Informe provisional - Informe núm. 277, Marzo 1991

1. 303. The Committee has already examined this case on three previous occasions, each time presenting interim conclusions to the Governing Body for approval, the most recent of which were approved in May-June 1990 (see 272nd Report, paras. 312-343). By two communications dated 19 September and 1 October 1990, the Kilusang Mayo Uno (KMU) sent further allegations relating to this case.
2. 304. The Government supplied its further comments on this case in a communication dated 18 December 1990.
3. 305. The Philippines have 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. 306. The main issues outstanding after three previous examinations of this case concern: continuing investigations and/or trials into the deaths, attempted murders and arrests of several named union leaders, some of which date back to early 1987; police repression of the May Day 1988 celebrations in Laguna; a further series of nine specifically listed deaths or disappearances documented in 1989; unfair labour practices allegedly occurring during strike pickets of the G-Liner Bus Company and of Gaisano Iligan Inc. department store. While welcoming the Government's detailed replies on several listed incidents, the Committee nevertheless commented on the role of paramilitary groups in situations of direct violence or indirect pressure against unionists. It also regretted that yet another kind of weapons-bearing self-defence group, known as "Special CAFGU Active Auxiliary" companies or SKAAs, was now functioning.
2. 307. In the light of the Committee's conclusions, the Governing Body approved the following recommendations:
   • (a) as regards the continuing investigations in various jurisdictions concerning trade unionists Roxas, Barros, Tullao, Peru, Alberio, Cubilla, Adriano, Sarias, Cueva, Alderite, Espirita and Roda, the Committee requests the Government to supply further information on developments in proceedings and copies of any decisions or judgements handed down;
   • (b)...
   • (c) as regards four specific incidents occurring in 1988-89 on which the Government has supplied no new information or which, according to the Government, have been difficult to investigate (namely, the disappearance of Mr. B. Clutario, the trial of Mr. W. Orculla, police repression of the Laguna May Day 1988 gathering and the alleged torture of Mr. S. Sabidalas), the Committee requests the Government to renew its efforts to trace any detail that could help the Committee examine the alleged events in full knowledge of the facts;
   • (d) it also requests the Government to supply its comments on the nine specific incidents listed in the complainant's most recent allegations involving deaths or disappearances of unionists documented in 1989, as well as on the unfair labour practices during strike pickets in 1989;
   • (e) given the ambiguity of the role of the Civilian Auxiliary Force Geographical Units (CAFGUs) and the creation of yet another type of weapons-bearing subgroup known as "Special CAFGU Active Auxiliary" companies, the Committee again urges the Government to dismantle such groups;
   • (f) the Committee requests the Government to supply up-to-date figures on the number of human rights complaints filed with the various national-level monitoring bodies in the Philippines including data on those complaints rejected, investigated, settled or referred on to the courts for penal action.

B. Further allegations from the complainant

1. 308. In a letter dated 19 September 1990, the KMU alleges that despite repeated calls from the Freedom of Association Committee to disband the CAFGUs and other arms-carrying groups which are threatening trade union life in the Philippines, the trade union and human rights situation in the country shows no sign of improvement.
2. 309. According to records established by a non-governmental Filipino organisation called the Commission on Trade Union and Human Rights, between January and September 1989 a total of 180 cases of union repression were committed by units of the military, police, vigilante and other paramilitary groups, involving a total of 1,142 workers. It supplies a copy of a report, presented to Congress on 29 March 1990 by the Philippines Senate Committee on Justice and Human Rights and entitled "Human Rights Situation in the Philippines", which criticised the so-called "total war" policy of President Aquino to eliminate armed insurgency. It was that policy that the complainant claims gave impetus to the creation of fanatical anti-communist groups which turned on workers and peasants because the authorities considered anybody critical of the Government's policies to be a sympathiser or member of the revolutionary movement. The KMU cites a passage from the Senate Committee's report supporting its view that this "total war" policy has hit trade unions: "Government officials, particularly the military, were found to have made loose and at times deliberate statements linking many cause-oriented groups to outlawed organisations such as the (Communist Party of the Philippines). As a result of the said labelling, such groups were placed in danger of being targeted by military, paramilitary and anti-communist vigilante groups".
3. 310. The KMU goes on to list (with copies of circulars, press clippings, statements in Tagalog, etc. in support) several specific incidents of violations of trade union rights involving members of the military:
   • - on 23 October 1989 the commanding officer of the 224th Philippines Constabulary (PC) Company in Laguna informed Mr. Verleen Trinidad, President of the KMU-affiliated OLALIA labour federation, that he was listed on the military's order of battle, meaning that he was wanted for alleged subversion or for membership of illegal organisations and he was later invited to report to a military camp for questioning;
   • - following pickets in front of the Department of Labour and Employment condemning the inclusion of labour leaders in these battle lists, the Senate Committee on Justice and Human Rights ordered the military to strike off the names of legitimate labour leaders; however some - Mr. Trinidad, for example - still receive anonymous death threats and feel obliged to change residences in order to avoid harm;
   • - Mr. Robert Colendres, president of the ALAB labour organisation was also on a military list and was threatened by them when he refused to sign a statement admitting that he belonged to an outlawed body;
   • - the PAMANTIK labour alliance alleges that armed men have visited its offices looking for labour leaders and fears that this is a prelude to a military raid;
   • - on 6 March 1990, Nestor Libalib, a union leader in the Blue Bar Coconut Company was arrested without warrant and detained by members of the 237th PC Company; he was reportedly tortured while in detention;
   • - on 7 March 1990, Cornelio Tagulao, a leader of a workers' cultural group called SIKLAB was shot dead by unidentified men when driving a tricycle in front of the Mariveles market and relatives believe that the real target was his brother, Rufo, a labour leader in the Bataan Export Processing Zone;
   • - on 10 March 1990, soldiers of the 702nd Infantry Batallion raided without a warrant the office of AMBA-BALA, a KMU-affiliated labour alliance in the province of Bataan, ransacked the premises and arrested Rolly Olano, General Secretary of one of the union's local chapters;
   • - on 26 August 1990, Lydia Sicat, an activist of the union Workers' Alliance Region III, was abducted by military men claiming to be narcotics undercover agents in Pampanga; she escaped two days later, claiming that she had been interrogated by what turned out to be members of a special counter-insurgency unit who insisted she was a member of the outlawed Communist Party; her union has filed the case with the Department of Justice and the regional office of the Philippines Commission on Human Rights;
   • - Mr. Primo Amparo, President of the KMU-affiliated AMBA-BALA union, claims that the military have threatened to crush his and other militant labour organisations as part of their drive to wipe out insurgency in Central Luzon; this militarisation has taken a heavy toll on simple civilians and legitimate trade unionists;
   • - on 25 March 1990, about 50 members of the Capitol Regional Military Command raided a labour seminar in Quezon City and arrested 60 workers attending a trade unionists' seminar; all were released the following day, except the two instructors (Marlon Luares and Elizalde Malaluan) who were held for a few weeks on charges of subversion based on membership of the New People's Army; they are presently released on bail.
4. 311. The KMU adds that the situation of sugar workers on Negros Island has not improved: 206 members of the National Federation of Sugar Workers (NFSW) have been killed by CAFGUs between February 1986 and February 1989 and these paramilitary groups are used by landlords as private armies against the workers' demands, such as agrarian reform. The KMU quotes the testimony of Major General Gerardo Flores, Chief of the PC Intelligence, before a Congress committee, according to which "CAFGUs have become a convenient escape hatch for members of private armies to attain legal status". The president of the NFSW claims that CAFGU detachments are set up in the haciendas where workers' co-operatives exist, with the apparent intention of terrorising workers so that they would not demand higher wages. The NFSW alleges that the landlord-created Sugar Development Fund Inc., which collects a levy on sugar produced, is being used to pay for the training, clothing and arming of CAFGUs. The company has admitted funding the CAFGUs which are under the supervision of the military, in a document submitted to the Senate Committee on Justice and Human Rights.
5. 312. According to the complainant, David Borja, Chairman of KMU-affiliated United Workers Union of Lanao, was shot dead by three unidentified men when driving his motorcycle home on 29 April 1990. It also alleges that a Special CAFGU Active Auxiliary (SCAA) unit is being trained for deployment at the Atlas Consolidated Mining Corporation, the site of anti-union vigilante action reported in previous examinations of this case.
6. 313. Lastly, the KMU reports that on 9 July 1990 the Supreme Court upheld the validity of the arrest of suspected subversives without a warrant on the ground that subversion is a continuing crime; this reasoning had become doctrine under the Marcos regime. Two Justices, in a dissenting opinion, called this a "dangerous doctrine", and many Filipino human rights groups have criticised it. The KMU concludes by stating that, despite repeated assurances from President Aquino that "human rights violations will never become a pattern nor policy of (her) Government", the Government is unable to fulfil its commitment to protect trade union and human rights.
7. 314. In its communication of 1 October 1990, the KMU alleges the murder, on 27 September 1990 of Edwin A. Fernandez, KMU national council member, and of Sergio "Jojo" Atilano, National Federation of Labour Unions (NAFLU) education instructor, at the hands of Reynaldo Arcelon, Chief Security Guard at the Laws Textiles Philippines Ltd., Manila. The unionists had been allowed on to the premises that day to monitor a certification election they were contesting against the incumbent union, the Confederation of Free Workers (CFW-TUCP). According to the KMU, Mr. Fernandez had taken photos of the security guard menacing pro-NAFLU voters at the ballot boxes; he was then shot in the neck along with Mr. Atilano who ran to his aid. The management immediately ordered the workers home and closed the factory gate; the bodies were left unattended for two hours until the management contacted the Taguig Police Station; the autopsy report has still not been released. The KMU believes that this cold-blooded violence is part of an anti-KMU policy exercised by that company since the KMU began organising workers there in 1988.
8. 315. In addition, the KMU alleges the death of three striking employees of the Goldilocks Bakeshop in Mandaluyong, Manila, on 28 September 1990 at the hands of security guards hired from the Combined Blue Dragon Security Agency. Those shot dead when the security guards stormed the picket line were: Oriel de la Torre, Nestor Apolonio and Jun Gripal. A representative of the Department of Labour and Employment (DOLE) was allegedly serving a back-to-work order on the strikers at that time. The police arrested 96 security guards and seized numerous firearms, including two armalite rifles with grenade launchers (a grenade was fired at the picket line but failed to explode). The KMU alleges that five other arrested persons confessed to being paid US$6.00 by Goldilocks management to disperse the strikers. The complainant explains that the 800-strong independent union went on strike on 4 September over economic benefits and the dismissal of 20 union members; the strikers returned to the picket line after the massacre and were allegedly fired on again two days later by company guards. The KMU calls for the punishment of the security guards and an investigation into the connivance of the employer and DOLE officials during this violent dispersal.

C. The Government's reply

1. 316. In its communication dated 18 December 1990, the Government first points out that most of the general allegations raised by the KMU have already been addressed by the Government in its earlier replies on this case.
2. 317. As regards the shooting at the Laws Textiles Philippines Ltd., the Government explains that the certification election being carried out on the premises on 27 September 1990 was supervised by a DOLE representative, Mrs. A.C. Gregorio. According to her, the shooting occurred when commotion broke out outside the polling booths: several gunshots were heard resulting in the death of a KMU leader. The police have investigated the incident and, on the basis of eyewitness identification, have filed criminal proceedings for murder before the regional trial court against Reynaldo Arcilon. The trial is under way.
3. 318. As regards the shooting at Goldilocks Bakeshop, the Government states that investigations have led to the filing before the regional trial court of criminal charges against one of the security guards, Danilo de la Cruz, and three other persons involved in the violence on 28 September 1990 which resulted in the death of three picket line workers.
4. 319. As regards the alleged use of the "total war policy" as a means of union repression, the Government denies that it has or at any time had adopted this so-called policy. Although the Government is currently besieged with threats coming from Communists and ultra-right groups, it has never resorted to repressive measures to solve this problem. The measures that have been and are being used relate solely to the maintenance and monitoring of peace and order through the regular police, military forces and the peace and order councils described in previous government replies on this case. The Government cites the Senate Committee report referred to by the KMU as a manifestation of the Government's efforts to promote recognition and respect for human rights in the country. Other developments include: the establishment of peace and order councils; the abolition of vigilante groups; peace talks with rebel groups attested to by newspaper clippings supplied by the Government.
5. 320. According to the Government, it is not surprising for the police and the military to keep a list of persons known to be members of illegal groups, including the Communist Party and the New People's Army. The order of battle referred to by the KMU is merely a list of wanted criminals; the fact that certain listed persons happen to be members of trade unions, political parties or religious bodies is of no consequence because their inclusion on the list is based not on their affiliation to such organisations but on the acts they have committed which are considered to be illegal in that country. The Government cannot understand why the KMU continues insisting that it is being persecuted for exercising its rights and freedoms. According to the Government, although the KMU has engaged in acts that might be considered criminal offences, charges have not been brought against it; for example, during a recent violent general strike certain public and private property was destroyed and yet the Government restricted itself to condemning the violence and filing individual criminal charges against those caught in the act of committing a crime.
6. 321. Regarding the allegations of trade union and human rights violations, the Government recalls the fragile peace and order situation in the country resulting from the violent activities of both leftist and rightist rebels. It states that it is the primary duty of the State to protect its citizens against such violence. The arrests and raids referred to by the KMU were conducted by virtue of the military's strong belief that the individuals concerned were engaged in criminal and illicit activities, such as sedition, subversion and other crimes against the State. The Government stresses that the reasons were not based on the individuals' membership of or involvement in trade unions and their activities, despite the KMU's attempts to portray them as such.
7. 322. As regards the soldiers' raid on a workers' seminar, the Government admits it took place, but points out that the raid yielded much subversive and seditious material; the raid did not take place because the premises housed workers' seminars, but because they were used, at that time, as a repository for criminal effects which the Government can lawfully confiscate.
8. 323. Regarding the role of CAFGUs on Negros Island, the Government repeats its previous assertion that neither the Government nor the country's laws countenance the existence of armed civilian groups.
9. 324. As for the Supreme Court decision on arrests without warrants, the Government states that it is universally accepted that a person in the act of committing a crime may be arrested without warrant, and that this is the underlying principle behind the Supreme Court's decision to allow the arrest of subversives without the benefit of a warrant inasmuch as subversion is a continuing crime.
10. 325. Lastly, the Government undertakes to supply the information requested by the Committee in May-June 1990 on the aspects of this case still outstanding after the various previous examinations. It states, however, that it finds nothing ambiguous about the CAFGUs, which were created out of the State's exercise of an inherent attribute of sovereignty, namely to protect its citizens from violence and to maintain peace and order. The fact that there is growing insurgency in the country is, under any legal system, sufficient justification for the State to exercise this power. The Government states that it cannot, in good conscience, jeopardise the safety of the majority of its citizens by abolishing these units.

D. The Committee's conclusions

1. 326. The Committee deplores the death of trade unionists following shootings at the Laws Textiles Philippines Ltd. certification ballot and the Goldilocks Bakeshop picket line. It notes that the trials of the security guards accused in these murder cases are continuing. It draws the Government's attention to the importance of prompt trials aimed at fully ascertaining the facts, determining responsibilities and punishing those responsible (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 78) and asks it to inform the Committee of the final decision in these proceedings as soon as judgements are rendered.
2. 327. The Committee notes the Government's reply to the other recent communications in this case, but must express its deep regret that certain serious and detailed allegations have remained without a reply from the authorities for some time. In particular, the Committee regrets that no information - apart from a general exposé on the role of the State in preserving law and order - has been supplied on the arrest of three union leaders (Nestor Libalib, Rolly Olano and Lydia Sicat) in March and April 1990 and the death of unionist David Borja on 29 April 1990. It accordingly urges the Government to supply full and detailed replies on these aspects of the case so that the Committee will be in a position to examine them when it next considers the case.
3. 328. As regards the allegations of military and police harassment of union leaders and members, including the creation of "orders of battle"/wanted lists, threats, interrogations and raids, the Committee notes the Government's reply that certain of these measures are justified as part of the State's law enforcement role in tracking down individual criminals and fighting crime. The Committee notes in particular the Government's strong denial that the trade union membership or involvement of those involved had anything to do with the measures taken. Faced with this direct contradiction between the complainant's view of these measures and the Government's explanations, the Committee can only insist on receiving as rapidly as possible copies of any judgements handed down following the various measures listed by the KMU, as well as any decisions following the filing of cases with the Philippines Commission on Human Rights, which might throw light on the real motives for the arrests and raids. In particular, the Committee would ask the Government to supply details on the trials against the two trade union instructors, Messrs. Marlon Luares and Elizalde Malaluan, arrested and released on bail after the military raid on a trade unionists' seminar on 25 March 1990. It also asks it to send examples of the seditious material which it claims to have confiscated. Only then will the Committee be in a position to assess fully this allegation.
4. 329. In the meantime, the Committee would nevertheless recall the importance it has always attached to respect for certain civil liberties, without which trade union rights cannot be fully exercised. These civil liberties are listed in the resolution on trade union rights and their relation to civil liberties adopted by the International Labour Conference in 1970 and include freedom from arbitrary arrest and detention, the right to a fair trial and the right to protection of trade union property. In drawing the Government's attention to these principles, the Committee notes that the Senate Committee report of March 1990 - cited in both the complainant's most recent allegations and in the Government's reply - warned against certain excesses on the part of government officials, particularly the military, which opened the door to interference with cause-oriented groups and simple citizens.
5. 330. The Committee remains particularly preoccupied at the continued existence and alleged proliferation of armed groups - whether they be called Civilian Auxiliary Force Geographical Units, Special CAFGU Active Auxiliary Companies, private armies or whatever - which are not formally tied to the regular law and order bodies of the nation. Indeed, one of the recent allegations to which the Government does not specifically reply is that an employer-created company is being used to fund such groups specifically to defeat legitimate workers' activities on Negros Island. While welcoming the Government's repeated statements that neither it, nor the country's laws, countenance the existence of armed civilian groups and that its commitment to respect of human rights is manifested by the abolition of vigilante groups, the Committee cannot but express its concern when the Government concludes its reply by a refusal to abolish the CAFGUs.
6. 331. In its previous examinations of this case, the Committee noted that these bodies were set up under the authority of the Department of National Defence by virtue of Executive Order No. 264 of 1987 as one of many efforts to halt the proliferation of unsupervised self-defence groups, and that their actions were to be monitored by the peace and order councils in accordance with Executive Order No. 309. However, as already clearly stated in the Committee's May-June 1990 examination of this case (272nd Report, para. 341), there continue to be well-documented cases of direct anti-union violence by paramilitary groups. Moreover, an earlier Senate Committee report (of 1988) specifically called for the dismantling of such groups. It thus appears that the CAFGUs have not attained the objective for which they were created and, what is worse, are clearly regarded by one of the largest labour federations in the country, which is one of the complainants in this case, as yet another officially condoned paramilitary group. This is the ambiguity in the role of the CAFGUs to which this Committee has referred in past examinations of the case and which has led the Committee to call for their abolition. In view of the Government's insistence that CAFGUs cannot be equated with vigilante groups which it has vowed to abolish, the Committee asks the Government to supply up-to-date information on the role of the CAFGUs, and their auxiliary companies known as SCAAs in the light of the allegations examined in this case.
7. 332. As regards the recent Supreme Court decision on arrests without warrants, the Committee notes the Government's statement that this applies to cases of subversion. Inasmuch as this judicial doctrine is restricted to such cases, this Committee has no competence to comment on it. However, it would recall that given the importance it has always attached to trade unionism being exercised in a climate free of insecurity and fear, certain basic guarantees of due process should always be respected in the case of detained trade unionists (see, in particular, Digest, para. 110).
8. 333. Lastly, the Committee notes the Government's undertaking to send further information on the other allegations still pending after the previous examinations of this case, in particular information on (1) developments in several trials (concerning trade unionists Roxas, Barros, Tullao, Peru, Alberio, Cubilla, Adriano, Sarias, Cueva, Alderite, Espirita and Roda); (2) any new inquiries into the situations of Messrs. Clutario, Orculla, Sabidalas and the Laguna May Day 1988 incident; (3) the nine specific deaths or disappearances documented in 1989 and unfair labour practices during strike pickets in 1989, listed in the Committee's 272nd Report at paragraphs 320 and 322; (4) up-to-date statistics on the operations of the various bodies established in the country for the promotion and monitoring of human rights violations. In addition to this request for further information the Committee would ask the Government to supply details on the trials against the two trade union instructors, Messrs. Marlon Luares and Elizalde Malaluan, arrested and released on bail after the military raid on a trade unionists' seminar on 25 March 1990.