Effect given to the recommendations of the committee and the Governing Body - Report No 370, October 2013

Case No 2528 (Philippines) - Complaint date: 31-OCT-06 - Follow-up

Effect given to the recommendations of the Committee and the Governing Body

1. 75. The Committee last examined this case at its June 2012 meeting [see 364th Report, paragraphs 913–970], at which time it made the following recommendations:
   • (a) The Committee welcomes the measures taken by the Government so far and requests the Government to continue to keep it informed of the steps taken and envisaged to ensure a climate of justice and security for trade unionists in the Philippines.
   • (b) Noting the efforts made by the Government to involve the KMU in the resolution of the cases involving its members and leaders, the Committee expects that the Government will continue to engage with the KMU in dealing with these cases and invites the complainant organization to cooperate as far as possible with the Government to this end. The Committee requests to be kept informed in this respect.
   • (c) With respect to the alleged extrajudicial killings, the Committee:
     • (i) reiterating that such cases should, due to their seriousness, be investigated and, where evidence exists, prosecuted ex officio without delay, urges the Government to do its utmost to ensure the swift investigation and prosecution as well as a fair and speedy trial for the remaining four on-trial cases, the four cases still under investigation by the DOJ (particular regard being had to the peculiar circumstances of the case of Samuel Bandilla) and the four CHR cases referred back to the PNP Task Force Usig and the CHR for further investigation, and requests the Government to keep it informed of any developments in this respect;
     • (ii) expressing its deep concern that, as regards the Hacienda Luisita incident, the Government indicates that the case of John Jun David et al. has been dismissed because the accused are at large but that steps are being taken to reopen investigation with a view to identifying the perpetrators and apprehending them, the Committee expects that the Government will do its utmost to ensure that the investigation is pursued and that the guilty parties are brought to trial and convicted;
     • (iii) concerning the allegations of murder and attempted murder, brought forward by the KMU in communications dated 30 September and 10 December 2009 as well as 2 June 2010, expects that these cases will be reviewed by the TIPC and that the Government will make every effort to ensure the speedy investigation, prosecution and judicial examination of these new allegations, and urges the Government to indicate without delay the progress made in this regard; and
     • (iv) requests the Government to keep it informed of developments in the procedure of indictment of General Palparan for failing to prevent, punish or condemn killings that took place under his command responsibility.
   • (d) As to the alleged cases of abduction and enforced disappearance, the Committee:
     • (i) firmly expects that the cases of abduction recommended for closure due to unavailability of witnesses or for lack of interest of the parties to pursue the case, will be the subject of inquiries and investigations for evidence including forensic evidence, and expects that the Government will soon be in a position to inform on progress made in investigating and prosecuting without delay all cases of abduction and enforced disappearance and provide any relevant court judgments; and
     • (ii) further requests the Government to keep it informed of the progress made in the adoption of the Bill “defining and penalizing the crime of enforced or involuntary disappearance and for other purposes”, or of any other relevant legislative measures.
   • (e) As to the issue of lengthy procedures, the Committee:
     • (i) noting the information concerning action taken by the Supreme Court to expedite the resolution of cases of extrajudicial killings, requests the Government to supply information on the working of the regional trial courts, including on the length of procedures in practice; and
     • (ii) requests the Government once again to provide information regarding the adoption and implementation of the “Omnibus Rules” elaborated by the CHR, which would require cases to be treated within a maximum of one year.
   • (f) Furthermore, the Committee requests the Government to keep it informed on: (i) the review by the Supreme Court and the CHR of the witness protection programme on the Writ of Amparo adopted in 2007; (ii) any application of the Anti-Torture Act No. 9745; and (iii) any application of Act No. 9851 on crimes against international humanitarian law, genocide, and other crimes against humanity.
   • (g) In relation to the alleged cases of harassment and intimidation, the Committee:
     • (i) requests the Government to keep it informed on the outcome of the discussion by the National TIPC Monitoring Body of all remaining alleged acts of harassment;
     • (ii) trusting that due account is being taken of the fact that victims of acts of intimidation or harassment might refrain from lodging a complaint out of fear, requests the Government to indicate the progress made in ensuring their full and swift investigation and resolution;
     • (iii) requests the Government to keep it informed on further progress achieved towards facilitating the settlement of labour disputes.
   • (h) As regards the alleged militarization of workplaces, the Committee:
     • (i) once again urges the Government to communicate its observations on the outstanding allegations;
     • (ii) the PNP Guidelines on the accountability of the immediate officer for the involvement of his subordinates in criminal offences to strengthen command responsibility; and
     • (iii) requests the Government to continue to keep it informed regarding the measures taken or envisaged, in particular the issuance of appropriate high-level instructions, to: (a) 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; (b) 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 (c) 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.
   • (i) With respect to the alleged cases of arrest and detention, the Committee:
     • (i) urges the Government to communicate its detailed observations, including further specific information in relation to the arrests and the legal or judicial proceedings upon which they were based, in respect of the allegations of illegal arrest and detention regarding the AMADO–KADENA officers and members; the 250 workers of Nestlé Cabuyao; and the 72 persons in Calapan City, Mindoro Oriental, of which 12 are trade union leaders and advocates;
     • (ii) once again requests the Government to take all necessary measures so as to ensure that the investigation and judicial examination of all cases of illegal arrest 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; and also requests the Government to communicate the texts of any judgments handed down in the above cases, together with the grounds adduced therefore; and
     • (iii) while welcoming the information provided by the Government that all the (19) workers of Karnation Industries are now out on bail, trusts that this case will be concluded without delay and requests the Government to keep it informed in this regard.
   • (j) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of the matters dealt with in this case.
2. 76. In its communication dated 2 May 2013, the Government indicates that, as regards the 39 extrajudicial killings:
   • (i) from the four cases before the courts:
     • – in the case of Teotimo Dante, four persons were convicted on 28 May 2012;
     • – the case of Ricardo Ramos resulted in the acquittal of the accused person on 7 February 2012 for failure to prove his guilt beyond reasonable doubt;
     • – in the case of Antonio Pantonial, one person was convicted for murder and the issuance of an arrest warrant was ordered for two accused presently at large;
     • – in the case of William Tadena, the hearings have been concluded and the decision is pending.
   • (ii) from the 11 cases before the Department of Justice (DOJ):
     • – five cases (Paquito Díaz, Victoria Samonte, Abelardo Ladera, Rolando Mariano and Samuel Bandilla) had been previously dismissed at the prosecution level, and the DOJ directed the Office of the Prosecutor-General to reinvestigate and resolve the said cases;
     • – the DOJ considered reopening three archived cases (Noel Garay, Ramon Namuro and John Jun David et al.) for reinvestigation by the Prosecutor General.
     • – the DOJ considered reopening three cases that are under investigation (Leodegario Punzal, Samuel Dote, and Tirso Cruz).
   • (iii) from the four cases that had been referred back to the Commission on Human Rights (CHR) and Philippine National Police (PNP)-Task Force Usig for further investigation (the Monitoring Body of the National Tripartite Industrial Peace Council (NTIPC-MB) Resolution No. 1, Series of 2012):
     • – in the cases of Jesus Butch Servida and Gerardo Cristobal, the PNP-Task Force Usig determined that these are two separate cases and recommended that they be treated and investigated as regular cases due to lack of evidence of a link to the exercise of trade union rights;
     • – the case of Armando Leabres-Pallarca is recommended for closure by the PNP Task Force Usig due to lack of witnesses and desistance to pursue the case; and
     • – in the case of Gerson Lastimoso, the suspects have not yet been identified, and the PNP-Task Force Usig has recommended investigating the case as a regular police case due to absence of a labour dispute or trade union campaign that could link the incident to the exercise of freedom of association.
3. The recommendations are being considered by the NTIPC-MB.
   • (iv) Two cases had been permanently dismissed (Ronald Andrada and Angelito Mabansag) and 18 cases had been recommended for closure through NTIPC-MB Resolution No. 2 (Series of 2010) and Resolution No. 1 (Series of 2011), due to desistance or disinterest to pursue the case or lack of witnesses, without prejudice to its reopening should new leads or evidences be available.
4. 77. The Government further indicates that, as regards the 11 cases of abduction and enforced disappearances:
   • (i) two cases (Robin Solano et al. and Ronald Intal) had been, through Resolution No. 2, Series of 2012, recommended for closure by the NTIPC-MB, without prejudice to their reopening should new leads or evidence be available;
   • (ii) as regards the remaining nine cases that had been referred to the appropriate agencies for further investigation and subsequently forwarded to the DOJ:
     • – in the case of Virgilio Calilap, et al, only one person (Bernabe Mendiola) remains missing up to this date but the person who alleged abduction at the police station is unwilling to make a sworn statement; the PNP-Task Force Usig has recommended investigating the case as a regular police case due to absence of a labour dispute or trade union campaign that could link the incident to the exercise of freedom of association;
     • – Perseus Geagoni is the accused in the criminal case of rebellion docketed as CC No. 1367, and the Regional Trial Court (RTC), Branch 55 of Himalayan City, has issued a warrant of arrest against him; the PNP-Task Force Usig has recommended investigating the case as a regular police case for the above reasons;
     • – in the case of Rogelio Concepcion, there is a lack of witnesses; and the PNP Task Force Usig has recommended investigating the case as a regular police case for the above reasons;
     • – in the case of Leopoldo Ancheta, there is a lack of witnesses, and the PNP-Task Force Usig has recommended investigating the case as a regular police case for the above reasons; and
     • – in the case of Lourdes Rubrico, the victim filed a case against three accused persons with the Deputy Ombudsman for the Military, which was dismissed on 11 June 2010;
     • – in the case of Normelito Galon et al, the case filed in 2009 by the Philippine Economic Zone Authority (PEZA) against Normelito Galon, Aurora Afable and 13 other persons was dismissed; the PEZA Special Investigation Team created in 2007 recommended on 19 October 2012 to consider the case closed, since it had found no direct evidence that could link Phils-Jeon officials to the incident and the complainants and witnesses had been unable to identify the perpetrators.
     • – Jaime Rosios is wanted in the criminal case of arson docketed as CC No. 6788 (RTC of Koronodal City); there is no evidence for the alleged abduction;
     • – as to Rafael Tarroza, no abduction case has been reported, and it appears that he is now residing in an undisclosed place; the PNP-Task Force Usig has thus recommended the closure of the case.
5. The above recommendations are being considered by the NTIPC-MB.
6. 78. The Government adds that out of the 12 cases of harassment, five have been recommended for closure by the NTIPC-MB without prejudice to their reopening should new evidence be available, and seven cases have been the subject of Resolution No. 3 (Series of 2012) whereby the CHR was requested to expedite their resolution (Fresh Banana Agricultural Corporation – Osmiguel; Fresh Banana Agricultural Corporation – Suyapa; Members of Sulpicio Lines Workers’ Union; and Edison Alpiedan et al.).
7. 79. Lastly, with respect to the additional list of incidents alleged by the complainant in their communications dated 30 September and 10 December 2009:
   • (i) one case of extrajudicial killing (Maximo Barranda) was classified as possibly not labour-related (NTIPC-MB Resolution No. 7, Series of 2012) since the alleged facts would not constitute an infringement of freedom of association;
   • (ii) from two cases of harassment and intimidation, one case (Farm workers in the Cagayan Valley, Bukidnon and Davao del Sur) was classified as possibly not labour related (NTIPC-MB Resolution No. 7, Series of 2012) and one case (Remigio Saladero) was recommended for closure;
   • (iii) the remaining cases were referred to the concerned agencies for prompt action; information and recommendations will be considered by the NTIPC-MB.
8. 80. The Committee takes due note of this information.
9. 81. With respect to the alleged extrajudicial killings, the Committee reiterates that such cases should, due to their seriousness, be investigated and, where evidence (not necessarily in the form of witnesses) exists, prosecuted ex officio without delay (regardless of desistance or disinterest of the parties to pursue the case). Noting the reasons given for the recommendation to treat certain cases of killings as regular police cases, the Committee further emphasizes that the mere absence of a labour dispute or trade union campaign does not necessarily preclude any connection of the crime with the exercise of trade union activities, membership or office.
10. 82. Furthermore, welcoming the Government’s indication that the case of John Jun David et al. (Hacienda Luisita incident) has been reopened for investigation by the Prosecutor General with a view to identifying the perpetrators and apprehending them, the Committee expects that the Government will do its utmost to ensure that this investigation is pursued thoroughly and expeditiously and that the guilty parties are brought to trial and convicted. The Committee urges the Government to do its utmost to ensure the swift investigation and prosecution as well as a fair and speedy trial for the other ten cases still under investigation by the DOJ (particular regard being had to the peculiar circumstances of the case of Samuel Bandilla), the remaining on-trial case, and the four cases referred back to the PNP-Task Force Usig and the CHR for further investigation, and requests the Government to keep it informed of any developments in this respect.
11. 83. While noting the information provided by the Government concerning the additional list of incidents brought forward by the KMU, the Committee expects that the totality of cases of murder and attempted murder alleged on 30 September and 10 December 2009 as well as 2 June 2010, will be reviewed by the TIPC and that the Government will make every effort to ensure the speedy investigation, prosecution and judicial examination of these allegations; and urges the Government to indicate without delay the progress made in this regard. The Committee also requests the Government to keep it informed of developments in the procedure of indictment of General Palparan for failing to prevent, punish or condemn killings that took place under his command responsibility.
12. 84. As to the alleged cases of abduction and enforced disappearance, the Committee firmly expects that the cases of abduction recommended for closure due to unavailability of witnesses or for lack of interest of the parties to pursue the case, will be the subject of inquiries and investigations for evidence including forensic evidence. Noting the reasons given for the recommendation to treat certain cases of abductions as regular police cases, the Committee further emphasizes that the mere absence of a labour dispute or trade union campaign does not necessarily preclude any connection of the crime with the exercise of trade union office, membership or activities. The Committee once again firmly expects that the Government will soon be in a position to inform on progress made in the investigation, prosecution and trial without delay of all cases of abduction and enforced disappearance and provide any relevant court judgments. It further requests the Government to keep it informed of the progress made in the adoption of the Bill “defining and penalizing the crime of enforced or involuntary disappearance and for other purposes”, or of any other relevant legislative measures.
13. 85. In relation to the remaining alleged cases of harassment and intimidation, the Committee, trusting that due account is being taken of the fact that victims of acts of intimidation or harassment might refrain from lodging a complaint out of fear, requests the Government to indicate the progress made in ensuring their full and swift resolution by the CHR and requests the Government to keep it informed on the outcome.
14. 86. In the absence of any information provided by the Government concerning the previous recommendations (e), (f) and (i), the Committee is bound to recall the following points:
    • As to the issue of lengthy procedures, the Committee, noting the information concerning action taken by the Supreme Court to expedite the resolution of cases of extrajudicial killings, once again requests the Government to supply information on the working of the regional trial courts, including on the length of procedures in practice; and the adoption and implementation of the “Omnibus Rules” elaborated by the CHR, which would require cases to be treated within a maximum of one year.
    • Furthermore, the Committee once again requests the Government to keep it informed on: (i) the review by the Supreme Court and the CHR of the witness protection programme on the Writ of Amparo adopted in 2007; (ii) any application of the Anti-Torture Act No. 9745; and (iii) any application of Act No. 9851 on crimes against international humanitarian law, genocide, and other crimes against humanity.
    • With respect to the alleged cases of arrest and detention, the Committee:
      • (i) once again urges the Government to communicate its detailed observations, including further specific information in relation to the arrests and the legal or judicial proceedings upon which they were based, in respect of the allegations of illegal arrest and detention regarding the AMADO–KADENA officers and members; the 250 workers of Nestlé Cabuyao; and the 72 persons in Calapan City, Mindoro Oriental, of which 12 are trade union leaders and advocates;
      • (ii) once again requests the Government to take all necessary measures so as to ensure that the investigation and judicial examination of all cases of illegal arrest 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; and also requests the Government to communicate the texts of any judgments handed down in the above cases, together with the grounds adduced therefore; and
      • (iii) while welcoming the information provided by the Government that all the (19) workers of Karnation Industries are now out on bail, firmly trusts that this case will be concluded without delay and once again requests the Government to keep it informed in this regard.
15. 87. As regards recommendations (h) and (g)(iii), given that part of the allegations in this case refer to general harassment and militarization of the workplace being addressed in Case No. 2745, the Committee will pursue its further examination of these matters within the framework of Case No. 2745.