Rapport intérimaire - Rapport No. 387, Octobre 2018

Cas no 3185 (Philippines) - Date de la plainte: 05-FÉVR.-16 - Actif

Allegations: The complainant organizations allege the extrajudicial killings of three trade union leaders and denounce the failure of the Government to adequately investigate these cases and bring the perpetrators to justice. The complainants further allege the use of threats and murder attempts against a fourth trade union leader and his family, who have been forced into hiding, and denounces the Government’s failure to adequately investigate this case and protect the victims. The failure to investigate and prosecute in these cases would have reinforced the climate of impunity, violence and insecurity with its damaging effect on the exercise of trade union rights

1. 629. The Committee last examined this case at its October–November 2017 meeting, when it presented an interim report to the Governing Body [see 383rd Report, paras 538–560, approved by the Governing Body at its 331st Session (November 2017)].
2. 630. The Government forwarded additional observations in communications dated 7 February and 28 September 2018.
3. 631. 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. 632. At its October–November 2017 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) Noting with interest the recent tripartite event for the purpose of launching a two-year technical cooperation project on freedom of association and collective bargaining, at which the tripartite partners signed the Tripartite Manifesto of Commitment and Collective Effort to Sustain Observance and Further Improvement in the Application of the Principles of Freedom of Association and Collective Bargaining, the Committee requests the Government to continue to keep it informed of further efforts made or envisaged to ensure a climate of justice and security for trade unionists in the Philippines and combat impunity more effectively. More specifically, the Committee asks the Government to provide information relating to the previously evoked Tripartite Validating Team established for the present case, its functioning and the outcome of its work.
   • (b) Recalling that the three murders under examination, like the vast majority of extrajudicial killings before the IAC, were found not to meet the criteria of AO 35, the Committee considers that the Government should ensure that, with respect to the working of the non-judicial monitoring bodies such as the IAC or the RTMBs, the criteria used for screening cases for its consideration should be broader than the judicial criteria used by the courts, so as to not unduly exclude possible freedom of association cases and to ensure that labour activity or trade union function, even though other factors may be being considered, give rise to an in-depth review of the possible motivation. The Committee trusts that its considerations will be made available to the IAC technical working group and requests the Government to keep it informed: (i) on the outcome of the renewed review by the IAC of the murders of the three trade union leaders Antonio “Dodong” Petalcorin, Emilio Rivera and Kagi Alimudin Lucman and, in case of a definitive exclusion from AO 35, on the precise reasons therefore; and (ii) on any resolutions issued by the NTIPC-MB concerning the three extrajudicial killings.
   • (c) Observing that a case for murder has been filed on 8 March 2017 against the identified suspects in the killing of Antonio Petalcorin, the Committee expects that the perpetrators will be brought to trial and convicted without further delay, and requests the Government to keep it informed of the progress made in this regard and to provide a copy of the relevant judgments as soon as they are handed down.
   • (d) In view of the obstacles invoked by the Government to the investigation and prosecution of the remaining killings of trade unionists, the Committee generally requests the Government to take measures, if necessary of legislative nature, to ensure that crimes of such serious nature are investigated and (where evidence exists) prosecuted motu proprio, i.e. regardless of the desistance, disinterest or non-cooperation of the victim’s family or other parties to pursue the case, and even in the absence of a formal criminal complaint being lodged by the injured party.
   • (e) Furthermore, the Committee trusts that the national criminal system will be assisted to increase the capacity to collect forensic evidence and move away from the de facto excessive reliance on testimonial evidence, so that the lack or retraction of witnesses no longer impedes progress in the investigation and prosecution of cases. More specifically, the Committee expects the Government to take all necessary measures so as to ensure that the investigation and judicial examination of the alleged acts of extrajudicial killings, even if not committed by state actors, advance successfully and without delay so as to identify, bring to trial and convict the perpetrators so as to prevent the repetition of such acts. It requests the Government to keep it informed in this respect.
   • (f) The Committee requests the Government to take further measures to ensure the effective protection of potential victims, whether through formal or less formal avenues, in line with the principles enunciated in its conclusions.
   • (g) The Committee draws the special attention of the Governing Body to the serious and urgent nature of the matters dealt with in this case.

B. The Government’s reply

1. 633. In its communication dated 7 February 2018, the Government provides information on steps taken and updated information concerning the cases at hand. The Government reiterates the commitment made on 13 September 2017 with the ceremonial signing of the Tripartite Manifesto of Commitment and Collective Effort to Sustain Observance and Further Improvement in the Application of the Principles of Freedom of Association and Collective Bargaining. The Government stresses that its recent ratification of Convention No. 151 on labour relations in the public service further attests to its ongoing commitment to promote freedom of association in the country.
2. 634. More specifically, the Government states that it is in the process of reconstituting and expanding existing tripartite industrial peace councils to ensure genuine and inclusive representation of labour and employers sectors by also including in the Regional Tripartite Industrial Peace Councils representatives of workers from the informal, public, women and migrant sectors.
3. 635. With the issuance of Administrative Order No. 32, series of 2018, on the Regional Tripartite Monitoring Bodies (RTMB) Operational Guidelines, the creation of Tripartite Validating Teams, expected to gather and/or verify information on: (a) union or organization to which the alleged victim is affiliated; (b) victim’s family and/or relatives; (c) company/management involved in the case or complaint; (d) investigative and prosecutorial arms of the government; (e) local government units; and (f) other concerned agencies such as the Supreme Court, Court of Appeals, Department of Justice, National Bureau of Investigation, Philippine National Police (PNP), Commission on Human Rights, Department of the Interior and Local Government, including the Armed Forces of the Philippines (AFP) when needed, has been further institutionalized and strengthened. Security concerns of members were likewise addressed through the provision that the Tripartite Validating Team may request security assistance from the PNP and the AFP if so warranted.
4. 636. In addition, reforms on the Department of Labour and Employment (DOLE) labour standards enforcement framework are also being implemented through the deputization of sectoral representatives to participate in the assessment of establishments’ compliance to labour laws and social legislations. The deputized trade union inspectors who have completed and passed the first three batches of training in Luzon, Mindanao and Visayas have already been issued with a General Authority to Assess. DOLE Department Order No. 183–17 on the “Revised Rules on the Administration and Enforcement of Labor Laws Pursuant To Article 128 of the Labor Code, as Renumbered” has been issued on 18 October 2017.
5. 637. The presence of these structures and reforms especially created to focus on the investigation, monitoring and/or prosecution of crimes involving trade unionists further contributes to the reconstitution and strengthening of these already established mechanisms to ensure that they remain active and responsive to the Government’s thrusts in line with ILO Convention No. 87.
6. 638. As regards the Committee’s requests to keep it informed of the outcome of the renewed review by the Inter-Agency Committee (IAC) of the murders of three trade union leaders, the Government reiterates the difficulties in obtaining sufficient information and evidence from the complainants to justify the allegations, hindering the proper evaluation and classification of cases. As regards specifically the case of Antonio Petalcorin, the Government requests the Committee to reclassify this matter as a case where it requests to be informed of developments given that this matter is under the regular process of criminal prosecution and litigation and all possible actions at the administrative level have been completed.
7. 639. As regards the recommendation for measures to be taken to ensure that crimes of such serious nature are investigated and prosecuted motu proprio, the Government clarifies that this concern is already addressed under the Philippine Revised Rules of Criminal Procedures, which allow for the institution of action by law enforcement authorities and public prosecutors for criminal offences committed against the State, regardless of the presence of a formal complaint by the offended party, for as long as a violation criminal in nature, of law or of right, occurred. Under existing rules, criminal investigation regardless of the gravity of the crime or offence may be pursued motu propio by the law enforcement authorities such as the PNP. If the evidence warrants, a criminal complaint may be filed at the instance of the government through the prosecutor.
8. 640. The Government emphasizes, however, that to have an airtight case that can actually result in conviction of the accused, it is imperative that the complaint be supported by evidence and/or statements from witnesses. To assist in this regard, a Capacity-Building Seminar for Selected National Tripartite Industrial Peace Council-Monitoring Body (NTIPC-MB), RTMB and Commission of Human Rights (CHR) Representatives on Case Build-Up and Documentation was scheduled for March with a view to capacitating members of the national and regional monitoring bodies on the rules of criminal procedure and possible areas for contribution and participation in case-building and monitoring of alleged labour-related human rights abuses.
9. 641. The Administrative Order (AO) 35 Inter-Agency Committee lodged with the Department of Justice, is one of the mechanisms created to implement the Philippine Government’s initiatives towards the improved application of ILO Convention No. 87, particularly on facilitating expeditious investigation, prosecution, and resolution of pending cases concerning alleged harassment and assassination of labour leaders and trade union activists.
10. 642. The IAC is tasked to investigate old and new cases of extrajudicial killings, enforced disappearances, torture and other grave human rights violations, and all cases of killings of labour leaders and labour advocates (and even those mistaken to be so) will benefit from the investigations by the composite investigation teams as well as the supervisory and monitoring processes of the various special oversight teams, and, ultimately, the plenary powers of the high-level IAC itself.
11. 643. Another existing monitoring structure is the National Monitoring Mechanism (NMM) mandated to monitor the nation’s progress on the resolution of human rights violations and/or cases, prioritizing, in the short-term, those of extrajudicial killings, enforced disappearances and torture, including violations of economic, social and cultural rights which are related to and may be causes of the aforementioned cases, with a long-term view of ensuring effective compliance with the international human rights treaties obligations of the Philippine Government.
12. 644. Discussions are ongoing to further strengthen the coordination and clarify the interaction between existing monitoring mechanisms, especially the IAC and the NMM, not only to help expedite the investigation and prosecution of cases but also to explore operational and/or policy recommendations to improve the criminal justice system. Legislative matters, on the other hand, are continuously being deliberated in Congress. As regards the need to reinforce the capacity to collect forensic evidence, the Government indicates that reliance on testimonial evidence remains indispensable in the prosecution of criminal cases, and forensic evidence, aside from the need to further strengthen capacity for it, is merely supplemental in character.
13. 645. As to a more formal avenue of ensuring the protection of witnesses, who actually become potential victims, the Government recalls that a Witness Protection Program (WPP) is established pursuant to Republic Act No. 6981 (The Witness Protection, Security and Benefit Act) under the supervision of the Department of Justice (DOJ). By ensuring protection from reprisals and from economic dislocation, the programme serves as an encouragement for witnesses, or those who have knowledge of the commission of a crime, to testify before a court or quasi-judicial body or before an investigating authority. Moreover, the CHR also adopted its own WPP which seeks to protect the lives of witnesses in human rights violations cases. Under the programme, witnesses are encouraged to testify by offering them protection and assistance – secure housing facility; food, clothing and other necessities for daily sustenance; medical care; education for a child witness; and security escort to and from the place of hearing before any judicial, quasi-judicial or investigating body.
14. 646. The noted decline in cases of trade union rights violations can also be attributed to the continuous efforts (over 70 capacity-building activities from 2010–2017) toward raising awareness and strengthening the capacity of all relevant government institutions, including the social partners, in the promotion and protection of labour rights with technical assistance from the ILO. Numerous stakeholders were oriented and capacitated not only on international labour standards (particularly on freedom of association and collective bargaining), but also on the observance of tripartite-developed instruments governing the engagement of social partners, including the police, military, and key government agencies, during labour disputes.
15. 647. In its communication dated 28 September 2018, the Government indicates that DOLE shall conduct a multisectoral training of trainers on freedom of association and collective bargaining, in cooperation with the ILO and other concerned agencies, in November 2018. This activity is part of the tripartite-formulated national action plan on freedom of association and collective bargaining which seeks to capacitate social partners and stakeholders, who may be tapped as resource persons and advocates of freedom of association and collective bargaining, in delivering lectures and/or learning sessions particularly on existing guidelines governing the engagement of various social partners and stakeholders during labour disputes. Participants to this training shall include representatives from the DOLE, Department of the Interior and Local Government, Department of National Defense, Department of Justice, Commission of Human Rights, Philippine Economic Zone Authority, National Tripartite Industrial Peace Council-Monitoring Body, Regional Tripartite Monitoring Bodies, and the AFP and the PNP. The Government further informs that the AFP and the PNP, through their senior officers in Davao Region have affirmed that the AFP Guidelines had been integrated in their respective education programmes and assured that the guidelines would be strictly followed within their ranks. This commitment was manifested during the Regional Inter-Agency Coordinating and Monitoring Committee (RICMC) meeting on 20 September 2018.
16. 648. Lastly, the Government indicates its concern with the qualifiers “serious and urgent” which in its view should be reconsidered. The Government reiterates that these cases are progressing under regular criminal procedures with the constant efforts of the tripartite partners and that they will continue to monitor and fast-track all cases, in line with upholding the constitutional rights to speedy trial and due process. These extensive efforts are evidenced by all the previous reports and replies by the Government to all requests forwarded by both international and domestic bodies/organizations.

C. The Committee’s conclusions

1. 649. The Committee recalls that the present case concerns allegations of the extrajudicial killings of three trade union leaders and the failure of the Government to adequately investigate these cases and bring the perpetrators to justice, reinforcing the climate of impunity, violence and insecurity with its damaging effect on the exercise of trade union rights.
2. 650. The Committee notes the additional information submitted by the Government concerning legislative and other measures to create an improved climate for freedom of association. In this respect, the Committee recalls that it had previously noted the detailed and intricate framework of monitoring and investigative mechanisms, at both national and regional levels, which continues to actively work on the cases of killings of trade unionists and other violence brought before the ILO supervisory bodies.
3. 651. The Committee welcomes the additional information provided by the Government that it is in the process of reconstituting and expanding existing tripartite industrial peace councils to ensure genuine and inclusive representation of labour and employers sectors by also including in the Regional Tripartite Industrial Peace Councils representatives of workers from the informal, public, women and migrant sectors. Additionally, Administrative Order No. 32, series of 2018, on the Regional Tripartite Monitoring Bodies (RTMB) Operational Guidelines, the creation of Tripartite Validating Teams, expected to gather and/or verify information on: (a) union or organization to which the alleged victim is affiliated; (b) victim’s family and/or relatives; (c) company/management involved in the case or complaint; (d) investigative and prosecutorial arms of the government; (e) local government units; and (f) other concerned agencies such as the Supreme Court, Court of Appeals, Department of Justice, National Bureau of Investigation, Philippine National Police (PNP), Commission on Human Rights, Department of the Interior and Local Government, including the Armed Forces of the Philippines (AFP) when needed, has been further institutionalized and strengthened. Security concerns of members were addressed through the provision that the Tripartite Validating Team may request security assistance from the PNP and the AFP if so warranted. Recalling its previous recommendation concerning the working of the non-judicial monitoring bodies such as the IAC or the RTMBs, the Committee trusts that criteria for admitting cases for consideration do not unduly exclude possible freedom of association cases and ensure full examination even where labour activity or trade union function may be only one of a number of other possible motivations.
4. 652. The Committee further notes the Government’s indication that under existing rules, criminal investigation regardless of the gravity of the crime or offence may be pursued motu propio by the law enforcement authorities such as the PNP. If the evidence warrants, a criminal complaint may be filed at the instance of the government through the prosecutor. As to a more formal avenue of ensuring the protection of witnesses, who actually become potential victims, the Government recalls that a Witness Protection Program (WPP) is established pursuant to Republic Act No. 6981 (The Witness Protection, Security and Benefit Act) under the supervision of the DOJ, whilst the CHR has also adopted its own WPP which seeks to protect the lives of witnesses in human rights violations cases. Finally, the Committee notes with interest the many capacity-building activities referred to by the Government in the promotion and protection of labour rights for all stakeholders, including the police, military and government agencies.
5. 653. As regards the murders of trade unionists Antonio “Dodong” Petalcorin, Emilio Rivera and Kagi Alimudin Lucman under examination in this case, the Committee observes that the Government reiterates that these cases are being handled and investigated through the regular processes of criminal investigation and prosecution. The Committee, while welcoming the extensive tripartite and inter-ministerial efforts to help expedite the investigation and prosecution of cases, stresses the importance which it places on rapidly identifying the perpetrators of violence against trade unionists and bringing them to justice in order to combat impunity and promote a climate free from violence, intimidation and fear in which freedom of association may be fully exercised. Recalling that these murders took place in 2013, the Committee once again expresses its firm expectation that the perpetrators will be brought to trial and convicted without further delay, and requests the Government to keep it informed of the progress made in this regard, including the current status of these cases, and to provide a copy of the relevant judgments as soon as they are handed down.

The Committee’s recommendations

1. 654. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Stressing the importance which it places on rapidly identifying the perpetrators of violence against trade unionists and bringing them to justice in order to combat impunity and promote a climate free from violence, intimidation and fear in which freedom of association may be fully exercised and recalling that the murders of Antonio “Dodong” Petalcorin, Emilio Rivera and Kagi Alimudin Lucman took place in 2013, the Committee once again expresses its firm expectation that the perpetrators will be brought to trial and convicted without further delay, and requests the Government to keep it informed of the progress made in this regard, including the current status of these cases, and to provide a copy of the relevant judgments as soon as they are handed down.
   • (b) The Committee draws the special attention of the Governing Body to the serious and urgent nature of the matters dealt with in this case.