressed concern at the fact that the mandate of the Melo Commission is limited to extrajudicial killings, so that allegations of abductions and disappearances remain unexplored despite their extreme gravity [346th Report, para. 1442]. The Committee emphasizes that the killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events [Digest, op. cit., para. 48]. The Committee also emphasizes once again that the absence of judgements against the guilty parties creates in practice a situation of impunity which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [Digest, op. cit., para. 52]. The Committee therefore once again urges the Government to institute an independent inquiry and proceedings before the competent courts as soon as possible with regard to the allegations of abductions and enforced disappearances of trade union leaders and members with a view to shedding full light onto the relevant facts and circumstances, and to determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events. The Committee requests to be kept informed in this respect.
    • Other recommendations of the Melo Commission
23. 1221. The Committee recalls that during the previous examination of this case it had requested the Government to take all measures to ensure the implementation of the recommendations of the Melo Commission concerning: (i) the reinforcement of the Witness Protection Program; (ii) legislation to require police and military forces and other government officials to maintain strict chain-of-command responsibility with respect to extrajudicial killings and other offences committed by personnel under their command, control or authority; and (iii) orientation and training of the armed forces.
24. 1222. On the issue of the reinforcement of the Witness Protection Program, the Committee recalls from above that according to the Government, in six of the individual cases of killings raised in this complaint, the relatives of the victims or eye witnesses refused to testify or declared that they did not wish to pursue the matter. The Committee also notes from the information in the annex of the Government’s reply, that the USIG identifies as a major “gap” which prevents investigations from advancing the “[r]eluctance of the family of the victim and witnesses to cooperate in the conduct of investigation for fear of reprisal” and the “[l]imited coverage, facilities and resources in the implementation of the government Witness Protection Program (WPP)”. It further observes the following statement by the UN Special Rapporteur also referred to in the information provided by the USIG: “witnesses are uniquely vulnerable when the forces accused of killings are all too often those, or are linked to those, who are charged with ensuring their security. The present message is that if you want to preserve your life expectancy, don’t act as a witness in a criminal prosecution for the killing” [document A/HRC/8/3/Add.2, para. 52]. It also takes note of the specific recommendations made by the UN Special Rapporteur so that “[t]he witness protection program [is] reformed and fully implemented” [document A/HRC/8/3/Add.2 para, 71].
25. 1223. In this regard, the Committee also notes the Summary of Recommendations of the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances: Searching for solutions (National Consultative Summit), which took place on 16–17 July 2007 in Manila. The Committee notes that the Summit, which had been convened by the Supreme Court, recommended among other things, to review the Witness Protection Program so as to “re-focus on its primary objective of providing security and protection to its witnesses”. It is also recommended that “non-governmental organizations (NGOs) be allowed to institute and implement their own witness protection programs” and that the government be allowed “to share the burden with the NGOs and solve the problem of witnesses who are reluctant to avail of the government program because the suspected perpetrators themselves are from the government”.
26. 1224. The Committee notes that according to the Government, bills or legislative proposals are now pending to amend the Witness Protection, Security and Benefit Act. Noting once again that the Government is under a responsibility to take all necessary measures to have the guilty parties identified and punished – in particular by ensuring that witnesses, who are crucial for the successful identification and prosecution of suspects, are effectively protected – and to successfully prevent the recurrence of human rights violations, the Committee requests the Government to keep it informed of steps taken to amend the Witness Protection, Security and Benefit Act and in general, to strengthen the Witness Protection Program. The Committee hopes that the recommendations made by all parties, including the Melo Commission, the National Consultative Summit and the UN Special Rapporteur, will be taken into account in this process.
27. 1225. On the issues of maintaining strict chain-of-command responsibility with respect to extrajudicial killings and other offences and ensuring the orientation and training of the armed forces, the Committee regrets that the Government’s reply does not contain any substantial information in this regard. The Committee observes that the UN Special Rapporteur recommended that “[t]he necessary measures should be taken to ensure that the principle of command responsibility, as it is understood in international law, is a basis for criminal liability within the domestic legal order” [doc. A/HRC/8/3/Add.2, para. 67]. The Committee also notes that the National Consultative Summit emphasized the need to “devise ways of implementing the doctrine of command responsibility ... for the commission of humanitarian abuses”; it also went beyond the question of the orientation and training of the armed forces by calling for “an information campaign for ordinary citizens so as to promote moral and ethical values that place a premium on tolerance and respect for the rule of law, consistent with the demands of a pluralistic society”.
28. 1226. The Committee considers that in light of the findings of the Melo Commission (see above) and the UN Special Rapporteur it is of the utmost importance to take immediate measures so as to raise full awareness within the army ranks of the principles according to which workers should have the right to establish the organizations that they consider necessary in a climate of complete security irrespective of whether or not they support the social and economic model of the Government, including the political model of the country; a climate of violence, coercion and threats of any type aimed at trade union leaders and their families does not encourage the free exercise and full enjoyment of the rights and freedoms set out in Conventions Nos 87 and 98. All States have the undeniable duty to promote and defend a social climate where respect of the law reigns as the only way of guaranteeing respect for and protection of life [Digest, op. cit., paras 213 and 58].
29. 1227. The Committee therefore once again requests the Government to take all measures with a view to ensuring full implementation of the recommendations of the Melo Commission on the adoption of legislation to require police and military forces and other government officials to maintain strict chain-of-command responsibility with respect to extrajudicial killings and other offences committed by personnel under their command, control or authority. The Committee requests to be kept informed of developments in this respect. The Committee also requests the Government to take all necessary measures without delay to ensure that the armed forces receive adequate instructions, orientation and training conducive to promoting a social climate where respect of the law reigns as the only way of guaranteeing respect for and protection of the right to life. The Committee hopes that the recommendations made by all parties, including the Melo Commission, the National Consultative Summit and the UN Special Rapporteur, will be taken into account in this regard and requests to be kept informed of developments.
30. 1228. The Committee notes that in addition to the issue of training and orientation of the armed forces, the materials provided from the USIG have emphasized the need for police training with a view to conducting more effective investigations. In addition to this, the USIG refers to “[l]imited investigation facilities and resources (forensic mobility and communication equipment) which hamper the investigation process”. The lack of sufficient forensic facilities and an over-reliance on intimidated witnesses who do not come forward in the end was further signalled by the UN Special Rapporteur [doc. A/HRC/8/3/Add.2, para. 55] and referred to by the USIG.
31. 1229. The Committee also notes the recommendations of the National Consultative Summit according to which, the PNP should “conduct trainings on preliminary investigation procedures which would address concerns regarding the dismissal of cases as a result of improper procedures adopted by police authorities;” and “there should be greater cooperation between the police investigators and the prosecutors in order to expedite the prosecution of cases”.
32. 1230. The Committee requests the Government to take all necessary measures to ensure that the police receive the training and facilities necessary to ensure that extrajudicial killings can be effectively and swiftly investigated and elucidated and that the responsible parties are identified, brought to justice and punished. The Committee requests to be kept informed of developments in this respect.
33. 1231. The Committee finally notes the other recommendations of the National Consultative Summit addressed to the courts, the executive and the legislature. In particular, the Committee recalls among a wide range of recommendations, the need “to study carefully the possibility of creating a new crime where the victim or the offended party is a journalist, judge, media, militant who is killed or kidnapped in the course of the performance of his duties or the conduct of his profession. Extrajudicial killings and kidnappings are at present not penalized in the Revised Penal Code (RPC), or in any law for that matter” . Moreover, it notes “that the Supreme Court [should] adopt a rule allowing persons threatened with extrajudicial killings to apply for a protection order directing the NBI or Police to provide them security”; and that “judges should be given security personnel to ensure their safety”. Furthermore, it was suggested that the courts address the gaps in chain-of-command responsibility by creating a disputable presumption of knowledge by the superior of the acts of the subordinate and eliminating the presumption of regularity in the performance of official duties in the prosecution of cases involving extrajudicial killings and forced disappearances; according to the text, “the proposal is an attempt to shift the burden of proof on the Government in order to strengthen the prosecution of such cases especially in instances when government refuses to furnish the concerned parties with vital documents”. The Committee notes from the Government’s reply that the Supreme Court is ready to announce its rule for the compulsory production of data, as a companion measure to the habeas corpus remedy, to ensure that investigations will succeed. Finally, it notes that the National Consultative Summit proposed the creation of “[a]n independent and impartial body [which] should exercise oversight functions to ensure investigations are conducted by the police and other investigative agencies in accordance with international standards”.
34. 1232. The Committee notes with interest that the initiatives taken and proposals made at the national level can be conducive to innovative and effective ways of combating the problem of extrajudicial killings, abductions and enforced disappearances. The Committee requests the Government to keep it informed of the further measures taken with a view to maintaining an ongoing, open and constructive dialogue on the basis of the recommendations of the National Consultative Summit and the Melo Commission, with the participation of all interested parties, so as to identify and implement further ways of combating the problem of extrajudicial killings, abductions and enforced disappearances.
    • Hacienda Luisita incident
35. 1233. With regard to its request for an independent investigation carried out into the Hacienda Luisita incident which claimed the lives of at least seven trade union leaders and members (Jhaivie Basilio, Adriano Caballero, Jun David, Jesus Laza, Jaime Pastidio, Juancho Sanchez, and Jessie Valdez) and led to the injury of 70 others, and instructions to be given to the law enforcement authorities so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations, the Committee notes from the Government’s reply, that of the 36 PNP personnel involved in the dispersal operation nine have been recommended to be charged by the NBI for multiple homicide because they were found positive for powder burns following a paraffin test. The Committee further notes that the Presidential Human Rights Committee, a cabinet-level committee under the Office of the President, is presently monitoring the progress of the case and inquiring into the specific case of Jessie Valdez who allegedly died of blood loss (shot in the thigh) because the military, instead of bringing him to the hospital, brought him to a military camp. The Committee also recalls from above, that a process is pending against two army privates with regard to the death of Ricardo Ramos, President of Central Azucarera de Tarlac Labor Union (CATLU), one of the unions in the Hacienda Luisita incident.
36. 1234. While noting that nine police officers have been identified as suspects in connection with the Hacienda Luisita incident and recommended to be charged for multiple homicide, the Committee observes that it has no information as to the institution of judicial proceedings for this incident which dates back to 2004. It also notes with regret that the Government provides no information as to measures taken to implement the Committee’s previous recommendation for instructions to the law enforcement authorities so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations.
37. 1235. While taking due note of the Government’s indication that “the ranks of the rallyists had been infiltrated” and that “of the seven casualties one is listed in the Order of Battle of the Tarlac PNP as a member of the CPP/NPA; three of them were found positive for gunpowder burns based on conducted paraffin tests by the PNP Crime Laboratory”, the Committee also wishes to recall from the previous examination of this case that the House of Representatives Committees on Human Rights and Labor and Employment have stated that “[t]here was undoubtedly, excessive use of force against the workers” and concluded that:
    • [a]fter careful deliberation and review of the testimonies of the witnesses and all the parties invited by the Committees and examination of all documents submitted in the course of the congressional inquiry, the Committees have arrived at the conclusion that human rights violations were committed against the striking workers of Hacienda Luisita by the elements of the Philippine National Police and the Armed Forces of the Philippines, including the officers and the staff of the Department of Labor and Employment. Hence, it is imperative that the officers concerned be held responsible directly or by reason of command responsibility for the said acts after proper investigation has been concluded [346th Report, para. 1448].
38. 1236. The Committee once again recalls that the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace. In cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities [Digest, op. cit., paras 140 and 49]. The Committee therefore once again requests the Government to take all necessary measures so that the judicial proceedings on this case advance without further delay with a view to identifying and punishing those responsible. Furthermore, it once again urges the Government to give adequate instructions to the law enforcement authorities so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations. The Committee requests to be kept informed in this respect.
    • Arrest of Crispin Beltran and five
    • NFSW members
39. 1237. With regard to the arrest and imprisonment of Crispin Beltran, long-time KMU leader, as well as five members of the NFSW, the Committee takes note of the decision of the Supreme Court provided by the Government. It notes that the Supreme Court voided the charges against Crispin Beltran and the five members of the NFSW by ruling that “The Inquest Proceedings against Beltran for Rebellion is Void” and that “There is No Probable Cause to Indict Beltran for Rebellion”. On the other accused, the Court found that “The Preliminary Investigation was Tainted With Irregularities”. The Court also stated that it “find[s] merit in petitioners’ doubt on respondent prosecutors’ impartiality”. The Committee understands that the accused were thereafter released. The Committee also notes from publicly available information that Crispin Beltran died of an accident on 20 May 2008.
    • Requests to which the Government
    • has not responded
40. 1238. The Committee notes with regret that the Government does not provide any specific answer to its previous requests with regard to allegations concerning: harassment, intimidation and grave threats by the military and police forces against trade union leaders, members, organizers and union supporters and informal workers; militarization of workplaces in strike-bound companies or where a labour dispute exists and where existing unions or unions being organized are considered progressive or militant, by means of establishing military detachments and/or deployment of police and military elements under the pretext of counter-insurgency operations; and arrest and detention of and subsequent filing of criminal charges against trade union leaders, members, organizers and union supporters and informal workers due to their involvement and active participation in legitimate economic and political activities of trade unions and informal workers’ associations.
41. 1239. In these circumstances, the Committee reiterates its previous requests concerning: (i) the adoption of measures, including the issuance of appropriate instructions, to bring to an end prolonged military presence inside workplaces which is liable to have an intimidating effect on the workers wishing to engage in legitimate trade union activities and to create an atmosphere of mistrust which is hardly conducive to harmonious industrial relations; (ii) the issuance of instructions to ensure that any emergency measures aimed at national security do not prevent in any way the exercise of legitimate trade union rights and activities, including strikes, by all trade unions irrespective of their philosophical or political orientation, in a climate of complete security; (iii) the issuance of instructions to ensure the strict observance of due process guarantees in the context of any surveillance and interrogation operations by the army and police in a way that guarantees that the legitimate rights of workers’ organizations can be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations; (iv) the communication of the Government’s observations in respect of the allegations of harassment and intimidation of trade union leaders and members affiliated to the KMU. The Committee urges the Government to reply to these requests without further delay.