Rapport intérimaire - Rapport No. 356, Mars 2010

1. 1117. The Committee last examined this case at its November 2008 meeting, when it presented an interim report to the Governing Body [351st Report, paras 1180–1240 approved by the Governing Body at its 303rd Session (November 2008)].
2. 1118. The complainant organization, Kilusang Mayo Uno Labor Center (KMU), sent new allegations in communications dated 30 September and 10 December 2009.
3. 1119. The Government forwarded its response to the allegations in various communications dated 15 January, 5 February and 1 March 2010.
4. 1120. 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. 1121. At its November 2008 session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee requests 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 on extrajudicial, summary or arbitrary executions will be taken into account in this framework and requests to be kept informed of developments.
   • (b) The Committee also requests the Government to provide additional information and clarifications on: further progress made by the Task Force USIG of the Philippine National Police 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.
   • (c) The Committee 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.
   • (d) 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 Programme. The Committee hopes that the extensive recommendations made by all parties, including the Melo Commission, the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances and the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, will be taken into account in this process.
   • (e) The Committee 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.
   • (f) The Committee 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 on Extrajudicial Killings and Enforced Disappearances and the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, will be taken into account in this regard and requests to be kept informed of developments.
   • (g) 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.
   • (h) Noting with interest the initiatives taken and proposals made at the national level to combat 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 on Extrajudicial Killings and Enforced Disappearances 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.
   • (i) With regard to 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 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.
   • (j) 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.
   • (k) The Committee calls the Governing Body's attention to this serious and urgent case.

B. The complainant's new allegations

1. 1122. In its communications dated 30 September and 10 December 2009, the complainant organization alleges that trade union violations continue to occur with impunity in the country and hinder the full exercise of the workers' rights to organize, collectively bargain and strike under Conventions Nos 87 and 98.
2. 1123. The KMU then goes on to list the following highlighted cases.
   • Extrajudicial killings and attempted murders of trade union leaders, members, organizers and union supporters and informal workers
3. 1124. The complainant describes the extrajudicial killings and attempted murders of trade union leaders, members, organizers and union supporters and informal workers at the height of the Government's scheme to prevent the workers and informal workers from exercising their freedom of association and their right to organize and collectively bargain.
4. (1) Carlito B. Dacudao, organizer of the National Federation of Sugar Workers (NFSW) - KMU in Negros, was killed on 21 August 2009 in Negros Occidental.
5. (2) Sabina Ariola, Chairperson of the semi-workers and urban poor group Mamamayan ng Sta Rosa para sa Kagalingan, Kaunlaran, Kapayapaan, Tungo sa Magandang Kinabukasan ng Bayan (MSRK3 or People of Sta Rosa for Welfare, Development and Peace for a Better Society), was killed on 23 March 2009 on top of a pickup truck on the way to the municipal hall of Sta Rosa, Laguna, to conduct a protest.
6. (3) Armando Dolorosa, Vice-Chairperson of NFSW-KMU Hda Myrianne Chapter, municipality of Manapla, Negros Occidental, was killed on 6 June 2008.
7. (4) Gerardo "Gerry" Cristobal, former union President and organizer of the Samahan ng Manggagawa sa EDS Mfg., Inc.-Independent (SM-EMI-Ind), was killed on 10 March 2008 in Imus, Cavite.
8. (5) Attorney Gil Gojol, legal counsel of the Association of the Democratic Labor Organizations - KMU (ADLO-KMU) in Bicol, was killed on 12 December 2006.
9. (6) Jesus Buth Servida, union President of the SM-EMI-Ind, was killed on 11 December 2006 in front of the factory's main gate.
10. (7) Jerson Lastimoso, union member of the Nagkahiusang Mamumuo sa Suyapa Farm (NAMASUFA), an affiliate of the National Federation of Labor Unions (NAFLU) - KMU, was killed on 10 December 2006 in Compostela Valley, Southern Mindanao Region.
11. (8) Attempted murder of Joel Ascutia, President of the jeepney drivers' group Condor Piston-Bikol and National Deputy Secretary of PISTON, on 13 July 2009 during a nationwide transport strike.
12. (9) Attempted murder of Liza Alo, President of the Packing Plant 92 Workers' Union, on 16 May 2009.
13. (10) Attempted murder of Vicente Barrios, President of NAMASUFA-NAFLU-KMU, on 10 December 2006, where his companion, Jerson Lastimoso, died.
    • Abduction, failed abduction and enforced disappearances of trade union leaders, members, organizers and union supporters and informal workers
14. 1125. The complainant indicates that the abductions, failed abductions and enforced disappearances of trade union leaders, members, organizers and union supporters and informal workers are committed by elements of the military and police, not only to intimidate and/or terrorize the workers and informal workers from continuing their economic and political activities, but to ultimately paralyse and render the union or organization futile.
15. (1) Jaime "Jimmy" Rosios, Board of Directors and spokesperson of the Yellow Bus Line Employees' Union (YBLEU), was abducted on 11 August 2007 and remains missing up to now.
16. (2) Failed abduction of Roy Velez, Chairperson of KMU, National Capital Region, on 20 May 2007 by suspected military agents.
    • Harassment, intimidation, witch-hunting and grave threats committed by the military and police forces against trade union leaders, members, organizers and union supporters and informal workers
17. 1126. Listing of trade union leaders in the military's order of battle; vilification of union leaders as members and supporters of the armed group New People's Army (NPA).
18. (1) The 10th Infantry Division of the Armed Forces of the Philippines (AFP) in the Southern Mindanao Region leaked out a list of individuals of alleged "enemies of the state" and target for surveillance, harassment and neutralization (killing). The following persons are included in the list: Romualdo Basilio (KMU-SMR Chairperson), Omar Bantayan (KMU-SMR Secretary-General) and Congressman Joel Maglungsod (ANAKPAWIS Partylist Representative, former KMU-SMR Secretary-General and also former KMU Secretary-General).
19. (2) Rene "Boyet" Galang, President of the United Luisita Workers' Union (ULWU) and of the Unyon ng mga Manggagawa sa Agrikultura (UMA, Agricultural Workers' Union), was vilified by the AFP Northern Luzon Command (NOLCOM) as being a New People's Army (NPA) member, during the height of the Hacienda Luisita strike in 2005, forcing him to leave his home and seek refuge somewhere else.
20. (3) Gaudencio Garcia, President of the Universal Robina Corporation Employees'
    • Union - Farm Division, was harassed and intimidated by military elements, approached on several occasions and invited to become a military agent. He was forced to sign a paper confessing that he was an NPA member and was included in the "Rizal 26" accused of murder.
21. 1127. Death threats, blacklisting and other forms of harassment.
22. (1) Vicente Barrios, union President of NAMASUFA-NAFLU-KMU, received anonymous death threats via text messages. Since March 2007, armed men on motorbikes are regularly seen outside his workplace, asking the security guards about his whereabouts and the activities of the union.
23. (2) Arman R. Blase, a former worker at Sumitomo, Board of Directors member of the Nagkahiusang Mamumuo sa Osmiguel (NAMAOS) and current spokesperson of the KMU, Southern Mindanao. On 3 December 2008, unidentified persons on motorbikes came to the plant inquiring about his and other union leaders' whereabouts. On two separate occasions, military men followed him and visited his parent's house inquiring as to his whereabouts.
24. (3) Belen Navarro Rodriguez, wife of Ariel Rodriguez (active member of the Pacific Cordage Workers' Association). On 13 July 2009, four soldiers with high-powered rifles approached her, asked about a house where the KMU supposedly have meetings and told her that the KMU are NPA members. The soldiers were also looking for Leo Caballero, spokesperson of the KMU Bicol.
25. (4) Leo Caballero, spokesperson for the KMU-Bicol human rights desk. Military elements have conducted surveillance operations on him and announced over the radio that he instigates and forces people to go to protest rallies.
26. (5) AMADO KADENA-NAFLU-KMU union of the company Dole Philippines. Harassment and intimidation of union officers and active members.
27. (6) Union of Filipro Employees (UFE-DFA-KMU) - Nestlé Cabuyao union. Since the start of the union's strike on 14 January 2002, there were continuous surveillance, intimidation, threat and harassment against the officers and active members. Union activities such as meetings, protest actions and peaceful picketing are kept under watch and harassed by police and military in uniform and some in civilian clothes. Two uniformed army officers "visited" the Nestlé workers' picket line in October 2008. On 4 December 2008, confirmed police intelligence operatives harassed and threatened the Nestlé workers from Laguna to Manila. In addition, more than 250 members of this Nestlé union were charged with false criminal charges and are unable to obtain clearances from the National Bureau of Investigation (NBI) eventually barring them from employment locally and abroad. The sons and daughters of striking workers are also blacklisted from job employment.
28. (7) Luz Fortuna, wife of slain Nestlé Cabuyao union leader Diosdado "Ka Fort" Fortuna. Reported cases of military intimidation to her.
29. (8) Workers of Tritran Union-Independent. Union officers continuously experience various intimidation tactics such as surveillance from suspected military agents.
    • Militarization of workplaces where a labour dispute exists and where existing unions, or unions being organized, are considered progressive or militant
30. 1128. The complainant indicates that the militarization of workplaces in strike-bound companies, or where a labour dispute exists between management and workers, and where existing unions or unions being organized are considered progressive or militant, is undertaken under the pretext of counter-insurgency operations, by means of military detachments and/or deployment of police and military elements.
31. (1) Massive military deployment from the 66th Infantry Battalion (IB) of the AFP since September 2008. Reported incidents of harassment including those committed against the Maragusan United Workers' Union (MUWU), NAMAOS, NAMASUFA and Nagkahiusang Mamumuo sa San Jose (NAMASAN), all affiliated with the NAFLU-KMU. The Packing Plant 92 Workers' Union and Rotto Freshmax Workers' Union, two independent unions, suffer the same military harassment.
32. (2) In September 2009, the military conducted meetings at the Universal Robina Corporation Employees' Union - Farm Division, and lectured the workers that they should dissociate from the KMU and other progressive militant groups such as Anakpawis Party List, etc.
33. (3) Since 3 November 2008, elements of the 66th IB, headed by Lieutenant Mark Tina, were deployed in the vicinity and started entering the Sumitomo Fruits Corporation premises on a daily basis. This was during the management's refusal to implement the latest Collective Bargaining Agreement (CBA) with NAMAOS. Military elements conducted daily forums and showed videos vilifying the KMU and NAMAOS as NPA supporters. The forum instructors were leaders of the Workers for Industrial Peace and Economic Reforms (WIPER), a group that is organized and run by the military. The military conducted a survey in the local community to identify the whereabouts of union leaders and members for the whole month of January 2009.
34. (4) In 2006, elements of the 28th IB of the AFP were deployed in the vicinity of the Suyapa Farm to watch over the union. After the killing of Jerson Lastimoso, armed men on motorbikes have been regularly patrolling the vicinity of the workplace, asking the whereabouts of union President Vicente Barrios and about union activities.
35. (5) On February 2008, government troops from the 71st IB, 48th IB and 69th IB were deployed in the different barangays (villages) surrounding the Hacienda Luisita. Each barangay has 20 CAFGU (Civil Auxiliary Force Geographical Unit) who conduct meetings with film screenings. According to them "communism" is behind unions and strikes. They regularly monitor the activities of ULWU leaders.
36. (6) The military conducts film screenings of "Knowing Your Enemy" to farm workers in the Cagayan Valley, Bukidnon and Davao del Sur. The film tags the different militant organizations like the KMU, KMP, Bayan, Gabriela and many others as communist fronts.
37. (7) Deployment of AFP elements in Polomolok, Cotabato where AMADO KADENA-NAFLU-KMU union of Dole, Philippines, is active. The military openly accuse leaders of the KMU as NPA recruiters, conduct programmes such as the "integrated territorial defence system" or psy-war operations in the community and red-baiting and smear campaigns against the KMU and Anakpawis Partylist. AFP-CMO, 27th IB and Dole, Philippines, management conducts "social awareness programmes, industrial safety focus seminars" to espouse anti-KMU and anti-union orientation. The management assisted the formation and hate campaign of the Alliance for Democratic Progress (formed by the military personnel and anti-communist group) against the incumbent union. The management supported a group of anti-union employees in filing cases against the union and its leaders.
38. (8) In Bicol, the military deployed the AFP Community Organizing, Recovery and Development (ACORD) Team and the Barangay Defense System (BDS) in worker communities near the Pacific Cordage Corporation.
    • Arrest and detention of, and subsequent filing of, criminal charges against trade union leaders, members, organizers and union supporters and informal workers
39. 1129. The complainant indicates that trade union leaders, members, organizers and union supporters and informal workers are victims of arrest and detention and subsequent filing of criminal charges, due to their involvement and active participation in legitimate economic and political activities of the trade unions and informal workers' associations.
40. (1) Detention of 20 workers of Karnation Industries since 10 May 2007 for merely exercising their right to unionize and struggle against the unjust and illegal practices of their employer. Workers are still imprisoned, in appalling conditions, at the Karangalan jail. Two workers - Melvic Lupe and Leo Paro - died in jail.
41. (2) Illegal arrest, detention and filing of trumped-up criminal cases against Vincent Borja, KMU national council member and KMU Eastern Visayas Regional Coordinator. To date, Vincent Borja remains in jail since his arrest on 7 May 2007.
42. (3) Filing of criminal cases against AMADO KADENA officers and members.
43. (4) PAMANTIK-KMU chairman, Romeo Legaspi, and other union officers charged with attempted murder, multiple murders, and multiple attempted murder in various courts.
44. (5) About 250 workers of Nestlé Cabuyao were criminalized and charged with an average of 37 criminal cases each before the Municipal Trial Court-Cabuyao (MTC-Cabuyao) and Regional Trial Court-Biñan (RTC-Biñan). This militarization against workers is the continuing consequence of the Assumption of Jurisdiction Order and Deputization Order by the Secretary of the Department of Labor and Employment (DOLE).
45. (6) Refiling of the trumped-up murder and attempted murder cases in Calapan City, Mindoro Oriental that accused 72 individuals, wherein 12 of the accused are trade union leaders and advocates.
46. (7) Illegal arrest and detention of attorney Remigio Saladero Jr, chief legal counsel of the KMU, on trumped-up charges of arson, murder, multiple murder and attempted multiple murder among others.
47. 1130. Finally, the KMU indicates that several documents pertaining to the listed violations have been submitted to the high-level ILO mission to the Philippines on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), conducted from 22 September to 1 October 2009, such as fact sheets; executive summaries provided by the unions UFE-DFA-KMU, SM-EMI-Ind and NFSW-KMU; police blotter; medical certificates, etc. As regards the report of the high-level ILO mission and the recommendations contained therein, the complainant wishes to highlight that it considers the statement made by Mr Lagman (Undersecretary, DOLE) as highly inaccurate. The KMU also wishes to reiterate its view that 93 trade unionists have been killed in the country for reasons related to their trade union work.

C. The Government's reply

1. 1131. In a communication received on 15 January 2010, the Government refers to the information provided to the high-level ILO mission on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which visited the Philippines from 22 September to 1 October 2009. Following the mission and by way of response, the Government outlines four major commitments towards the full application of the principles of freedom of association.
2. 1132. Firstly, the Government will ensure expeditious investigation, prosecution and resolution of pending cases concerning alleged harassment and assassination of labour leaders and trade union activists. To this end, the Government has: (i) evaluated and built a comprehensive inventory of the cases with identified future actions required in each case; (ii) provided the necessary institutional funds to the Philippine National Police (PNP) for Task Force Usig and to the Department of Justice (DOJ) for Task Force 211, to further strengthen their operational capability; and (iii) entered into a technical agreement with the European Union to enhance the country's criminal justice system, the EU-Philippines Justice Support Program (EPJUST), in partnership with the DOJ, Department of National Defense (DND), Department of the Interior and Local Government, Office of the Ombudsman, the AFP, PNP, Commission on Human Rights of the Philippines (CHRP), and Civil Society Organizations (CSOs). The DOLE Secretary has requested the concerned government agencies to prioritize for fast investigation, prosecution and resolution of the cases raised before the ILO. The request included the case of attorney Remigio Saladero and has produced positive results with the dismissal of all three charges against him. Certified copies of the resolutions of the cases will be provided to the ILO.
3. 1133. Secondly, the Government will create a high-level tripartite case monitoring committee and will constitute the National Tripartite Industrial Peace Council (NTIPC), chaired by the DOLE Secretary, with clear terms of reference as to its mandate and membership from federations and national unions regardless of affiliations to serve the purpose. In this regard, the Government informs, in its communication of 1 March 2010, that Resolution No. 1, Series of 2010, "Constituting the National Tripartite Industrial Peace Council as the High-Level Tripartite Monitoring Body on the Application of International Standards, in particular the ILO Convention on Freedom of Association and Protection of the Right to Organise Convention" was adopted on 20 January 2010, together with the Operational Guidelines. The Tripartite Executive Committee (TEC), which serves as the technical working committee of the Council, had its first meeting on 23 February 2010 to review and evaluate the first batch of cases involving alleged extrajudicial killings. Upon the request of the labour representatives of the TEC, a sectoral consultation will be conducted where the KMU representative will be invited to provide more information and submit additional evidence, before undertaking a thorough tripartite technical review on these cases. According to the Operational Guidelines, the recommendations of the TEC embodied in individual resolutions will be submitted to the NTIPC for approval.
4. 1134. Thirdly, the Government will work closely with the ILO, the social partners and other stakeholders, to establish a technical cooperation programme that will raise the awareness and strengthen the capacity of all relevant government institutions including the social partners in the promotion and protection of labour rights. A three- to four-year programme has been subjected to a multi-stakeholder review and is being finalized by the ILO for submission to potential donors including the US Department of Labor. Pending the implementation of the programme, the Government and the ILO have started conducting a short-term awareness programme on the principles of Freedom of Association. The first was the three-day National Tripartite Conference on the Principles of Freedom of Association held last December which resulted in the signing of joint statements by the social partners with the PNP, AFP and PEZA. Two regional conferences focusing on the economic zones will be conducted before the end of March 2010.
5. 1135. Lastly, the Government is working on the proposed legislative reforms to further strengthen trade unionism and remove obstacles to the effective exercise of labour rights. The Executive Branch has, inter alia, drafted a bill seeking to amend section 263(g) of the Labour Code which authorizes the DOLE Secretary to assume jurisdiction over labour disputes imbued with national interest. It limits the assumption of jurisdiction to the ILO's concept of "essential services". The bill is currently undergoing tripartite consultations for submission to the NTIPC prior to filing with the appropriate committees of both houses of the 15th Congress by June 2010. In view of the possible delay in the passage of this bill into law, taking into account the forthcoming electoral exercise, the executive branch will implement the following administrative interim measures: (i) the joint guidelines on the conduct of PNP personnel and private security guards during strikes/lockouts, effective March 2010; and (ii) revised Department Order No. 40, series of 2003, to include procedural requirements prior to the assumption of jurisdiction by the DOLE Secretary.
6. 1136. In a communication dated 5 February 2010, the Government transmits additional comments received from the PNP and the DILG concerning the ILO high-level mission report.
7. 1137. As regards the conclusion of the high-level mission that each case must be thoroughly investigated, even in the absence of a formal filing of charges, the PNP restates that every crime merits police investigation the very instant it is reported or brought to the attention of the local police jurisdiction. Police investigators try their utmost to solve the cases based on recovered forensic evidence and available witnesses. Investigations are done painstakingly and properly to ensure that the cases to be filed are strong and can withstand the scrutiny of the court and eventually lead to conviction. However, there are certain types of incidents such as alleged threats, harassments or abductions of trade unionists that are not reported to the police. In these instances, even without a formal blotter, alarm or report, the PNP commences investigation so long as it is brought to its attention through other means such as newspaper accounts, reports aired in the broadcast industry (e.g. radio or television) or by queries or reports from concerned civil society organizations. However, in any criminal investigation, testimonial evidence should support forensics in order to achieve a guilty verdict beyond reasonable doubt. Certain types of crimes such as threats, harassments, or abductions, leave no trace evidence. Therefore, to ensure the progress and success of the investigation, the participation and cooperation of witnesses and family of the victim is crucial and decisive.
8. 1138. Concerning the high-level mission's conclusion that the investigations need to focus not only on the individual author of the crime but also on the intellectual instigators in order for true justice to prevail, the PNP points out that instigators can be indicted if there is proof to establish their authorship of the crime. However, Rule 130, Sec. 30 of the Rules of Court provides that "the act or declaration of a co-conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator, after the conspiracy is shown by evidence other than such act or declaration". The police thus needs independent evidence to establish the culpability of the masterminds. It cannot charge or incriminate any person based on hearsay, speculations, surmises or conjectures. Otherwise, that person can seek the courts for redress in the event that it is established that he or she is innocent of the crime as charged. The PNP is therefore cautious in charging prematurely the masterminds without hard and convincing evidence.
9. 1139. With reference to the high-level mission's recommendations, the DILG indicates that the PNP is well cognizant of Executive Order No. 226 of 17 February 1995, concerning the institutionalization of the doctrine of "command responsibility" in all government offices, particularly at all levels of command in the PNP and other law enforcement agencies. The DILG further points to the built-in preventive mechanisms against violations of civil liberties and human rights, such as the supervision and control over the PNP exercised by the National Police Commission and by local government executives, as well as the existing disciplinary mechanisms before the Internal Affairs Service, the National Police Commission and the Forum for Citizens' Complaints.

D. The Committee’s conclusions

1. 1140. The Committee recalls that the present case concerns allegations of killings, grave threats, continuous harassment and intimidation and other forms of violence inflicted on leaders, members, organizers, union supporters/labour advocates of trade unions and informal workers’ organizations who actively pursue their legitimate demands at the local and national levels.
2. 1141. The Committee deplores the gravity of the allegations made by the KMU and the fact that almost two decades after the filing of the last complaint on this issue (Case No. 1572, 292nd Report, paras 297–312), inadequate measures have been taken 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. The Committee further observes that, since the last examination of the case in November 2008, the complainant has submitted new allegations concerning the following acts of violence: (i) extrajudicial killings and attempted murders of trade union leaders, members, organizers and union supporters and informal workers; (ii) abduction or enforced disappearance and failed abduction of trade union leaders, members, organizers and union supporters and informal workers committed by elements of the military and police; (iii) harassment, intimidation and grave threats committed by the military and police forces; (iv) militarization of workplaces where labour disputes exist and where existing unions or unions being organized are considered progressive or militant; and (v) arrest and detention of, and subsequent filing of, criminal charges against trade union leaders, members, organizers and union supporters and informal workers for their involvement and active participation in legitimate economic and political activities of trade unions and informal workers’ associations.
3. 1142. However, the Committee notes the steps indicated by the Government in recognition of the gravity of the allegations. In particular, it notes with interest that a highlevel ILO mission to the Philippines on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), was finally accepted and took place from 22 September to 1 October 2009. According to its report, the high-level ILO mission was, inter alia, able to meet with representatives of: Congress; the Supreme Court; the CHRP; DOLE; law enforcement and security agencies, notably the DOJ, the DND, the AFP and the Philippine National Police (PNP); as well as the KMU, the complainant in this case.
4. 1143. In its reply dated 15 January 2010, the Government refers to the relevant parts of the report of the high-level ILO mission. The Committee notes that, according to the report, with respect to the initial allegations of the KMU, the Government provided details drawing from PNP reports concerning the killings of the 39 trade unionists, 11 abductions or forced disappearances and 16 identified incidents of harassment, totalling 66 cases of violence alleged in the initial complaint. In the Government’s view, only 13 cases were possibly labour related, that is, the victim was either an organizer or a union member regardless of whether or not there was a strike or labour dispute at the time of death and the circumstances indicate a possible relation to labour issues and concerns. The Government stressed that many of the cases of alleged violence against unionists were not labour related but common crimes, since, in the absence of any dispute, strike, bargaining deadlock, or collective bargaining agreement negotiations, no connection with a trade union had been proven. In this regard, the Committee stresses that all allegations of violence against workers who are organizing or otherwise defending workers’ interests should be thoroughly investigated and full consideration should be given to any possible direct or indirect relation that the violent act may have with trade union activity.
5. 1144. The Committee further notes from the mission report the Government’s indication that the difficulties faced in the investigation and prosecution of the alleged killings, abductions and harassment included difficulties in distinguishing between activities in the exercise of legitimate trade union rights, and activities arising from insurgency operations. The Government indicated that 24 of the 66 cases were related to the counter-insurgency efforts. On the other hand, the Committee notes the indication of the CHRP to the highlevel mission, that the Government was waging a propaganda war putting labour in the camp of the communists, and drawing a grey line between labour and security matters.
6. 1145. While emphasizing that persons engaged in trade union activities, or holding trade union office, cannot claim immunity in respect of the criminal law, 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 [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, 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 [see 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 [see Digest, op. cit., paras 212 and 213].
7. 1146. The Committee therefore notes with interest the Government’s commitment to creating a high-level tripartite case monitoring committee and its indication, in the most recent reply, that Resolution No. 1, Series of 2010, “Constituting the National Tripartite Industrial Peace Council as the High-Level Tripartite Monitoring Body on the Application of International Standards, in particular the ILO Convention on Freedom of Association and Protection of the Right to Organise Convention” was adopted on 20 January 2010, together with the Operational Guidelines. The Committee also notes with interest that the TEC, the technical working committee of the Council, already had its first meeting on 23 February 2010 to review and evaluate the first batch of cases involving alleged extra-judicial killings, that a sectoral consultation will be conducted where the KMU representative will be invited to provide additional information and evidence, and that, according to the Operational Guidelines, the relevant recommendations of the TEC will be submitted to the NTIPC for approval. The Committee requests to be kept informed on the working of the TEC and the NTIPC. In particular, it asks the Government to supply information on the allegations reviewed, the joint determinations made as to linkages with trade unionism, the measures adopted to expedite and monitor follow-up action, and the results achieved.
8. 1147. Furthermore, the Committee observes that the high-level ILO mission recommended the issuance of a high-level statement confirming respect for freedom of association and the basic civil liberties of trade union leaders and members and notes with interest the keynote address made by the Honourable Executive Secretary, Eduardo R. Ermita, at the opening of the National Tripartite Conference on Principles of Freedom of Association (Manila,
9. 2–4 December 2009). Accordingly, the Government has expressed the hope that, via the measures taken, it will dispel fears and allegations that it tolerates the persecution of labour leaders and trade union activists, which it does not, and never will, condone, since this is a reprehensible act that assaults tripartism and social dialogue. The Committee expects that this pledge will ensure that no effort is spared to guarantee that legitimate trade union activities can be exercised in a climate free of violence, pressure, fear and threats of any kind.
   • Extrajudicial killings
10. 1148. With respect to the newly alleged extrajudicial killings and attempted murders of trade union leaders, members, organizers and union supporters and informal workers, the Committee notes that, according to the report of the high-level ILO mission, the Government had indicated on numerous occasions that most killings were not labour related and thus not within the purview of Convention No. 87, and had described regrettable killings, such as in Hacienda Luisita, as the exception rather than the norm. With respect to the initial 39 cases of alleged killings of trade unionists, the Committee notes the information provided to the high-level ILO mission by the Government drawing from PNP reports. Task Force 211 had validated nine killings as falling within its mandate as related to unions. Out of the 39 cases, there had been only two convictions.
11. 1149. The Committee further notes the Government’s indication that Task Force 211 was doing everything it could to strengthen trust among the community, and had stepped up nationwide monitoring of cases involving political violence and extrajudicial killings pending before various prosecutors’ offices and courts nationwide. In that regard, it had concluded a Memorandum of Agreement (MoA) with the media and various law schools. Under the MoA, accredited volunteers from the media and law schools could attend the scheduled hearings of cases being monitored, apprise themselves of the proceedings, and record the incidents that transpire in the cases’ respective monitoring kits.
12. 1150. The Committee also notes the Government’s indication, in its reply of 15 January 2010, that the DOLE Secretary has requested the concerned government agencies to prioritize for fast investigation, prosecution and resolution, the cases raised before the ILO. The Government refers to the following measures taken: (i) establishment of a comprehensive inventory of the cases with identified future actions required in each case; (ii) provision of necessary institutional funds to the PNP for Task Force Usig and to the DOJ for Task Force 211, to further strengthen their operational capability; and (iii) conclusion of a technical agreement with the European Union to enhance the country’s criminal justice system, the EPJUST, in partnership with the DOJ, DND, Department of the Interior and Local Government, Office of the Ombudsman, AFP, PNP, CHRP, and civil society organizations.
13. 1151. Noting the ample information provided by Task Force 211 as to the status of the 39 cases of alleged killings, the Committee requests the Government to respond without delay to the new allegations of murder, and attempted murder, brought forward by the complainant in its communications dated 30 September and 10 December 2009. The Committee expects that these cases will also be reviewed by the national tripartite monitoring body to be created and asks the Government to indicate without delay the progress made in this regard.
14. 1152. While noting with interest the numerous efforts made by the Government to strengthen existing structures and create new ones aimed at following through on complaints with a view to convicting the guilty parties, the Committee regrets that, at present, the advances in prosecuting and convicting perpetrators of violence against trade unionists are still entirely insufficient. In particular, the Committee is deeply concerned that the information brought to its attention only refers to two convictions pronounced so far for these acts of extreme gravity, despite the fact that the incidents date as far back as 2001. Moreover, while the Government has shown that even the military are not immune from prosecution by its recent arrest of a Private First Class of the Philippine Army for eight extrajudicial killings, the Committee notes with regret that suspects have been identified in only 16 out of 39 individual cases and that proceedings have been instituted before the courts in only nine cases. Also, the Committee notes with regret that of the 19 cases being investigated, only 11 remained under investigation, since in eight cases the complainant was no longer interested in pursuing the case or had moved to an undisclosed place.
15. 1153. The Committee observes that, when providing information to the high-level ILO mission as to the status of the 39 cases of alleged killings, the Government did not single out the data concerning the investigation, prosecution and judicial proceedings in the Hacienda Luisita incident/in a strike, 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. The Committee therefore refers to the comments made above regarding the cases of alleged extrajudicial killings. In particular, noting that nine police officers had previously been identified as suspects in connection with the Hacienda Luisita incident and recommended to be charged for multiple homicide, the Committee requests the Government to provide specific information without delay as to the institution of judicial proceedings for this incident which dates back to 2004.
16. 1154. While noting the Government’s commitment to ensuring expeditious investigation, prosecution, and resolution of pending cases concerning alleged assassination of labour leaders and trade union activists, the Committee once again recalls that justice delayed is justice denied [see 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 [see Digest, op. cit., para. 52]. The Committee recalls that the initial allegations had referred to the insufficiency of the Witness Protection Programme (WPP) and the serious impact that this had on bringing the perpetrators of violence to justice. It notes that the Government itself acknowledges the difficulties which prevent the successful conclusion of the investigations, in particular, the lack or retraction of witnesses and lengthy procedures. The Committee trusts that the Government will continue to take the measures necessary for the full protection of witnesses, and will return to these issues below.
17. 1155. 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 [see 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 supply details without delay on the comprehensive case inventory referred to by the Government, and provide further information on the steps taken to fully investigate the pending allegations of extrajudicial killings and attempted murders, so that all responsible parties may be identified and punished before the competent courts as soon as possible and to combat a climate of impunity. Noting the indication of the PNP that, even without a formal blotter, alarm or report, the PNP commences investigation as long as the incident is brought to its attention through other means, the Committee expects that, even in the absence of formal filing of charges, all cases of murder are thoroughly investigated, and requests the Government to provide additional information on the manner in which the results of the tripartite deliberations of the NTIPC are fed into the investigation and prosecution processes of the other task forces and relevant bodies, including the CHRP. The Committee continues to support the recommendations made by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and urges to be kept informed of all progress made in their implementation.
18. 1156. The Committee finally notes the information provided to the high-level mission that a Bill “strengthening the Commission on Human Rights and for other purposes” was before the Congress. The Bill envisages expanding the Commission’s investigative powers and visitorial powers in detention centres and, in particular, providing it with new concurrent prosecutorial powers. In this regard, the Committee notes with interest that, under section 26(b), the CHRP would, in cases of extrajudicial killings, summary executions and “massacres” or mass killings, be able to formally recommend prosecution and ask the Government either to dismiss or to act on the recommendation. If the Government failed to act within 90 days, the CHRP would carry out the preliminary investigation itself and send the results to prosecution; if the Government persisted in its inaction for 30 days, the CHRP would deputize a prosecutor to pursue the case. The Committee notes from the high-level ILO mission report that the CHRP has raised the matter of prosecutorial powers because of the dismally low number of prosecutions. The Committee considers that the relevant state institutions for combating impunity need to continue to be strengthened and, in this regard, sees the proposed Act as an important step for bolstering the powers of this independent constitutionally-based national human rights body. The Committee requests the Government to keep it informed of the developments in relation to the adoption of further statutory support to the CHRP and to supply details of any new developments in the framework of EPJUST.
    • Abductions and enforced disappearances
19. 1157. The Committee notes the complainant’s new allegations regarding the abduction of Jaime “Jimmy” Rosios and the attempted abduction of Roy Velez, of trade union leaders or members.
20. 1158. With respect to the initial 11 cases of alleged abductions and enforced disappearances of trade unionists, the Committee notes the information from PNP reports provided to the high-level ILO mission that: six are under investigation; in one case, the alleged victim’s organization is non-existent; in two cases, victims moved to undisclosed places; no complaint was filed in one case; and there was no report of incident in another case. Furthermore, Task Force 211 could apparently only monitor cases of political violence, and did not deal with abductions. In addition, government agencies had been asked to prioritize for fast investigation, prosecution and resolution, all cases raised before the ILO.
21. 1159. The Committee observes with regret that the information supplied as to the status of the 11 cases of previously alleged abductions or enforced disappearances is scant, and that the Government has not yet replied to the additional cases of alleged abduction and attempted abduction brought forward in the complainant’s latest allegations. The Committee 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. It asks the Government to indicate the progress made in this regard and to provide any relevant court judgements.
22. 1160. Furthermore, the Committee notes the information provided to the high-level mission that a Bill “defining and penalizing the crime of enforced or involuntary disappearance and for other purposes” was before the Congress. It notes with interest that the Bill defines the term “enforced or involuntary disappearance” (section 3), and provides that the right against enforced or involuntary disappearance shall not be suspended under any circumstances including political instability, threat of war, state of war or other public emergencies (section 4). In addition, the Bill imposes heavy penalties upon persons who directly committed the act of enforced or involuntary disappearance, who directly forced, instigated, encouraged or induced others to commit the act, or who cooperated in the act. The Committee considers that the adoption of this Bill could represent an important step in acknowledging the existence of enforced disappearances and ensuring significant and dissuasive sanctions, and requests the Government to keep it informed of the progress made in its adoption, or of that of any other relevant legislative measures.
    • Witness protection
23. 1161. The Committee recalls that during the previous examination of this case, it had requested the Government to keep it informed of steps taken to amend the Witness Protection, Security and Benefit Act and, in general, to strengthen the WPP. The Committee notes from the report of the high-level ILO mission that the Government has identified the absence of witnesses or unwillingness to cooperate by members of the immediate families and the absence of a complaint or report filed before competent authorities as major obstacles to investigation and prosecution. Delays in prosecuting cases related to Convention No. 87 were, inter alia, due to the procedure which relies heavily on testimonial rather than forensic evidence and was impeded when witnesses retracted their statements because of threats or settlements reached with offenders or where witnesses were otherwise absent.
24. 1162. The Committee also notes the statement of the PNP, in the Government’s communication dated 5 February 2010, that the participation and cooperation of witnesses and families of victims is crucial to ensure the progress and success of the investigation. Although certain types of incidents such as alleged threats, harassments or abductions of trade unionists were not reported to the police, the PNP commenced investigation as long as the case was brought to its attention, e.g. through media or civil society organizations. However, in any criminal investigation, testimonial evidence was needed to support forensics, in order to achieve a guilty verdict beyond reasonable doubt, in particular in case of crimes that leave no or only weak trace evidence.
25. 1163. The Government had indicated, however, that the criticisms of the WPP were inaccurate and often the result of incomplete media reporting. The Government affirmed that of the 450 witnesses in a wide range of cases currently covered by the programme, only one witness had been lost and that was because the person had refused the security coverage. The Committee, however, notes with deep regret from the report of the high-level ILO mission that some of the meetings with the numerous individuals who had travelled long distances to explain their case took place in unknown locations due to the witnesses’ clear fear for their safety.
26. 1164. The Committee further notes from the high-level ILO mission report that the Supreme Court considered that the WPP was shown to be insufficient in some aspects. The Supreme Court, together with the CHRP, was reviewing the WPP on the writ of amparo adopted in 2007, and hoped that the “Proposed Rule to Strengthen Protection and Security of Aggrieved Parties Availing of the Writ of Amparo or their Witnesses, and Guidelines in the accreditation of persons and private institutions as sanctuary providers under the Writ of Amparo” would be adopted by the end of 2009.
27. 1165. Furthermore, the Committee notes with interest from the high-level ILO mission that the Bill seeking to strengthen the CHRP included the aspect of witness protection. While to date the WPP is administered by the DOJ, witnesses would be able to choose protection from either the DOJ or the CHRP. According to section 36 of the Bill, the Commission shall, in the conduct of its investigations, implement and manage a witness protection programme, including the provision of security, shelter, relocation and livelihood assistance to witnesses and their families.
28. 1166. The Committee recalls, 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. In this regard, the Committee considers that, even in the absence of a formal filing of charges, each case should be thoroughly investigated and, where witnesses have come forward, appropriate and adequate protection should be provided.
29. 1167. The Committee requests the Government to indicate the progress made in respect of the Bill relating to the powers of the CHRP and to supply the final text of the Act as soon as it is adopted. Moreover, the Committee requests to be kept informed on any further developments regarding the adoption and implementation of the proposed rule to strengthen protection and security of aggrieved parties availing of the writ of amparo or their witnesses, currently being elaborated by the Supreme Court and the CHRP.
    • Lengthy procedures
30. 1168. From the high-level ILO mission report, the Committee notes the Government’s indication that prosecution delays were, inter alia, due to case overload. Each prosecutor handled an average of 650 cases, and some courts had no assigned prosecutor. Some 30 to 40 criminal cases were calendared per day in court, and three to four criminal cases proceeded to trial on the same day. As a result, a criminal case was fortunate to have three trial sittings in one year.
31. 1169. In view of the above, the Committee wishes to recall, where legal proceedings are overly lengthy, the importance it attaches to such proceedings being concluded expeditiously, as justice delayed is justice denied [see Digest, op. cit., para. 104]. The Committee requests the Government to take the necessary measures to ensure the expeditious conclusion of proceedings in allegations of labour-related violence. In this regard, the Committee observes that the recommendations of the Melo Commission had, inter alia, emphasized the need for the creation of a special team of competent and well-trained prosecutors to handle the trials and of special courts to hear and try these cases. The Committee also observes that, as a result, the President of the Philippines had given instructions that special courts for the trial of charges involving unexplained killings of an ideological/political nature be created. The Supreme Court responded to the request by designating 99 regional trial courts as special tribunals to expeditiously resolve or decide the cases of extrajudicial killings. Trials would be terminated within 60 days and a judgement rendered within 30 days, priority would be given to cases of activists and media personnel and any dilatory pleadings or motions would be prohibited. The Committee requests the Government to supply information on the working of the 99 regional trial courts designated by the Supreme Court, and to provide detailed information on steps taken to create a special team of competent and well-trained prosecutors.
32. 1170. The Committee further notes from the report that the CHRP is finalizing its procedural “Omnibus Rules”, collating them with the “Anti-Red Tape Law”. Those rules would require cases to be treated within a maximum of one year. The Committee asks to be kept informed of any further developments regarding the adoption and implementation of the “Omnibus Rules” currently being elaborated by the CHRP.
    • Chain of command
33. 1171. The Committee recalls that it had previously requested 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.
34. 1172. The Committee notes the statement of the PNP, in the Government’s communication dated 5 February 2010, to the effect that instigators can only be indicted if there is proof to establish their authorship of the crime, and that, pursuant to Rule 130, Sec. 30 of the Rules of Court, the police need independent and convincing evidence to establish the culpability of masterminds and cannot prematurely charge or incriminate any person based on hearsay or speculation.
35. 1173. The Committee considers that investigations should focus not only on the individual author of the crime but also on the intellectual instigators in order for true justice to prevail and to meaningfully prevent any future violence against trade unionists. It is crucial that the responsibility in the chain of command also be duly determined when crimes are committed by military personnel or the police so that the appropriate instructions can be given at all levels and those with control held responsible in order to effectively prevent the recurrence of such acts. With reference to the recommendations made by the Melo Commission, the UN Special Rapporteur, and the National Consultative Summit, the Committee asks the Government to indicate the measures envisaged to implement the doctrine of command responsibility, as it is understood in international law, in respect of all acts of violence.
36. 1174. Also, the Committee had previously requested 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. In this regard, the Committee notes with interest the Government’s indication that it has provided the necessary institutional funds to the PNP for Task Force Usig and to the DOJ for Task Force 211, to further strengthen their operational capacity.
    • Harassment and intimidation: Militarization of workplaces
37. 1175. The Committee had previously requested: (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 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; and (iv) the communication of the Government’s observations on the allegations of harassment and intimidation of trade union leaders and members affiliated to the KMU.
38. 1176. With respect to the initial allegations of harassment and intimidation, the Committee notes the information provided to the high-level ILO mission that 16 cases of alleged harassment had been identified, of which, in three cases, arrest warrants were issued; in three cases no harassment had occurred; six cases were under investigation; in three cases the complainant has moved overseas or to an undisclosed place; and in one case the alleged victim’s organization did not exist. Five out of the 16 identified cases have been referred to the CHRP.
39. 1177. The Committee observes that the new allegations of harassment and intimidation refer to: (i) listing in the military’s Order of Battle (Romualdo Basilio – KMU–SMR Chairperson, Omar Bantayan – KMU–SMR Secretary-General; and Joel Maglungsod – ANAKPAWIS Partylist Representative, former KMU–SMR Secretary-General and also former KMU Secretary-General); (ii) vilification of Rene “Boyet” Galang, President of ULWU and UMA, as member of the NPA; (iii) harassment and intimidation of Gaudencio Garcia, President of the Universal Robina Corporation Employees’ Union – Farm Division, by military elements who approached him inviting him to become a military agent, forced him to sign a paper confessing NPA membership and included him in the “Rizal 26” accused of murder; (iv) death threats against, and surveillance of, Vicente Barrios, President of NAMASUFA–NAFLU–KMU; (v) surveillance and tailing of Arman Blase, Board of NAMAOS and spokesperson of the KMU, Southern Mindanao; (vi) harassment of Belen Navarro Rodriguez, wife of Ariel Rodriguez (active member of the Pacific Cordage Workers’ Association); (vii) surveillance of Leo Caballero, spokesperson of the KMU–Bicol Human Rights Desk; (viii) harassment and intimidation of officers and active members of AMADO KADENA–NAFLU–KMU; (ix) continuous surveillance, intimidation, threat and harassment against officers and active members of the UFE–DFA–KMU Nestlé Cabuyao union since the start of its strike in 2002, including surveillance and harassment of union activities such as meetings, protest actions and peaceful picketing by police and military in uniform or civilian clothes and false criminal charges against, and blacklisting from employment of 250 union members; (x) military intimidation of Luz Fortuna, wife of slain Nestlé Cabuyao union leader Diosdado Fortuna; and (xi) continuous intimidation and surveillance of officers of Workers of Tritran Union-Independent by the military. The Committee requests the Government to communicate its observations on the above allegations of harassment and intimidation of trade union leaders and members affiliated to the KMU.
40. 1178. The Committee supports the conclusion of the high-level mission that incidents of intimidation by the armed forces need to be independently investigated and rapidly redressed. In this context, the Committee notes with interest that, according to section 26(a) of the Bill strengthening the CHRP, its expanded powers would also come into play in case of use of physical, psychological and degrading punishment, torture, force, violence, threats and intimidation. The Committee requests to be kept informed of the progress made in ensuring the full and swift investigation of the alleged acts of harassment and intimidation.
41. 1179. As regards the alleged listing of trade unionists in so-called “order of battle”, the Committee notes with concern from the report of the high-level mission the indications, including from government bodies, that the AFP does maintain “order of battle” lists featuring trade unionists. While the army often denied this, and the actual practice depended on the army commander in charge, the high-level mission was told that this fact had been admitted by an army general in recent cases. The Committee considers that such measures go against the duty to take all appropriate measures 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. In this regard, it notes with interest that, according to section 17 of the Bill concerning enforced or involuntary disappearance, an “order of battle” or any order from a superior officer or a public authority causing the commission of enforced or involuntary disappearance is unlawful and cannot be invoked as a justifying circumstance. Any person receiving such an order shall have the right to disobey it. The Committee requests to be kept informed on further developments in this respect and on any additional measures taken to suppress “order of battle” which lead to the commission of acts of violence against trade unionists on the basis of their purported ideology.
42. 1180. As regards militarization of workplaces, the Committee observes that the new allegations concern: (i) massive military deployment from the 66th IB of the AFP since September 2008 and incidents of military harassment against MUWU, NAMAOS, NAMASUFA and NAMASAN, Packing Plant 92 Workers’ Union and Rotto Freshmax Workers’ Union; (ii) conduct of meetings by military in September 2009 at the Universal Robina Corporation Employees’ Union – Farm Division, lecturing workers that they should dissociate from the KMU; (iii) since November 2008, deployment of the 66th IB in the vicinity of Sumitomo Fruits Corporation with military entering the premises on a daily basis during the management’s refusal to implement the latest CBA with NAMAOS, conducting daily forums, showing videos vilifying the KMU and NAMAOS as NPA supporters, and conducting a survey to identify the whereabouts of union leaders and members in January 2009; (iv) in 2006, deployment of the 28th IB of the AFP in the vicinity of the Suyapa Farm to watch over the union, with armed men on motorbikes patrolling the vicinity of the workplace and asking the whereabouts of union President Vicente Barrios and of the union’s activities; (v) in February 2008, deployment of the 71st, 48th and 69th IBs in the different barangays (villages) surrounding the Hacienda Luisita, conducting meetings with film screenings saying that “communism” is behind unions and strikes, and monitoring activities of ULWU leaders; (vi) the military conducting film screenings of “Knowing Your Enemy” to farm workers in the Cagayan Valley, Bukidnon and Davao del Sur, tagging the different activist organizations like the KMU as communist fronts; (vii) deployment of AFP elements in Polomolok, Cotabato, where AMADO KADENA–NAFLU–KMU is active, openly accusing the KMU leaders as NPA recruiters, conducting programmes such as the “integrated territorial defence system” or psy-war operations in the community, red-baiting and smear campaigns against the KMU and Anakpawis Partylist, “social awareness programme, industrial safety focus seminars” to espouse anti-KMU and anti-union orientation; and (viii) in Bicol, deployment of the AFP Community Organizing, Recovery and Development (ACORD) Team and the BDS in worker communities near the Pacific Cordage Corporation. The Committee urges the Government to communicate its observations on these new allegations.
43. 1181. The Committee notes from the high-level mission report that the AFP has indicated that it handled insurgencies and did not carry out functions related to labour relations. Law enforcement authorities would step in only when all peaceful means of resolving disputes were exhausted. If a labour dispute led to unrest, then the police would come in to ensure nobody got hurt. Rules of engagement had been developed for the police forces to deal with acts of violence at rallies. Police forces could not just intervene at will, but had to be deputized by DOLE for labour disputes, unless violence or a specific crime was involved. The AFP had a crowd dispersal unit, which the police, when deputized by DOLE, would call upon if it could not cope. The military had admitted, however, to the holding of community meetings in relation to trade unions and worker representation. An AFP representative explained that the AFP was facing an insurgency, which focused on workers for recruitment. In order to insulate workers, the AFP was implementing the Integrated Area Security and Public Safety System and the Integrated Territorial Defence System, teaching people how to protect themselves from false awareness campaigns. One of the system measures involved the military conducting humanitarian activities, as well as public information campaigns to keep people out of communist hands. The first step in successful counter-insurgency was to engage the community and establish good relations, and it was possible that this might lead to perceptions of harassment. The AFP saw it as its role to protect people and keep them from joining the insurgency. Involvement in labour disputes was not part of the DND–AFP mandate, but there were times that the DND–AFP thought a link with their mandate existed, and investigated further. Talking to trade union members was not harassment, but was simply talking to a group of community members, which was much easier and time and cost efficient.
44. 1182. The Committee stresses that, while the military clearly has a key role to play in ensuring law and order in the country, blanket linkages of trade unions to the insurgency had a stigmatizing effect and often placed union leaders and members in a situation of extreme insecurity. In this context, the Committee notes from the report that the military officers with whom the high-level mission met, recognized their lack of experience or knowledge in respect of trade union rights and their links to civil liberties and welcomed training in this regard.
45. 1183. The Committee welcomes the Government’s commitment within the framework of the technical cooperation proposal to elaborate a combined human rights, trade union rights and civil liberties programme for the forces of order (in particular PNP and the AFP) and expects that such activities can be conducted in the near future and in coordination with the CHRP. The Committee urges the Government to keep it informed of the progress made in this regard, as well as of any progress made in updating the Guidelines for the Conduct of the PNP, Private Security Guards and Company Guard Forces during Strikes, Lockouts and Labor Disputes.
46. 1184. The Committee further expects that the Government will take the necessary accompanying measures, including the issuance of appropriate high-level instructions, to: (i) 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) 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; and (iii) 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 their leaders and members. The Committee requests to be kept informed in this regard.
    • Arrest and detention
47. 1185. The Committee notes the new allegations of arrest and detention, and subsequent filing, of criminal charges against trade unionists brought forward by the complainant, including: (i) the detention of 20 workers of Karnation Industries since 10 May 2007 at the Karangalan jail for exercising their right to unionize and struggle against allegedly unjust and illegal practices of their employer; (ii) the illegal arrest, detention since 7 May 2007, and filing of a trumped-up criminal case against Vincent Borja, KMU national council member and the KMU Eastern Visayas Regional Coordinator; (iii) the filing of fabricated criminal cases against AMADO KADENA officers and members; (iv) the filing of trumpedup charges of multiple murder, attempted murder, and multiple attempted murder against PAMANTIK–KMU Chairman, Romeo Legaspi, and other union officers; (v) the criminalization of some 250 workers of Nestlé Cabuyao, charged with an average of 37 criminal cases each, before the Municipal Trial Court in Cabuyao and the Regional Trial Court in Biñan; (vi) the re-filing of trumped-up murder and attempted murder cases in Calapan City, Mindoro Oriental, against 72 persons, of which 12 are trade union leaders and advocates; and (vii) the illegal arrest and detention of attorney Remigio Saladero Jr, chief legal counsel of the KMU, on fabricated charges of arson, murder, multiple murder, and attempted multiple murder.
48. 1186. In particular, the Committee notes with deep concern from the complainant’s allegations, that, for more than two and a half years, the workers of Karnation Industries had been imprisoned, without judgement, in allegedly appalling conditions (prison cell not allowing 20 persons to sleep at the same time; inadequate food and medical care, etc.). Two of the 20 workers – Melvic Lupe and Leo Paro – died in jail of tuberculosis. In November 2009, under the counsel of attorney Remigio D. Saladero of the Pro-Labor Legal Assistance Center (PLACE), the Regional Trial Court in Morong, Rizal, granted the workers’ petition for bail. Fourteen out of the 18 Karnation workers have been temporarily released after posting bail (through a surety bond). However, the release of the remaining four workers was put on hold by the court after the complainant filed, on 28 December 2009, a motion for reconsideration to revoke the granting of bail. The court is scheduled to hear the motion on 11 January 2010.
49. 1187. The Committee notes with interest the Government’s indication that the request of the DOLE Secretary for the concerned government agencies to prioritize the fast investigation, prosecution and resolution of the cases raised before the ILO, included the case of attorney Remigio Saladero and has produced positive results with the dismissal of all three charges against him. However, the Committee expresses deep regret that the Government does not provide any information on the remaining allegations of illegal arrest and detention and subsequent filing of fabricated charges. It requests the Government to communicate its observations in respect of the allegations regarding the 20 workers of Karnation Industries and, in particular, as regards the continuing detention of four of these workers; the KMU national council member and Eastern Visayas Regional Coordinator Vincent Borja; the AMADO KADENA officers and members; the PAMANTIK–KMU Chairman Romeo Legaspi and other union officers; the 250 workers of Nestlé Cabuyao; and the 72 persons in Calapan City/Mindoro Oriental, of which 12 are trade union leaders and advocates.
50. 1188. As regards the alleged instances of arrest, with subsequent filing of charges, the Committee emphasizes 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 [see Digest, op. cit., para. 70]. As for the alleged link between the illegal arrests and detentions and the exercise of legitimate trade union activities, the Committee is not in a position to determine, on the basis of the information brought before it, whether these cases concern trade union activities. The Committee recalls that the detention of trade unionists for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general, and with trade union rights in particular [see Digest, op. cit., para. 64]. The Committee requests the Government to submit further, and as precise, information as possible in relation to these arrests and the legal or judicial proceedings upon which they are based.
51. 1189. As regards the considerable delays in the judicial process, the Committee reiterates that justice delayed is justice denied [see Digest, op. cit., para. 105]. It also wishes to emphasize that, although the exercise of trade union activity, or the holding of trade union office, does not provide immunity as regards the application of ordinary criminal law, the continued detention of trade unionists, without bringing them to trial, may constitute a serious impediment to the exercise of trade union rights [see Digest, op. cit., para. 82]. The Committee requests the Government to take all necessary measures so as to ensure that the investigation and judicial examination of all cases of alleged illegal arrests and detention proceed in full independence, and without further delay, so as to shed full light on the current situation of those concerned and the circumstances surrounding their arrest.
52. 1190. Regarding, in particular, the workers of Karnation Industries, the Committee wishes to recall that preventive detention should be limited to very short periods of time, intended solely to facilitate the course of a judicial inquiry [see Digest, op. cit., para. 78]. The prolonged detention of persons without bringing them to trial, because of the difficulty of securing evidence under the normal procedure, is a practice which involves an inherent danger of abuse; for this reason it is subject to criticism [see Digest, op. cit., para. 81]. The Committee notes with deep regret that the workers of Karnation Industries have been detained without judgement for more than two and a half years, and urges the Government to take the necessary measures to ensure that any of those workers still imprisoned are immediately released.
53. 1191. Should the investigation of the pending allegations lead to the determination that the persons concerned were detained in relation to their legitimate trade union activities (including the holding of a lawful strike), the Committee requests the Government to take the necessary measures to ensure that all remaining charges are dropped. It also requests the Government to communicate the texts of any judgements handed down in the above cases, together with the grounds adduced therefore.
54. 1192. In conclusion, while observing that problems of impunity and insufficient guarantees for the respect of the rule of law still persist, the Committee is encouraged by the positive attitude demonstrated by the Government in accepting the high-level ILO mission and commencing a series of concrete steps, including the elaboration of a three- to four-year technical cooperation programme aimed at, among other things, the awareness raising and information dissemination in relation to trade union rights and civil liberties and the combating of impunity. The Committee expects that the steps taken and envisaged by the Government will make an important contribution to progressively ensuring a climate of justice and security for trade unionists in the Philippines, and requests the Government to continue to keep it informed of all progress made in this regard.