Report in which the committee requests to be kept informed of development - Report No 364, June 2012

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

Allegations: The complainant alleges 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

1. 913. The Committee last examined this case at its March 2011 meeting, when it presented an interim report to the Governing Body [359th Report, paras 1093–1134, approved by the Governing Body at its 310th Session (March 2011)].
2. 914. The Government forwarded additional observations in a communications dated 1 June 2011 and 5 March 2012.
3. 915. 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. 916. At its March 2011 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) Welcoming the measures taken so far by the Government, the Committee requests it to continue keeping it informed of the steps taken and envisaged to ensure a climate of justice and security for trade unionists in the Philippines, and encourages the Government to develop a fully fledged technical cooperation programme in this respect. The Committee expects that the Government will continue to engage with the KMU in dealing with cases involving its members and leaders and requests to be kept informed in this respect.
   • (b) As regards the alleged extrajudicial killings, abductions and enforced disappearances, the Committee:
     • (i) urges the Government to take all necessary measures in order to ensure that the investigation and judicial examination of all acts of extrajudicial killings, attempted murders, abductions and enforced disappearances advance successfully and without delay. It asks the Government to indicate without delay the progress made in this regard and provide any relevant court judgments;
     • (ii) with respect to the Hacienda Luisita incident, recalling 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, urges the Government to provide specific information without further delay as to the institution of judicial proceedings for this incident which dates back to 2004; and
     • (iii) requests the Government to inform it of the progress made in the adoption of the Bill concerning enforced disappearances.
   • (c) As to the issue of lengthy procedures, the Committee:
     • (i) requests the Government to take the necessary measures to ensure the expeditious conclusion of proceedings in allegations of labour-related violence;
     • (ii) requests the Government to supply information on the working of the 99 regional trial courts designated by the Supreme Court, including on the length of procedures in practice, and to provide detailed information on the steps taken to create a special team of competent and well trained prosecutors; and
     • (iii) asks to be kept informed on any further developments regarding the adoption and implementation of the “Omnibus Rules” being elaborated by the CHR.
   • (d) The Committee requests the Government to provide information on the implementation of Acts Nos 9851 and 9745.
   • (e) With regard to the alleged harassment and intimidation of trade union leaders and members affiliated to the KMU, the Committee urges the Government to respond to the allegation submitted by the UFE–DFA–KMU without delay and to keep it informed on the outcome of the discussion of the allegations of harassment and intimidation of trade union leaders and members affiliated to the KMU by the TIPC Monitoring Body or of any other measures taken to facilitate the settlement of labour disputes and to indicate the progress made in ensuring the full and swift investigation of the alleged acts of harassment and intimidation.
   • (f) With regard to the militarization of workplaces, the Committee:
     • (i) urges the Government to communicate its observations on the outstanding allegations;
     • (ii) requests the Government to keep it informed of the follow-through given to implementing the Guidelines for the conduct of the PNP, private security guards and company guard forces during strikes, lockouts and labour disputes, and of any progress made in updating them; and
     • (iii) further expects that the Government will take the necessary accompanying measures, including the issuance of appropriate high level instructions, to bring to an end prolonged military presence inside workplaces, to ensure that any emergency measures aimed at national security do not prevent 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 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.
   • (g) With regard to the cases of arrest and detention, the Committee requests the Government:
     • (i) to communicate its observations in respect of the outstanding allegations of illegal arrest and detention;
     • (ii) to submit further and precise information in relation to these arrests and the legal or judicial proceedings upon which they are based;
     • (iii) to take all necessary measures so as to ensure that the investigation and judicial examination of all cases of alleged illegal arrests and detentions 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;
     • (iv) to communicate the texts of any judgments handed down in the above cases, together with the grounds adduced therefore; and
     • (v) as regards the prolonged detention of 20 workers from Karnation Industries, 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, the Committee urges the Government to ensure that any of the workers that are still imprisoned are immediately released and to take the necessary measures to ensure that all remaining charges are dropped.
   • (h) The Committee draws the special attention of the Governing Body to this case because of the extreme seriousness and urgency of the matters dealt with therein.

B. The Government’s reply

1. 917. In a communication dated 1 June 2011, the Government provides information in relation to the steps taken to follow up on the recommendations of the 2009 High-level Mission, which also touch upon the issues in this case. The Government generally reiterates the measures taken to strengthen the operational capacity of the Philippines National Police (PNP) and Armed Forces of the Philippines (AFP) so as to foster an enabling environment for the enjoyment of constitutionally guaranteed civil liberties and trade union rights.
2. 918. In particular, the Government indicates that the revised Joint Department of Labor and Employment (DOLE)–PNP–Philippine Economic Zone Authority (PEZA) Guidelines on the conduct of PNP personnel, economic zone police and security guards, company security guards and similar personnel during labour disputes have been issued on 23 May 2011. In its communication dated 5 March 2012, it further states that a DOLE–Labor Sector–PNP Summit on the Protection and Promotion of Workers’ Rights was held on 6 December 2011, and that the DOLE, labour groups and the PNP signed a Manifesto of Commitment as one of the outputs of the four area-wide orientation seminars on the Joint DOLE–PNP–PEZA Guidelines for the Regional Coordinating Council (RCC) and Regional Tripartite Industrial Peace Council (RTIPC) members. The activity, which was jointly conducted by the DOLE, PNP and PEZA, sought to foster a common understanding of the Guidelines and to ensure close coordination in resolving labour disputes. A DOLE Internal Operational Guidelines outlining the “Do’s and Don’ts” in the implementation of the Guidelines was issued for the purpose. Also, in order to strengthen command responsibility, the PNP has issued its Guidelines on the accountability of the immediate officer for the involvement of his subordinates in criminal offences. Thousands of human rights information and advocacy materials were also distributed to police personnel to enhance their practical knowledge about human rights.
3. 919. The Government further highlights the commitment of the new AFP Chief to continue the roadmap provided by his predecessor, that is, the Internal Peace and Security Plan (IPSP) Bayanihan, under which troops will be shifted from combat operations to civilian–military operations such as building roads and schools in conflict areas. The implementation of the IPSP Bayanihan will be monitored by civil society-led oversight initiative or the Bantay Bayanihan.
4. 920. Moreover, the Government enumerates the following capacity-building activities conducted in 2011: (i) PNP Human Rights Officers Seminar (18–20 January 2011), which sought to raise human rights awareness of the PNP and orient on the tasks required for human rights desks; (ii) Forum on Human Rights and Criminal Proceedings (14 February 2011); (iii) Seminar on EU–Philippines Justice Support Program (EPJUST) and the Human Rights Situation (extrajudicial killings, enforced disappearances. etc.) in the Philippines (15 February 2011); and (iv) Seminar on the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law for AFP and PNP Personnel (25 and 27 October 2011). The Government further indicates that the Department of Justice (DOJ), through Department Order No. 848 of 10 December 2010, formed a Special Task Force (STF) to address extrajudicial killings and enforced disappearances tasked among others to review all reported and unresolved cases. The STF complements Task Force 211.
5. 921. Also, the Government reiterates the information concerning activities conducted under the EPJUST aimed at enhancing the capacity and effectiveness of the Philippine justice system and of the Commission of Human Rights (CHR). Moreover, the Government states that the Presidential Human Rights Committee will establish by the second to third quarter of 2012 the National Monitoring Mechanism (NMM) for extrajudicial killings, enforced disappearances and torture cases as a component of the EPJUST programme to bring together state agencies and civil society organizations in a credible and inclusive forum for monitoring the nation’s progress in resolving extrajudicial killings and enforced disappearances. The NMM, which will be led by the CHR, will include the PNP, the AFP, the DOJ (especially the STF), the DOLE and other government agencies. It shall have the following functions: (i) to gather, receive and record cases or report of incidents; (ii) to collate, record and review cases or report of incidents in the past to determine the respective status or take appropriate measures; (iii) to share and pool information (except classified) regarding cases, researches, studies and best practices; (iv) to propose policies for prevention and resolution of extrajudicial killings, enforced disappearances and torture cases; (v) to come up with common case records, common reports and common nomenclature; and (vi) to monitor and ensure the appropriate interlinking and fulfilment of institutional mandates.
6. 922. In its most recent communication, the Government adds that the Executive Order establishing the Presidential Committee for the Prevention and Investigation of Extrajudicial Killings, Harassments, Intimidation, Torture and Enforced Disappearances is still undergoing consultations for refinement. This “super body” is intended to replace Task Force 211, serve as the lead executive body that will address cases involving violations of civil and political rights and form a major government component in the NMM. The mandate of the Presidential Committee is: (i) to receive formal and anonymous complaints from all sectors, conduct an inspection of facilities (especially military, police and other law enforcement agencies), inquire into involvement of State agents or order an explanation from the most senior officer; (ii) to conduct formal hearings and investigations to validate cases; (iii) to monitor and oversee the conduct of investigations and prosecutions of cases already filed; and (iv) to recommend court martial or administrative investigation against the immediate superior of state agents.
7. 923. In addition, the Government reports on reforms endorsed by the National Tripartite Industrial Peace Council (TIPC) seeking to ensure the de-judicialization of the labour dispute settlement system through: (i) a 30-day mandatory conciliation–mediation of all labour cases with settlement services that are speedy, impartial, inexpensive and accessible (DOLE Department Order No. 107-10 of 7 October 2010 and Rules of Procedure of the Single Entry Approach issued on 25 February 2011); and (ii) NLRC reforms, grievance settlement and voluntary arbitration.
8. 924. Pursuant to the identified follow-through activities in the Indicative Action Plan from a series of workshops conducted with the ILO, the Government states that the TIPC recognized the need to create a structure for the National TIPC Monitoring Body in RTIPCs. According to TIPC Resolution No. 3, Series of 2011, Administrative Order No. 263, Series of 2011, of 6 July 2011 directed all DOLE regional directors to create a regional tripartite monitoring body in their respective RTIPCs, which shall operate in accordance with the Operational Guidelines of the National TIPC Monitoring Body, in order to ensure observance of international labour standards in the regions, to verify or document allegations of possible trade union rights violations, to monitor or evaluate complaints involving allegation of violation of ILO Conventions Nos 87 and 98, to gather relevant information from regional authorities or courts, including comments from the social partners, and prepare case/complaint profiles to be submitted to the National TIPC Monitoring Body.
9. 925. With particular regard to the allegations, the Government indicates that, while the complainant Kilusang Mayo Uno (KMU) has conveyed interest in participating in the TIPC and the National TIPC Monitoring Body and is to be appointed by the DOLE Secretary to the Technical Executive Committee (TEC) of the TIPC, recent developments appear to have made resurface the previous position of the KMU, and resulted in a request of the removal of its name from the inclusive social dialogue conducted by the DOLE on the basis that it had purportedly never been consulted on the Government’s labour policy framework. In its communication dated 5 March 2012, the Government reports that the National TIPC has been formally reconstituted on 11 July 2011 with 20 workers’ and 20 employers’ representatives, and that the KMU has declined to participate in it, including at the TEC level, but that the invitation stands. The Government states that the TIPC Monitoring Body has already undertaken a comprehensive inventory of cases pending before the ILO supervisory body, the approach being to consolidate the cases which have been raised several times in the case number where it was first raised if it was not a different or separate incident. The KMU has been provided with a compilation of the cases and requested to provide additional information to facilitate the investigation, prosecution and resolution of the cases mentioned in the complaint. The Government also informs that, for 2011, the TIPC and the National TIPC Monitoring Body have been allocated a budget of 5.1 million Philippine pesos (PHP) and, for 2012, a budget of PHP7.33 million.
10. 926. The Government reports that the consolidation brought the number of cases/incidents cited in Case No. 2528 to a total of 62, or four cases less from the previous total of (66 affecting KMU leaders and/or members. The consolidated results showed allegations of 39 cases of killings (47 victims killed, 3 wounded) and 11 cases of abductions (30 victims). The previously 16 cases of harassment have been consolidated to 12 with 105 victims: the cases of Vicente Barrios et al., Zinafro Salomag et al. and Joel N. Cuyos et al. were consolidated as incidents of harassment at Fresh Banana Agricultural Corporation, Suyapa Farms, Compostela Valley; and the cases of Aldrene M. Tambalo, Roque O. Roncales and Nestor Legaspi were consolidated as incidents of harassment at Fresh Banana Agricultural Corporation, Barangay Osmiguel, Compostela Valley.
11. 927. The Government again indicates that the National TIPC Monitoring Body uses the ILO criteria of admissibility of cases/complaints and classified cases with allegations of extrajudicial killings, harassments and abductions into possibly labour-related, under Convention No. 87, if the circumstances of the case would constitute infringement of trade union rights, or possibly not labour-related, under Convention No. 87, if the circumstances of the case would not constitute infringement of trade union rights. The classification was designed to rationalize and prioritize the cases for investigation, prosecution and resolution, and not to exclude specific cases raised in the complaints.

Extrajudicial killings

1. 928. The Government reiterates that the TIPC Monitoring Body through Resolution No. 2, Series of 2010, adopted on 25 June 2010, recommended the following actions for the 39 cases of extrajudicial killings: (a) eight cases for closure; (b) six on-trial cases were requested to be prioritized by the courts and the DOJ for prosecution and resolution; (c) 11 cases for expeditious investigation by the DOJ; and (d) 14 cases for the CHR to conduct an in-depth investigation on the circumstances, or issue a “final pass” on those that had already been investigated by either the CHR, the PNP Task Force, or DOJ Task Force 211, with a view to accord justice to the victims and their families at the soonest possible time. The Government again states that the above resolution on the 39 cases of extrajudicial killings has already been forwarded to the concerned agencies for their appropriate action, and the DOLE Secretary has sought audience with heads of agencies for their commitment to expedite the investigation, prosecution and resolution of the cases.
2. 929. The Government indicates in particular that:
   • (a) Resolution No. 1, Series of 2011, adopted by the National TIPC Monitoring Body on 24 May 2011, reaffirms the closure of eight cases in Resolution No. 2, Series of 2010, due to desistance, refusal to file a case or death of the suspect(s);
   • (b) as to the six cases which are on trial, two cases (Samuel Bandilla and John Jun David et al.) are forwarded to the DOJ and four were endorsed to the Supreme Court. The Supreme Court reported that the four cases of killings (Teotimo Dante; Ricardo Ramos; Antonio Pantonial and Fr William Tadena) pending before the different regular courts are now covered with specific instruction dated 20 January 2012 from the Supreme Court to the judges handling the cases, to expedite the hearing and decide the same within 120 days; the Office of the Court Administrator monitoring observance of this instruction provided the following updates:
     • (i) Teotimo Dante: The presentation of the prosecution’s last witness was originally set on 26 March 2012, but in view of the Supreme Court’s instruction, the judge issued an order rescheduling the presentation to 13 February 2012 (postponed on motion of the Prosecutor); a subpoena was issued for the witness to appear and render testimony; warning was also issued that should the prosecution fail once more to adduce evidence against the accused, the court will be constrained to consider it as having terminated presentation of evidence;
     • (ii) Ricardo Ramos: An order dated 7 February 2012 was issued by the Regional Trial Court Branch 65 granting the Demurrer to Evidence which was filed by the accused on 2 November 2011; the accused was acquitted of the crime of murder for failure of the prosecution to prove his guilt beyond reasonable doubt and was released from jail;
     • (iii) Antonio Pantonial: The case was last heard on 8 February 2012, and the prosecution was given final opportunity to present its last witness on 14 March 2012 as said witness who, according to the private complainant was duly informed and was ready to testify, cannot appear in court due to the rising waters of the river in their place; and
     • (iv) Fr William Tadena: The accused is detained in Muntinlupa City Jail by reason of another case; no prosecution witness is appearing;
   • (c) as regards the 13 cases for expeditious investigation by the DOJ (initially 11 cases plus two cases forwarded by the Supreme Court), the newly created STF has already started looking into the cases which were previously endorsed to DOJ TF211 and reported that two cases (Ronald Andrada and Angelito and Abit Mabansag), having been provisionally dismissed more than two years ago, were now considered permanently dismissed under Rule 118 of the Rules of the Court; four cases filed before the Prosecutor’s Office (Paquito Diaz, Victoria and Pajo Samonte, Abelardo and Rosal Ladera and Rolando and Talla Mariano) were dismissed due to lack of probable cause or insufficient evidence but leads were being sought by the DOJ as these cases could be reinvestigated; three cases (Leodegario and Mawal Punzal, Samuel and Berdaje Dote and Tirso and Masiglat Cruz) were under investigation; three cases (Noel Garay and De Guzman, Ramon Namuro and John Jun David et al.) had been archived, the latter reportedly because the accused are at large and the DOJ tapped its investigation agencies to reopen the investigation with a view to identifying the perpetrators and apprehending them; and in one case (Samuel Bandilla), which had been dismissed by the Prosecutor’s Office, the dismissal was appealed to the DOJ under the previous administration of the agency, the case folder went missing due to improper turnover of files, the DOJ is exerting efforts to get a copy of the Petition for Review (the lawyer of the complainant was killed shortly after filing the petition and the complainant does not have a copy) and the STF is exploring, given the peculiar circumstances of this case, the exercise by the Secretary of Justice of her extraordinary powers under section 4 of Republic Act 10071, which grants the authority to act directly on any matter involving national security or a probable miscarriage of justice within the jurisdiction of the prosecution staff, and to review, reverse, revise, modify or affirm on appeal or petition for review final judgments and orders of the Prosecutor General and other prosecutors or to reopen cases dismissed by the prosecutors if and when warranted by the facts; and
   • (d) with respect to the 14 cases endorsed to the CHR, ten were recommended for closure and/or archiving due to desistance, disinterest to pursue the case or lack of witnesses; of the ten, five (Diosdado Fortuna; Antonio Mercado Panaligan; Crisanto Teodoro; Florante Collantes and Bailon; and Francis Noel Desacola) are with clear findings of human rights violation and the recommendation for closure and/or archiving are with notation that it is closed or archived without prejudice to its reopening should new leads or evidences be available; Resolution No. 1, Series of 2011, adopted by the TIPC Monitoring Body on 24 May 2011 endorsed the CHR recommendation with a note that it will not foreclose further prosecution should witnesses or evidences be available and recommended provision of livelihood assistance to the immediate dependants of victims of extrajudicial killings recommended for closure; the Government indicates that, should there be new leads or developments or a case be reopened, such information will be monitored and reported to the ILO, and that the DOLE has already issued Administrative Order No. 185 on 20 May 2011, directing the concerned regional directors to extend livelihood grants/assistance to the immediate dependants of the victims in the cases recommended for closure or archiving; on 6 May 2011, the CHR officially recommended the closure of the remaining four cases (Jesus Butch Servida, Gerson Lastimoso, Gerardo Cristobal, and Armando Leabres Pallarca) due to reasons ranging from desistance or disinterest to lack of evidence and witnesses who can identify the perpetrators; the National TIPC Monitoring Body, taking into account the information gathered and reported by the PNP, referred through Resolution No. 1, Series of 2012, the cases back to the CHR and PNP Task Force Usig for further investigation and validation of facts considering the incomplete or conflicting sets of information.
3. 930. In this context, the Government explains that desistance, disinterest to pursue the case, lack of witnesses or refusal to file a case trigger closure or archiving of a case because the existing Philippine criminal justice system relies heavily on testimonial evidence, rather than forensic evidence. Thus, although killing or murder is a crime against public order and should be pursued by the State, witnesses’ retraction, and/or waiver or desistance by the victim’s relative to prosecute the case will result in its dismissal unless there are other witnesses or the evidence is strong to convict the suspect beyond reasonable doubt. The criminal justice system has five pillars: community, investigation, prosecution, judiciary, and correction. The PNP and the National Bureau for Investigations (NBI) handle investigations, not the prosecution authorities (the DOJ). Prosecution evaluates investigation findings or complaints, and files the corresponding information.
4. 931. As regards the new allegations of murder and attempted murder brought forward by the KMU in its communications dated 30 September and 10 December 2009, as well as 2 June 2010 (Sabina Ariola, Gil Gojol, Carlito Dacudao, Joel Ascutia, Arnold Cerdo, Armando Dolorosa, Maximo Barranda, Liza Alo, Vicente Barrios and Edward Panganiban), the Government indicates that the National TIPC Monitoring Body, through Resolution No. 7, Series of 2012, classified one case of extrajudicial killing (Maximo Barranda) as possibly not labour related considering that the alleged facts would not constitute an infringement of the exercise of freedom of association and the right to organize under Convention No. 87. The case of Edward Panganiban is already included in the list of new cases, which is in the present case calendar of the National TIPC Monitoring Body and is covered under another resolution. The remaining cases were referred to the concerned agencies (CHR, PNP Task Force Usig, DOLE, Supreme Court and the AFP) for prompt action and speedy disposition.
5. 932. As regards the efforts to combat impunity more generally, the Government also refers to the indictment on 15 December 2011 of retired Major General Jovito Palparan, notoriously known as the “Butcher”, for two counts of kidnapping and serious illegal detention in connection with the abduction of still missing UP student activists in 2006. A warrant of arrest was issued on 20 December 2011. Since then, Palparan went into hiding and a manhunt for him is now on. Also recommended for indictment with Palparan are Lieutenant Colonel Felipe Anotado Jr, Master Sergeant Rizal Hilario and Staff Sergeant Edgardo Osorio. The indictment against General Palparan underscores the commitment of the Government to prosecute state actors implicated in extrajudicial killings and enforced disappearances. Although direct evidence is yet to be established that General Palparan ordered the extrajudicial killings and enforced disappearances, the indictment seeks to hold him liable under the principle of command responsibility, for failing to prevent, punish or condemn the killings. There are allegations that General Palparan had knowledge or, had reason to know of, or should have known about the criminal acts of his subordinates. He has been widely believed to be accountable for those acts because at certain period, where he had been the Commanding General or Brigade Commander of the 7th Infantry Division, Central Luzon, 8th Infantry Division, Eastern Visayas, and 2nd Infantry Division, Mindoro, the number of extrajudicial killings and enforced disappearances involving trade unionists, member of progressive groups, human rights advocates and media personalities rose in those areas. He has been tagged to have the biggest contribution to the alleged culture of impunity pervading the country in an effort to achieve the Macapagal-Arroyo Administration’s bold objective to defeat the communists in two years time. From September 2005 until his retirement in September 2006, General Palparan was the Commanding General or Brigade Commander of the 7th Infantry (Kaugnay) Division in Central Luzon. The regional breakdown of the 39 cases of extrajudicial killings and 11 cases of abduction reported in the complaint showed that the same increased or proliferated considerably during General Palparan’s tour of duty in the area.

Abductions and enforced disappearances

1. 933. The Government further indicates that, on the 11 cases of abduction, the National TIPC Monitoring Body has issued Resolution No. 2-A, Series of 2011, on 24 May 2011 recommending the following actions: (i) one case (Normelita Galon et al.) to be referred to the PEZA to conduct a thorough investigation on the claimed abduction as well as the direct assault cases filed by the PEZA police against Galon et al.; and (ii) 11 cases (including the case of Galon et al.) referred to the CHR for in-depth investigation or “final pass”.
2. 934. On 5 January 2012, the CHR recommended the closure of the eleven cases of alleged abduction for lack of interest of the parties to pursue the case, or lack of material evidence to establish that human or labour rights violations have been committed. Taking into account the CHR recommendation and the information gathered from other competent agencies, the National TIPC Monitoring Body adopted Resolution No. 2, Series of 2012, on the closure of two abduction cases (Robin Solano et al. and Ronald Intal) without prejudice to their reopening should new leads or evidence be available. The remaining nine cases (Jaime Rosios; Melvin Yares; Normelita Galon et al.; Perseus Geagoni; Virgilio Calilap et al.; Lourdes Rubrico; Rogelio Concepción; Leopoldo Ancheta; and Rafael Tarroza) were referred for further investigation and information to the PNP Task Force Usig, DOJ and Office of the Ombudsman, some with request for clarification with the CHR. The RTIPC monitoring bodies were also requested to conduct further investigation, validation of evidence and/or reconciliation of reports. The DOLE is tasked to ensure and periodically report to the National TIPC Monitoring Body on the progress of investigation or prosecution.
3. 935. As regards the new allegations of abduction brought forward by the KMU in its communications dated 30 September and 10 December 2009, as well as 2 June 2010 (Roy Velez), the Government indicates that the case was referred to the agencies concerned for prompt action and speedy disposition.

Harassment and intimidation

1. 936. According to the Government, on the 12 cases of harassment (previously, 16 cases), the National TIPC Monitoring Body had issued Resolution No. 2-B, Series of 2011, on 24 May 2011, recommending the following actions: (i) five cases for closure but with request for “final pass” by the CHR (Rene Acinue Manalo; Ricardo Bellamia; Angelita Ladera; Mercy Santomin; and Vincent Borja); (ii) seven cases to be referred to the CHR for in-depth investigation or “final pass” (members of Sulpicio Lines Workers’ Union; Ariel Geres Legaspi; Edison Alpiedan et al; Noel Tenorio Sanches; 52 workers of Chiyoda Integre Phils.; Aldrene Tambalo, Roque Roncales and Nestor Legaspi at Fresh Banana Agricultural Corporation – Osmiguel; and Vincent Barrios et al., Packing Plant 92 Workers’ Union and Joel Cuyos et al. at Fresh Banana Agricultural Corporation – Suyapa); and (iii) DOLE to conduct follow-up action/validation and submit a final report on whether the labour issues related to the harassment cases have already been resolved with finality. The CHR recommended on 5 January 2012: (i) closure of the three cases of harassment for lack of interest of the parties to pursue the case, and/or no material evidence to establish that human or labour rights violations have been committed (Angelita Ladera; Mercy Santomin and Vincent Borja, who was arrested by virtue of a warrant of arrest but was released on 13 October 2010 after the only witness failed to identify him in open court); and (ii) further investigation on the other nine harassment cases (Rene Acinue Manalo; Ricardo Bellamia; members of Sulpicio Lines Workers’ Union; Ariel Geres Legaspi; Edison Alpiedan et al; Noel Tenorio Sanches; 52 workers of Chiyoda Integre Phils.; Aldrene Tambalo, Roque Roncales and Nestor Legaspi at Fresh Banana Agricultural Corporation – Osmiguel; and Vincent Barrios et al., Packing Plant 92 Workers’ Union and Joel Cuyos et al. at Fresh Banana Agricultural Corporation – Suyapa) to obtain evidence and determine the real motives for the crime and the identities of the person(s) responsible. The closure and archiving of the cases is without prejudice to their reopening if witnesses surface and material evidence are available. The verification of the harassment cases by DOLE yielded that six were connected to the labour strike at Nestlé, Footjoy, Chiyoda and Hanjin Garments but that documentation is only available on three strike incidents (Nestlé Phils., Chiyoda Integre Phils., Inc., and Hanjin Garments, Inc.) because Footjoy documentation is on the case of Merci Santomin, which has been closed by the CHR; the Chiyoda strike was settled on 10 September 2009; the Nestlé strike arising from a collective bargaining agreement deadlock with respect to the union position to make the unilateral retirement grant be made part of the negotiation was resolved by the DOLE in 2002 and finally decided by the Supreme Court on 3 March 2008 but the issue persisted despite the DOLE ruling on 28 November 2008 that the existing retirement plan in the parties collective bargaining agreement be maintained in its present form and directed Nestlé to establish a contributory retirement plan; and the Hanjin Garments strike was settled on 10 February 2008, but on 11 February 2009, the union leaders reported violation or non-reinstatement by the management of the illegally dismissed workers, which is now subject of a separate case before the National Labor Relations Commission (NLRC). Consequently, through Resolution No. 3, Series of 2012, the National TIPC Monitoring Body requested the CHR to expedite the resolution of four cases (Fresh Banana Agricultural Corporation – Osmiguel; Fresh Banana Agricultural Corporation – Suyapa; Members of Sulpicio Lines Workers’ Union; and Edison Alpiedan et al.) by taking into account the information that has been gathered and reported by other competent agencies such as the PNP. The DOLE and the NLRC were requested to exert efforts to resolve expeditiously the remaining issues in the labour disputes in Nestlé and Hanjin, and the RTIPC monitoring bodies to continuously gather information and monitor the cases.
2. 937. As regards the allegations of harassments, intimidation, discrimination on union members and union busting at Dole Philippines, the Government reports that, as an offshoot of an ILO–DOLE workshop on freedom of association in December 2010, Administrative Order No. 08, directing the DOLE Regional Office No. XII and the National Conciliation and Mediation Board in regions XI and XII to constitute an independent tripartite committee at Dole Philippines, was issued on 10 January 2011, to ensure the integrity of the forthcoming certification election. On 31 January 2011, during the committee’s third meeting, all the members present signed an accord entitled “Social Partnership Accord on the Conduct and Related Activities Before, During and After Certification Election at Dole Philippines, Inc., Cannery Site, Polomolok, South Cotabato”. The contending unions agreed to a consent election. Thus, the results of the 22 February 2011 certification election, with 3,776 votes cast from a total of 3,876 registered voters (97.42 per cent turnout), are as follows: LEAD PH with 2,814 votes, AMADO–KADENA–NAFLU–KMU with 922 votes and “No Union” with 15 votes. LEAD PH was certified on 28 February 2011, after a manifestation by AK–NAFLU–KMU during the tripartite committee meeting that they are not going to formalize the protest, and after the expiration of the five-day period to formalize the protest. Based on the report of the election officers, as compared to previous certification elections held at the Dole Philippines, Inc., the recently held election is the most orderly and they attributed this to the tripartite committee. The Government also indicates that the mobilization of a tripartite monitoring team was duplicated in DOLE national capital region for the conduct of the certification election at Bleustar/Advan Shoes on 18 February 2011. With the creation of a tripartite monitoring team the election was successful and peaceful. Bluestar Workers’ Labor Union (BWLU) with 106 votes of the 206 total votes cast was certified as the sole and exclusive bargaining agent on 4 March 2011.
3. 938. With respect to the new allegations of harassment and intimidation brought forward by the KMU in its communications dated 30 September and 10 December 2009, as well as 2 June 2010 (Rene Galang, Gaudencio Garcia, Luz Fortuna, Jason Hega, et al., Belen Navarro Rodriguez, Leo Caballero, Romualdo Basilio et al., Arman Blasé, Remigio Saladero, workers of Tritran Union, Universal Robina Corporation Employees’ Union, worker communities near Pacific Cordage Corporation, Maragusan United Workers’ Union et al., Romeo Legaspi, Union of Filipro Employees, Farm workers in the Cagayan Valley, Bukidnon and Davao del Sur; ULWU leaders, workers of Sumitomo Fruits Corporation, and union in Suyapa Farm, 20 workers of Karnation Industries), the Government indicates that the National TIPC Monitoring Body, through Resolution No. 7, Series of 2012, classified one case of harassment and intimidation (farm workers in the Cagayan Valley, Bukidnon and Davao del Sur) as possibly not labour related considering that the alleged facts would not constitute an infringement of the exercise of freedom of association and the right to organize under Convention No. 87. The case involving Remigio Saladero was recommended for closure considering that the criminal charges against him were already dismissed. The remaining cases were referred to the concerned agencies (CHR, PNP Task Force Usig, DOLE, Supreme Court and the AFP) for prompt action and speedy disposition.

Other allegations

1. 939. With regard to Karnation Industries, according to the Government, letters of intervention were sent urging for the early resolution of the cases against the 19 workers of Karnation Industries and Export Incorporated and Felicidad Caparal, which was raised in the unnumbered cases. The 19 workers of Karnation Industries were out on bail.
2. 940. Concerning the allegations of militarization or military harassments, the Government states that DOLE and AFP have already agreed in principle on the following items which are part of the Indicative Action Plan arising from the ILO series of seminars on freedom of association and collective bargaining: (a) participation in the RTIPC for better appreciation of social dialogue, freedom of association and civil liberties; (b) conduct of capacity building seminars on freedom of association as it relates to civil liberties and human rights; and (c) crafting of a Memorandum of Agreement or Social Accord with the DOLE, labour groups and employers that would clarify their engagement in the community and set the parameters on non-engagement in unions and workplaces. In its communication dated 5 March 2012, the Government refers to the signing of the Manifesto of Commitment between DOLE, the labour sector and the AFP on 21 July 2011, in which the signatories committed themselves, inter alia: to promote and protect human rights and workers’ rights; to engage in social dialogue, to immediately craft guidelines on the conduct of the AFP relative to the exercise of trade union rights, and to establish a mechanism to allow joint implementation and monitoring of the said guidelines; and to conduct other joint activities to further achieve the goals of the Manifesto. The Government further indicates that several tripartite meetings with the AFP, PNP and PEZA have been held by the TEC of the TIPC as the drafting committee of the DOLE–DILG–PNP–DND–AFP Joint Guidelines on the conduct of the AFP/PNP relative to the exercise of workers’ rights to freedom of association, collective bargaining, concerted actions and other trade union activities. The Government also indicates that the draft Guidelines to be adopted on 8 May 2012 are currently undergoing regional consultation and are expected to, inter alia, prohibit the deployment of military personnel in any labour-related mass actions and disputes or the intervention of local chief executives in labour disputes except written request from DOLE due to the security situation.

Other issues

1. 941. Furthermore, the Government reports on the strategic action taken by the Supreme Court to expedite the resolution of cases involving extrajudicial killings. The Chief Justice Committee to address case congestions and delays in the lower courts was created to provide rationale and policy guidance and to oversee the Supreme Court’s case decongestion efforts. This “high-level” committee, which is composed of associate justices and other officials of the Supreme Court and agencies in the justice system, will establish an inventory and profiles of case congestions and delays in the lower court and their causes. The Government recalls that, as early as 1 March 2007, the Supreme Court had issued Administrative Order No. 25-2007 (AO 25/2007) providing that cases involving violations of the Anti-Torture Law shall undergo mandatory continuous trial and be terminated within 60 days and judgment thereon shall be rendered within 30 days from submission for decision; Circular No. 103-2007 was issued by the Office of the Court Administrator directing all concerned regional trial courts to strictly observe AO 25/2007 and to submit a monthly report on the status of cases concerning extrajudicial killings of political ideologists and members of the media including reasons why AO 25/2007 could not be strictly followed. For failure of some regional trial courts to comply, Circular No. 46-2009 was issued reiterating the directives set forth in AO 25/2007. The Supreme Court is thus optimistic that cases involving extrajudicial killings would be resolved with immediate dispatch. Also, in 2008 the Supreme Court conducted a multi-sectoral and skills-building seminar workshop on extrajudicial killings and enforced disappearances for the 3rd Judicial Region. The Supreme Court later brought the seminar workshop to all the 12 judicial regions. Regional trial court judges, prosecutors, public attorneys and representatives from the PNP, AFP and Integrated Bar of the Philippines participated in the seminar–workshops. Moreover, the Enhanced Justice on Wheels (EJOW) programme, which was developed for jail and court docket decongestion was enhanced to include mobile court annexed mediation proceedings. It also provided the following services: free legal, medical and dental aid; venue for dialogue with judges and other members of the justice sector; and information dissemination drives on the justice system and pertinent laws for community-based leaders and individuals. In 2010, the EJOW was assigned sufficient staff to simultaneously operate in several areas.
2. 942. Finally, the Government indicates that the National TIPC Monitoring Body issued Resolution No. 4, Series of 2012, recommending provision of assistance, in accordance with the DOLE current programmes, policies and guidelines, to the qualified dependants of the alleged victims of labour-related killings, or to the purported victims of abduction and harassment cases and/or their qualified dependants as cited in Case No. 2528.

C. The Committee’s conclusions

1. 943. 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. 944. The Committee notes that the Government indicates the measures taken to strengthen the operational capacity of the PNP and AFP and on the activities conducted under the EPJUST.
3. 945. The Committee notes the information provided by the Government concerning: (i) the forthcoming establishment of the NMM to bring together relevant state agencies and civil society organizations in a credible and inclusive forum for monitoring the nation’s progress in resolving extrajudicial killings and enforced disappearances; (ii) the forthcoming establishment of the Presidential Committee for the Prevention and Investigation of Extralegal Killings, Harassments, Intimidation, Torture and Enforced Disappearances, a “super body” intended to replace Task Force 211 and serve as the major government component in the CHR-led NMM; (iii) the creation of the STF of the DOJ, which has already started its work, with the mandate to complement Task Force 211 and review all reported and unresolved cases of extrajudicial killings and enforced disappearances; and (iv) the issuance of TIPC Resolution No. 3, Series of 2011, recognizing the need to create for the National TIPC Monitoring Body a corresponding structure in the RTIPCs and providing that the RTIPCs shall create regional monitoring bodies which shall operate in accordance with the Operational Guidelines of the National TIPC Monitoring Body and ensure observance of international labour standards in the regions, monitor and evaluate complaints and prepare case profiles.
4. 946. The Committee notes, in particular, the Government’s indication that the KMU had conveyed interest in participating in the TIPC and the National TIPC Monitoring Body and was to be appointed to the TEC, however, recent developments appear to have brought about a change in its position in so far that the KMU has declined to participate in the formally reconstituted National TIPC including at the TEC level; but the invitation stands. The Committee notes that the Government further states that the KMU was provided with the recently undertaken comprehensive inventory of the cases mentioned in the complaint and requested to provide additional information. Noting the efforts made by the Government to involve the KMU, the Committee expects that the Government will continue to engage with the KMU in dealing with cases involving its members and leaders 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.
5. 947. The Committee welcomes the measures taken by the Government 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.

Extrajudicial killings

1. 948. The Committee notes that the Government reiterates previously submitted information on the status of the 39 cases of alleged killings. In addition, the Committee notes the Government’s indication that: (a) Resolution No. 1, Series of 2011, adopted by the National TIPC Monitoring Body on 24 May 2011, reiterates the closure of eight cases in Resolution No. 2, Series of 2010, due to desistance, refusal to file a case or death of the suspect(s); (b) as to the six cases which are on trial, two cases (Samuel Bandilla and John Jun David et al.) were forwarded to the DOJ and four were endorsed to the Supreme Court (Teotimo Dante; Ricardo Ramos; Antonio Pantonial and Fr William Tadena), which issued a specific instruction dated 20 January 2012 to the judges handling the cases, to expedite the hearing and decide the same within 120 days; in the case of Ricardo Ramos, the accused was acquitted of the crime of murder for failure of the prosecution to prove his guilt beyond reasonable doubt and was released from jail; (c) as regards the 13 cases for expeditious investigation by the DOJ (initially 11 cases plus two cases forwarded by the Supreme Court), the STF has reported that two cases (Ronald Andrada and Angelito and Abit Mabansag), having been provisionally dismissed more than two years ago, were now considered permanently dismissed; four cases filed before the Prosecutor’s Office (Paquito Diaz, Victoria and Pajo Samonte, Abelardo and Rosal Ladera and Rolando and Talla Mariano) were dismissed due to lack of probable cause or insufficient of evidence but leads were being sought as these cases could be reinvestigated; three cases (Leodegario and Mawal Punzal, Samuel and Berdaje Dote and Tirso and Masiglat Cruz) were under investigation; three cases (Noel Garay and De Guzman, Ramon Namuro and John Jun David et al.) had been archived, the latter reportedly because the accused are at large and the DOJ tapped its investigation agencies to reopen investigation with a view to identifying the perpetrators and apprehending them; and in one case (Samuel Bandilla), which had been dismissed by the Prosecutor’s Office, the dismissal was appealed to the DOJ, the case folder went missing due to improper turnover of files, the DOJ is exerting efforts to get a copy of the Petition for Review (the lawyer of the complainant was killed shortly after filing the Petition and the complainant does not have a copy) and the STF is exploring, given the peculiar circumstances of this case, the exercise by the Secretary of Justice of her extraordinary powers under Section 4 of Republic Act 10071, which grants the authority to act directly on any matter involving a probable miscarriage of justice within the jurisdiction of the prosecution staff, and reopen cases dismissed by the prosecutors if and when warranted by the facts; and (d) with respect to the 14 cases endorsed to the CHR, ten were recommended for closure and/or archiving due to desistance, disinterest to pursue the case or lack of witnesses, without prejudice to its reopening should new evidence be available; Resolution No. 1, Series of 2011, adopted by the National TIPC Monitoring Body on 24 May 2011 endorsed the CHR recommendation without foreclosing further prosecution should witnesses or evidence become available and recommended provision of livelihood assistance to the immediate dependants of victims of extrajudicial killings in cases recommended for closure or archiving; the Committee notes that the Government has already issued Administrative Order No. 185 on 20 May 2011, directing the concerned regional directors to extend the relevant livelihood grants; on 6 May 2011, the CHR recommended the closure of the remaining four cases (Jesus Butch Servida, Gerson Lastimoso, Gerardo Cristobal and Armando Leabres Pallarca) due to reasons of disinterest, desistance or lack of evidence and witnesses but the National TIPC Monitoring Body, taking into account the incomplete or conflicting sets of information, referred the cases back to the CHR and PNP Task Force Usig for further investigation.
2. 949. With reference to its previous comments concerning the archived cases closed for reasons of desistance, the Committee notes the confirmation of the closure of the eight cases, the recommendation of initially all 14 (subsequently corrected down to ten) cases before the CHR for closure and/or archiving due to desistance, disinterest to pursue the case or lack of witnesses as well as the Government’s view that, although murder is a crime against public order and should be pursued by the State, disinterest to pursue the case, lack of witnesses or refusal to file a case normally trigger closure or archiving of a case (unless there are other witnesses or the evidence is strong to convict the suspect beyond reasonable doubt), because the existing Philippine criminal justice system relies heavily on testimonial evidence, rather than forensic evidence. While noting with interest the initiative to provide livelihood assistance to the immediate dependants of victims of extrajudicial killings in cases recommended for closure or archiving, the Committee continues to consider that the killing, disappearance or serious injury of trade union leaders and trade unionists require 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 of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 48]. The Committee reiterates that such crimes, due to their seriousness, should be investigated and, where evidence exists, prosecuted ex officio without delay, i.e. even in the absence of a formal criminal complaint being lodged by a victim or an injured party. The Committee stresses that the absence of judgments 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]. 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.
3. 950. Recalling that justice delayed is justice denied, the Committee also 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 CHR and PNP Task Force Usig for further investigation.
4. 951. With regard to the Hacienda Luisita incident, the Committee expresses its deep concern that the Government confines itself to indicating that the STF has reported that the case of John Jun David et al. has been dismissed. The Committee recalls that the Hacienda Luisita incident, categorized in the case inventory as “John Jun et al.”, has claimed the lives of at least seven trade union leaders and members (Jhaivie Basilio, Adriano Caballero, Jun David, Jesus Laza, Jaime Pastidio, Juancho Sanchez and Jessie Valdez) and led to the injury of 70 others, and that nine police officers had previously been identified as suspects in this connection and recommended to be charged for multiple homicide. Noting the Government’s indication in its most recent communication that the case has been archived because the accused are at large but that the DOJ tapped its investigation agencies 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.
5. 952. As regards 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 (Sabina Ariola, Gil Gojol, Carlito Dacudao, Joel Ascutia, Arnold Cerdo, Armando Dolorosa, Maximo Barranda, Liza Alo, Vicente Barrios and Edward Panganiban), the Committee notes the Government’s indication that the National TIPC Monitoring Body, through Resolution No. 7, Series of 2012, classified one case of extrajudicial killing (Maximo Barranda) as possibly not labour related, that the case of Edward Panganiban is on its present case agenda, and that the remaining cases were referred to the concerned agencies (CHR, PNP Task Force Usig, DOLE, Supreme Court and the AFP) for prompt action and speedy disposition. The Committee 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. It urges the Government to indicate without delay the progress made in this regard.
6. 953. The Committee further notes the important step taken by the Government to combat impunity through the indictment of General Palparan for failing to prevent, punish or condemn killings that took place under his command responsibility. The Committee requests the Government to keep it informed of developments in this regard.

Abductions and enforced disappearances

1. 954. The Committee notes the Government’s indication that, on the 11 cases of abduction, the National TIPC Monitoring Body has issued Resolution No. 2-A, Series of 2011, on 24 May 2011 recommending the following actions: (i) one case (Normelita Galon et al.) to be referred to the PEZA to conduct a thorough investigation on the claimed abduction as well as the direct assault cases filed by the PEZA police against Galon et al.; (ii) 11 cases (including the case of Galon et al.) referred to the CHR for in-depth investigation or “final pass”. It also notes that, on 5 January 2012, the CHR recommended the closure of the eleven cases of alleged abduction but that the National TIPC Monitoring Body referred nine of those cases (Jaime Rosios; Melvin Yares; Normelita Galon et al.; Perseus Geagoni; Virgilio Calilap et al.; Lourdes Rubrico; Rogelio Concepción; Leopoldo Ancheta; and Rafael Tarroza) for further investigation and information back to the PNP Task Force Usig, DOJ and Office of the Ombudsman, some with request for clarification from the CHR. Noting that the majority of the cases of abduction had been recommended for closure due to unavailability of witnesses or for lack of interest of the parties to pursue the case, the Committee cannot be satisfied with this situation and firmly expects that these cases will be the subject of inquiries and investigations for evidence, including forensic evidence. As regards the new allegation of abduction brought forward by the KMU (Roy Velez), the Committee notes that, according to the Government, the case was referred to the agencies concerned for prompt action and speedy disposition. The Committee expects that the Government will soon be in a position to inform on progress made in investigating and prosecuting without delay all alleged cases of abductions and enforced disappearances and provide any relevant court judgments.
2. 955. Furthermore, the Committee recalls that it had previously noted that a Bill “defining and penalizing the crime of enforced or involuntary disappearance and for other purposes” was before the Congress. The Committee considered that the adoption of this Bill could represent an important step in acknowledging the existence of enforced disappearances and ensuring significant and dissuasive sanctions. Notwithstanding the considerable new material provided by the Government on other aspects, and ensuring significant and dissuasive sanctions, the Committee regrets that no new information has been provided on the progress made with the Bill and requests the Government to keep it informed in this regard and on the adoption of any other relevant legislative measures.

Lengthy procedures, witness protection and other issues

1. 956. With respect to the cases of extrajudicial killings, the Committee notes the Government’s indication that the DOJ has created a new task force (STF), which after perusal of related documents to familiarize itself with the matter, has started to look into the cases. The Committee also notes the information provided by the Government concerning the action taken by the Supreme Court to expedite the resolution of cases of extrajudicial killings. Recalling once again that justice delayed is justice denied, and that the absence of judgements against the guilty parties creates, in practice a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [see Digest, op, cit., para. 52] the Committee requests the Government to continue to take the necessary measures to ensure their swift investigation and judicial examination. It requests the Government to keep it informed of any developments in this respect.
2. 957. The Committee further requests the Government to supply information on the working of the regional trial courts, including on the length of procedures in practice.
3. 958. Furthermore, the Committee once again requests the Government 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.
4. 959. Lastly, the Committee recalls that it had previously noted that the Supreme Court considered that the witness protection programme (WPP) was shown to be insufficient in some aspects and that together with the CHR, it was reviewing the WPP on the Writ of Amparo adopted in 2007. The Committee further recalls that it had previously noted with interest the adoption, on 11 December 2009, of Act No. 9851 on crimes against international humanitarian law, genocide, and other crimes against humanity, providing, in section 13, for measures which could be taken by the court or prosecutor for the protection of victims and witnesses; and, on 10 November 2009, of Act No. 9745 (Anti Torture Act), which penalizes torture and other cruel, inhuman and degrading treatment or punishment, reinforces the earlier issuances of the Supreme Court on the Writ of Habeas Data and Writ of Amparo, and provides that “an ‘order of battle’ shall not and can never be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment”. The Committee also 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; and had noted that the abovementioned Acts contain provisions providing for criminal responsibility of superiors and penalizing commanding officers involved in the prohibited acts. 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.

Harassment and intimidation

1. 960. The Committee notes the information transmitted by the Government, according to which, the National TIPC Monitoring Body has issued Resolution No. 2-B, Series of 2011, on 24 May 2011, recommending the following actions concerning the 12 cases of harassment: (i) five cases for closure but with request for “final pass” by the CHR; (ii) seven cases to be referred to the CHR for in-depth investigation or “final pass”; and (iii) DOLE to conduct follow-up action/validation and submit a final report on whether the labour issues related to the harassment cases have already been resolved with finality. The Committee also notes that the CHR recommended on 5 January 2012: (i) the closure of three cases of harassment for lack of interest of the parties to pursue the case, and/or no material evidence to establish that human or labour rights violations have been committed (Angelita Ladera; Mercy Santomin and Vincent Borja, who was arrested and released on 13 October 2010 after the only witness failed to identify him in court); and (ii) further investigation on the other nine harassment cases (Rene Acinue Manalo; Ricardo Bellamia; members of Sulpicio Lines Workers’ Union; Ariel Geres Legaspi; Edison Alpiedan et al; Noel Tenorio Sanches; 52 workers of Chiyoda Integre Phils.; AldreneTambalo, Roque Roncales and Nestor Legaspi at Fresh Banana Agricultural Corporation – Osmiguel; and Vicente Barrios et al., Packing Plant 92 Workers’ Union and Joel Cuyos et al. at Fresh Banana Agricultural Corporation – Suyapa). Following the verification of the harassment cases by DOLE, the National TIPC Monitoring Body requested the CHR to expedite the resolution of four cases (Fresh Banana Agricultural Corporation – Osmiguel; Fresh Banana Agricultural Corporation – Suyapa; members of Sulpicio Lines Workers’ Union; and Edison Alpiedan et al.); requested the DOLE and NLRC to exert efforts to resolve expeditiously the remaining issues connected to the labour disputes in Nestlé and Hanjin Garments; and requested the RTIPC monitoring bodies to continuously gather information and monitor the cases. Noting that, in a number of the abovementioned cases, the supposed victims or their relatives executed affidavits denying the incident or stating that no complaint will be filed, the Committee trusts 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.
2. 961. With respect to the new allegations of harassment and intimidation brought forward by the KMU in its communications dated 30 September and 10 December 2009, as well as 2 June 2010 (Rene Galang, Gaudencio Garcia, Luz Fortuna, Jason Hega, et al., Belen Navarro Rodriguez, Leo Caballero, Romualdo Basilio et al., Arman Blasé, workers of Tritran Union, Universal Robina Corporation Employees’ Union, Worker Communities near Pacific Cordage Corporation, Maragusan United Workers’ Union et al., Romeo Legaspi, Union of Filipro Employees, Farm workers in the Cagayan Valley, Bukidnon and Davao del Sur; ULWU leaders, workers of Sumitomo Fruits Corporation, and union in Suyapa Farm), the Committee notes that, according to the Government, the National TIPC Monitoring Body classified one case of harassment and intimidation (Farm workers in the Cagayan Valley, Bukidnon and Davao del Sur) as possibly not labour related and referred the remaining cases to the concerned agencies (CHR, PNP Task Force Usig, DOLE, Supreme Court and the AFP) for prompt action and speedy disposition.
3. 962. Taking due note of the information provided by the Government concerning the allegations of union busting and intimidation of members of the AMADO–KADENA–NAFLU–KMU at Dole Philippines, the Committee 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 enumerated above and to indicate the progress made in ensuring their full and swift investigation and resolution.
4. 963. As regards labour dispute settlement, the Committee notes the information provided by the Government concerning reforms endorsed by the TIPC that are pursued to ensure the de judicialization of the labour dispute settlement system through: (i) a 30-day mandatory conciliation–mediation of all labour cases with settlement services that are speedy, impartial, inexpensive and accessible (DOLE Department Order No. 107-10 of 7 October 2010 and Rules of Procedure of the Single Entry Approach issued on 25 February 2011); and (ii) NLRC reforms, grievance settlement and voluntary arbitration. The Committee requests the Government to keep it informed on further progress achieved towards facilitating the settlement of labour disputes.

Militarization of workplaces

1. 964. The Committee once again reiterates its previous request to provide observations on the allegations concerning: (i) massive military deployment from the 66th IB of the AFP since September 2008 and incidents of military harassment against MUWU, NAMAOS, NAMASUFA, NAMASAN, Packing Plant 92 Workers’ Union and Rotto Freshmax Workers’ Union; (ii) conduct of meetings by the 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 the 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 Party list, 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.
2. 965. The Committee notes the information provided by the Government concerning: (i) the commitment of the new AFP Chief under the Internal Peace and Security Plan Bayanihan, under which troops will be shifted from combat operations to civilian–military operations; and (ii) the agreement in principle between DOLE and AFP on AFP’s participation in the RTIPCs for better appreciation of social dialogue, freedom of association and civil liberties; on the conduct of capacity-building seminars on freedom of association as it relates to civil liberties and human rights; and on the crafting of a Memorandum of Agreement or Social Accord with the DOLE, labour groups and employers that would clarify AFP engagement in the community and set the parameters on non-engagement in unions and workplaces. The Committee notes with interest the Government’s indication in its most recent communication that: (i) a Manifesto of Commitment between DOLE, the labour sector and the AFP has been signed on 21 July 2011, in which the signatories committed themselves to promote and protect human rights and workers’ rights; to engage in social dialogue to craft Guidelines on the conduct of the AFP/PNP relative to the exercise of workers’ rights to freedom of association, collective bargaining, concerted actions and other trade union activities and to establish a mechanism to allow joint implementation and monitoring of the said guidelines; (ii) the said DOLE–DILG–PNP–DND–AFP Joint Guidelines are being drafted by the Technical Executive Committee of the TIPC, are to be adopted on 8 May 2012 and expected to prohibit the deployment of military personnel in any labour-related mass actions and disputes except written request from DOLE due to the security situation; (iii) the revised Joint DOLE–PNP–PEZA Guidelines on the conduct of PNP personnel, economic zone police and security guards, company security guards and similar personnel during labour disputes have been issued on 23 May 2011, and orientation seminars have been conducted to facilitate their implementation; and (iv) the PNP Guidelines on the accountability of the immediate officer for the involvement of his subordinates in criminal offences to strengthen command responsibility have been issued. The Committee welcomes the adoption on 7 May 2012 of the Guidelines on the conduct of the DOLE, DILG, DND, DOJ, AFP and PNP relative to the exercise of workers’ rights and activities. It requests the Government to supply copies of the abovementioned PNP Guidelines on accountability and to continue to keep it informed regarding the measures taken or envisaged, in particular 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.

Arrest and detention

1. 966. The Committee recalls that it had previously noted with deep concern from the complainant’s allegations, that, for more than two-and-a-half years, 20 workers of Karnation Industries had been imprisoned, without judgment, in appalling conditions (prison cell not allowing 20 persons to sleep at the same time; inadequate food and medical care, etc.) for exercising their right to unionize and struggle against allegedly unjust and illegal practices of their employer; and that two of the 20 workers, Melvic Lupe and Leo Paro, had died in jail of tuberculosis. It had also noted that in November 2009, 14 out of the 18 workers had been released on bail. The Committee welcomes the information provided by the Government that all the (19) workers of Karnation Industries are now out on bail. The Committee trusts that this case will be concluded without delay and requests the Government to keep it informed in this regard.
2. 967. As regards the illegal arrest and 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, the Committee notes from the Government’s reply that Mr Borja was arrested for the murder of a certain Marianito Calibo, and that he was released on 13 October 2010 after the only witness failed to identify him in court. In the light of this information, and unless the complainant provides additional substantive information, the Committee will not pursue the examination of this allegation.
3. 968. On the remaining allegations of arrest and detention and subsequent filing of criminal charges against trade unionists, brought forward by the complainant (i.e. (i) the filing of fabricated criminal cases against AMADO–KADENA officers and members; (ii) the filing of trumped-up charges of multiple murder, attempted murder and multiple attempted murder against PAMANTIK–KMU Chairman, Romeo Legaspi, and other union officers; (iii) 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 Biclan; (iv) 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 (v) 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), the Committee notes from the Government’s report that the case involving Remigio Saladero was recommended for closure considering that the criminal charges against him were already dismissed, and that the case of Romeo Legaspi was referred to the concerned agencies for prompt action and speedy disposition.
4. 969. The Committee urges the Government to communicate its detailed observations, including specific information in relation to the arrests and the legal or judicial proceedings upon which they were based, in respect of the remaining allegations. The Committee once again urges the Government to take the necessary measures 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. It also requests the Government to communicate the texts of any judgments handed down in the above cases, together with the grounds adduced therefore.

The Committee’s recommendations

1. 970. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve 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; and
     • (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.
     • (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.