Informe provisional - Informe núm. 380, Octubre 2016

1. 811. The complaint is contained in a communication dated 5 February 2016 from the National Confederation of Transport Workers’ Unions of the Philippines (NCTU), the Center of United and Progressive Workers of the Philippines (SENTRO) and the International Transport Workers’ Federation (ITF).
2. 812. The Government forwarded its observations to the allegations in communications dated 28 October 2015 (communication concerning the same matters sent to the Committee of Experts on the Application of Conventions and Recommendations and subsequently referred to by the Government), and 31 May, 29 June and 17 October 2016.
3. 813. 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. The complainants’ allegations

1. 814. In their communication dated 5 February 2016, the complainants allege that the Government has failed to adequately investigate the murders and attempted murders of a number of trade unionists, including NCTU leaders Antonio Petalcorin and Kagi Alimudin Lucman, and identify, bring to trial and convict the guilty parties. These acts and omissions constitute violations of Convention No. 87, which the Government ratified in 1953, and the principles of freedom of association protected under the ILO Constitution, which the Government is bound to respect by virtue of its membership of the ILO.
2. 815. The NCTU was originally founded in 2003 as the NTU. The NCTU is affiliated to SENTRO, a national trade union centre, and the ITF. The Land Transportation Franchising Board of Davao (LTFRB) is a public body under the direct control of the Department of Transportation and Communications.
3. 816. On 28 November 2012, Antonio Petalcorin, the then President of the NCTU-affiliated Network of Transport Organizations (NETO), Emilio Rivera, the then Chairperson of the Matina Aplaya Transport Cooperative, and Carlos Cirilo, Chairperson of the Mindanao Alliance of Transport Organizations, filed a complaint with the Office of the Ombudsman against the Director of the LTFRB, alleging corruption. Among other things, the petitioners claimed that the Director took bribes in exchange for franchise approvals. The three petitioners were all transport leaders and activists in Davao City.
4. 817. On 25 January 2013, Mr Rivera was killed by unknown assailants near the LTFRB office. The police announced the capture of a suspect, but he was later released. To date, no proper police investigation has been conducted and the assailants have not been identified.
5. 818. On 21 April 2013, a hand grenade was found near the front entrance to Mr Cirilo’s family home. It was discovered by his son-in-law. The subsequent police investigation concluded that the primary safety pin of the hand grenade had been removed. On 21 May 2013, Mr Cirilo’s wife discovered another hand grenade at their property. The police investigation confirmed that the only reason it failed to detonate was because of a defective secondary safety pin. Between November 2012 and May 2013, Mr Cirilo also received a number of threatening SMS messages and had animal excrement thrown at his office. His wife was also verbally threatened by the Director. Despite these incidents, Davao City Police refused to give Mr Cirilo a police escort. He subsequently went into hiding with his wife.
6. 819. On 2 July 2013, Mr Petalcorin was fatally shot three times in the chest as he was leaving his residence at around 8 a.m. to go to the LTFRB office. The police investigation identified the killer as a known gun-for-hire assassin, but he has not been brought to justice. Prior to his murder, Mr Petalcorin had received a number of death threats.
7. 820. To date, the Ombudsman has failed to investigate the case against the Director. The complainants believe that the murders of Mr Rivera and Mr Petalcorin and the threats, pressure and violence against Mr Cirilo and his family are linked to the case against the Director, a public official, and their roles as trade union leaders. The complainants consider these murders to be extrajudicial political killings. A police investigation into the possible involvement of the Director and/or LTFRB in the murder of Mr Petalcorin was opened, but never concluded. The complainants do not accept the Government’s finding, via the Davao City Commission on Human Rights, that the murder of Mr Petalcorin was non-political and unconnected to his anti-corruption advocacy, and consider the investigation to be inadequate.
8. 821. On 18 July 2013, Kagi Alimudin Lucman, then then leader of the Cotabato City branch of the NCTU was shot dead by two gunmen on a motorcycle after dropping off his children at school. To date, the perpetrators of this crime have not been identified. The complainants believe that Mr Lucman was assassinated because of his trade union activities.
9. 822. The complainants denounce the Government’s failure to guarantee a social climate conducive to the effective exercise of trade union rights as enshrined in Convention No. 87 and the principles of freedom of association. In particular, the complainants refer to: (i) the lack of adequate investigations, prosecutions and independent judicial inquiries into the murders of Emilio Rivera, Antonio Petalcorin and Kagi Alimudin Lucman; (ii) the failure to adequately investigate the physical and non-physical threats against Mr Cirilo and his family; and (iii) the refusal to give Mr Cirilo a police escort despite two failed assassination attempts and the murders of Emilio Rivera and Antonio Petalcorin in Davao City.
10. 823. The complainants highlight the common understanding that freedom of association is wholly ineffective without the protection of trade unionists’ fundamental civil liberties. In their view, it is evident that the leaders were targeted for their trade union activities, including attempts to combat corruption at the LTFRB.
11. 824. The complainants underline that the incidents cited above are by no means isolated events. The ILO’s supervisory bodies (including the Committee of Experts on the Application of Conventions and Recommendations and the International Labour Conference Committee on the Application of Standards (CAS)) have been reporting on the Government’s failure to protect the civil liberties of trade unionists for many years.
12. 825. In 2007, following numerous reports of extrajudicial killings and harassment of trade unionists, the CAS called on the Government to accept a high-level ILO mission. Despite the Government setting up the Melo Commission to investigate the rising number of extrajudicial killings, the CAS heard in 2009 that the number of trade unionists killed in the Philippines between 2001 and 2008 was 87, including five in the preceding year. The Government only accepted the high-level mission in 2009. Among other things, the mission concluded that the rapid establishment of a high-level tripartite inter-agency monitoring body to investigate extrajudicial killings and violence against trade unionists would constitute an important first step in bringing the relevant partners together to engender a greater common understanding of the issues.
13. 826. In January 2010, the Government announced the formation of the National Tripartite Industrial Peace Council (NTIPC) to act as a high-level monitoring body on the application of international labour standards and, in particular, of Convention No. 87. Regional monitoring bodies were also set up to, among other things, investigate allegations of extrajudicial killings. Furthermore, the Inter-Agency Committee (IAC) on Extrajudicial Killings, Enforced Disappearances, Torture and Other Grave Violations of the Right to Life, Liberty and Security of Persons was created pursuant to Administrative Order No. 35 (AO 35). It was also announced in 2012 that a national monitoring mechanism was to be set up under the auspices of the Commission on Human Rights (CHR) with a view to monitoring the nation’s progress in resolving extrajudicial killings.
14. 827. Despite the Government’s laudable efforts to combat violence against trade unionists, the complainants regret that no judicial or non-judicial measures have been initiated following the murders of Mr Rivera, Mr Petalcorin, and Mr Lucman and the murder attempts and threats against Mr Cirilo. In October 2015, in its latest comments on Case No. 2528, the Government stated that the IAC had already finished the evaluation of all reported cases of extrajudicial killings of trade union leaders and members. It is unclear whether these comments refer solely to extrajudicial killings mentioned in that case.
15. 828. In conclusion, the complainants believe that the Government’s failure to conduct independent judicial inquiries into the killings of Mr Rivera, Mr Petalcorin and Mr Lucman and the murder attempts and threats against Mr Cirilo has created a culture of impunity, which reinforces the climate of violence and insecurity and has a damaging effect on the exercise of trade union rights.

B. The Government’s reply

1. 829. In its communications dated 28 October 2015 and 31 May, 29 June and 17 October 2016, the Government refers at the outset to the efforts made to ensure the expeditious investigation, prosecution and resolution of pending cases concerning alleged harassment and assassination of labour leaders and trade union activists. The National Tripartite Industrial Peace Council – Monitoring Body (NTIPC–MB) has built a comprehensive inventory of 65 cases of extrajudicial killings and attempted murder of trade union leaders and members with identified future actions to ensure investigation, prosecution and conviction. The NTIPC–MB has issued resolutions to facilitate movement on cases of extrajudicial killings, harassment and abductions involving trade union leaders/members. Of the 65 cases, 50 occurred from 2001 to June 2010 under the Arroyo administration and 15 under the Aquino administration (including Emilio Rivera, Antonio Petalcorin, and Kagi Alimudin Lucman).
2. 830. Based on the NTIPC–MB initial evaluation, 28 cases are possibly labour-related, while 29 are possibly not labour-related. NTIPC–MB has recommended closure or dropping 18 of the 65 cases. On the other hand, four cases endorsed by the NTIPC–MB to the Supreme Court for expeditious resolution have been resolved by the trial courts, two of which have resulted in convictions. NTIPC–MB endorsed nine cases to the Department of Justice (DOJ) for possible reinvestigation. Out of this number, two were with recommendation for closure as the cases were dismissed by the court with finality. The DOJ ordered the reinvestigation and resolution of seven cases filed before the Prosecutors Office, but no new developments or progress have been reported to date.
3. 831. To expedite the investigation and prosecution of cases of alleged extrajudicial killings, the Government has re-established and strengthened inter-agency coordination by introducing two major initiatives: (i) the creation of the IAC; and (ii) the cooperation and coordination between prosecutors and law enforcement investigators.
4. 832. Firstly, as to the IAC, it was created on 22 November 2014 through AO 35 and mandated to investigate old and new cases of extrajudicial killings, enforced disappearances, torture and other grave human rights violations. Among others, the IAC is tasked to: inventory all cases of extrajudicial killings, enforced disappearances, torture and other grave violations of the right to life, liberty and security of persons, perpetrated by State and non-State forces alike, from all sources (Government and non-government); and prioritize for action unsolved cases and assign special investigation teams to conduct further investigations for possible identification of perpetrators.
5. 833. The Operational Guidelines of AO 35 expand the traditional meaning of extrajudicial killings. The IAC does not only focus on the killing of political activists but increased the scope of protection to include advocates or those perceived to be involved in an advocacy. AO 35 provides redress to cases of the killing of labour leaders and labour advocates (and even those mistaken to be so) through investigation by composite teams as well as the supervisory and monitoring processes of the various special oversight teams, and, ultimately, the plenary powers of the high-level IAC itself. The NTIPC–MB, together with its regional counterparts, is recognized as the source of information on incidents and circumstances surrounding killings of trade union leaders or members. Thus, the social partners, particularly the labour sector, were invited to take advantage of the mechanisms of the IAC and to actively participate in the investigation of cases. They were given seats in the meetings of the IAC as observers or possible sources of information on labour-related cases. The Office of the Ombudsman and the CHR participate in the IAC as independent observers.
6. 834. The NTIPC–MB has brought before the IAC all of the 65 cases of extrajudicial killings, 11 cases of abduction and 12 cases of harassment. The IAC has focused on the 65 cases of extrajudicial killings of which 11 have been identified as genuine extrajudicial killings covered by AO 35 based on the above criteria. These cases were assigned to the different IAC structures (special investigation teams; special investigation team for unsolved cases; special oversight team) and, to date, three have been recommended by the IAC for closure due to lack of material evidence or leads which could have been useful for filing said cases in court. Progress in the investigation of the 11 AO 35 cases is hindered by lack of material witnesses or non-cooperation of victims’ families and relatives.
7. 835. The 54 cases not covered by AO 35 are handled and investigated through the regular process of criminal investigation and prosecution. According to the DOJ, the reasons for the exclusion from AO 35 include: (i) insufficiency of evidence which triggers referral of the case to agencies like the Philippine National Police (PNP), the National Bureau of Investigation (NBI) and the CHR for further investigation subject to a second review by the technical working group; and (ii) absence of all the elements of extrajudicial killings as provided in the AO 35 Operational Guidelines. The non-AO 35 cases include those of Antonio “Dodong” Petalcorin, Emilio Rivera and Kagi Alimudin Lucman.
8. 836. Secondly, as to the closer cooperation and coordination between prosecutors and law enforcement investigators, Joint Department Order No. 003-2012 (Operational Guidelines for Prosecutors and Law Enforcement Investigators in Evidence-Gathering; Investigation and Case Build-Up; Inquest and Preliminary Investigation; and Trial of Cases of Political-Activist and Media Killings) was signed by the DOJ and the Department of Interior and Local Government (DILG) on 5 November 2012 to ensure cooperation of prosecutors and law enforcement investigators in the investigation, case build-up, inquest, and preliminary investigation and trial of cases. Under the said Guidelines, prosecutors and law enforcement investigators shall work together as early as case build-up and evidence gathering after an incident has been assessed to be a possible political activist or media killing. A group of prosecutors and law enforcement investigators shall be convened to identify the witnesses, assist in the preparation of their affidavits and evaluate the Scene of the Crime Report and other physical or object evidence necessary in the filing of the case. After the termination of the investigation, the same group shall be responsible for the filing of the case/complaint before the prosecution office concerned. After which, the group will continue to convene for the purpose of evaluating and gathering additional evidence necessary to further strengthen the case. The Joint Guidelines run parallel to the efforts of the AO 35, not only to come up with a credible list of human rights violations, but, more importantly, to ensure the successful prosecution of such cases.
9. 837. Aside from re-establishing and strengthening inter-agency coordination, the Government is also working towards the strengthening of the operational capability of the PNP and the Armed Forces of the Philippines (AFP) to foster an enabling environment for the enjoyment of constitutionally guaranteed civil liberties and trade union rights. This is done through undertakings such as the revision or formulation of guidelines or manuals (Joint DOLE–PNP–PEZA Guidelines in the Conduct of PNP Personnel, Economic Zone Police and Security Guards, Company Security Guards and Similar Personnel During Labour Disputes of 23 May 2011; and Guidelines on the Conduct of the DOLE, DILG, DND, DOJ, AFP and PNP Relative to the Exercise of Workers’ Rights and Activities of 7 May 2012), conduct of capability-building activities, infrastructure developments and distribution of advocacy materials. The Philippines–European Union technical cooperation programmes on the protection and promotion of human rights, which has resulted in significant improvement in closing the gap between investigation and prosecution, is one of those undertakings.
10. 838. The Government admits that, despite the two major initiatives to strengthen inter-agency coordination, the prospects of the reopening or reinvestigation of old cases are not too positive, given the limited capacity concerning forensic evidence and the reliance on witnesses or testimonial evidence. It indicates continuing hurdles regarding desistance or disinterest of the victims or their families to pursue the case. Thus, of the 65 cases of killings, only 12 were filed in court with nine of the cases with resolution (seven of which occurred during the Aquino administration) and three pending resolution.
11. 839. Specific to the 15 cases of alleged extrajudicial killings and attempted murder under the Aquino administration, two were considered extrajudicial killings cases as covered by AO 35. The NTIPC–MB considered two cases as possibly not labour-related and five as possibly labour-related. Eight are not covered by any NTIPC–MB resolution and the PNP Directorate for Investigation and Detective Management (PNP–DIDM) recommended to close two cases and to treat six cases as regular PNP cases considering that the circumstances of the same could not establish a direct link to infringement of the exercise of freedom of association and the right to organize.
12. 840. Most recently, the Government reports the adoption on 25 May 2016 of TIPC Resolution No. 1, s. 2016, “Calling the Strengthening of the NTIPC Monitoring Body through the Creation of Fully-funded, Independent and Capacitated Case-based Tripartite Validating Teams for Cases of Extrajudicial Killing, Enforced Disappearance, Torture, Harassment, and Other Grave Violations Committed against Trade Unionists Needing Independent Validation or Review”. This Resolution is anchored on instances when specific cases require further validation and review of gathered information for it to serve as significant support to case build-up and resolution. The Tripartite Validating Teams shall gather and/or verify information with the following: union or organization to which the alleged victim is affiliated; victim's family and/or relatives; company/management involved in the case or complaint; investigative and prosecutorial arms of the government; local government units; and other concerned agencies such as the SC, CA, DO], NBI, PNP, CHR, DILG, including the military when needed. There shall be a separate NTIPC-MB Tripartite Validating Team for each of the identified ILO Cases. Each team – composed of one representative from the DOLE, one representative from the labour sector, and one representative from the employers sector – shall undertake independent validation of specific reported cases of grave violations committed against trade unionists. It shall review reports submitted by the RTMBs and evaluate the sufficiency of information provided therein, and identify what further information is needed to substantiate the case or complaint. The DOLE approved a budget allocation in support of the functioning of the Tripartite Validating Teams for the present year. The fund shall cover expenses for the conduct of case conferences, field validation and report consolidation relative to ILO Cases including Case No. 3185.

Comments on specific allegations

1. 841. The Government indicates that the cases of Antonio “Dodong” Petalcorin, Emilio Rivera and Kagi Alimudin Lucman were first brought to the attention of the Department of Labor and Employment (DOLE) through a press statement released by the NCTU and the Alliance of Progressive Labor (APL), together with its affiliates and allied organizations, in 2013. The DOLE then tasked the concerned regional tripartite monitoring bodies (RTMBs) to gather relevant information on the aforementioned cases. The RTMBs have submitted their report and the NTIPC–MB will evaluate the same for actions to be taken. The cases were likewise brought to the attention of the CHR, the PNP and the DOJ, which spearheads the IAC.
2. 842. With regard to the case of Mr Petalcorin, initial information gathered by RTMB Region XI showed that the victim was the President of the NETO, an affiliate of NCTU–APL. A lone gunman killed him on 2 July 2013. Reportedly, Mr Petalcorin had been receiving threatening messages from an alias “Toto” and an alias “Go”. According to the lawyer of the transport groups, the victim attended, prior to the incident, a meeting with other transport leaders where he informed the participants of his disappointment on their franchise application. Information gathered from the PNP in March 2014 disclosed that the victim filed a case for violation of the Anti-Graft and Corruption Practices Act against LTFRB Director Benjamin Go, Carlos “Toto” Cirilo and Annie Cirilo before the Office of the Ombudsman Mindanao docketed under OMB-M-C-13-0045. He also filed an administrative case against Director Go for grave misconduct docketed under OMB-M-A-13-0029.
3. 843. The Government indicates that the information gathered by the CHR and the PNP created doubt as to whether the Petalcorin case would qualify as extrajudicial killings or possibly labour-related. Owing to its sensitivity, the information is being withheld until the NTIPC–MB shall issue its resolution on this case. One of the leads looked into by the PNP was Petalcorin’s alleged receipt of a large sum of money from Public Utility Jeepney (PUJ) Operators of COMVAL Province to facilitate their franchise processes but the same proved futile, since, allegedly, the operators did not know that Petalcorin was already blacklisted by the LTFRB of Region XI to process registration. The Government also states that Rogelio Villafuerte Capistrano III, a witness who is currently detained for murder, has implicated Mr Jay Gascon as the gunman. The suspect is yet to be charged. Despite efforts to convince Mr Petalcorin’s wife and other immediate family members, they still refuse to file a case against the suspect.
4. 844. With regard to the case of Mr Rivera, information received from PNP revealed that both parties (victim and suspect) were fixers of LTFRB. The victim was once a transport leader of MEDTRANSCO but was replaced for neglect of duty/failure to attend General Assembly for 3 consecutive times which is a violation of their by-laws. Reportedly, the victim was known to have many illicit transactions regarding LTFRB franchising. A case for murder was filed against Ricardo Lopez at the City Prosecutor’s Office in Davao City on 30 January 2014. Another case of murder was filed against two suspects, Rey Lauron and Baltazar Mantica, on the same date. However, the murder case filed against Lauron and Mantica, as well as the case for violation of sections 11 and 12 of Act No. 9165 filed against Lopez, were dismissed for lack of probable cause. Nevertheless, Lopez was indicted in another murder case, with docket number CC No. 74-993-13-13, and an alias warrant was issued against him.
5. 845. With regard to the case of Mr Lucman, information received from the PNP in October 2014 states that dialogue with the victim’s family and a possible witness was initiated to obtain updates/information that might be helpful in the investigation but the same remained futile. Reportedly, they migrated to an undisclosed place. Follow-up investigation disclosed that the wife of the victim is in Riyadh, Saudi Arabia, while another victim and a possible witness, Mohmaden Ayunan Aloy, cannot be located.
6. 846. The Government indicates that the three cases were not considered as extrajudicial killings cases based on the AO 35 Operational Guidelines (non-AO 35 cases). The labour sector requested the re-evaluation of the cases of Mr Petalcorin and Mr Lucman. However, the NBI, the PNP and the CHR, which are all part of the IAC’s Technical Working Group, submitted their respective verifications and affirmed that the case of Mr Petalcorin was not an incident of extrajudicial killings based on the A035 Operational Guidelines, while the case of Mr Lucman has been submitted for another tripartite verification. The three cases are handled and investigated through the regular process of criminal investigation and prosecution. Considering their exclusion from the IAC, the RTMB Region XI in Davao City was tasked to gather additional information on these three cases for possible second review by the IAC to benefit from the supervisory and monitoring processes of its special oversight team, and, ultimately, the plenary powers of the high-level IAC itself.
7. 847. As to the alleged physical and non-physical threats against Mr Cirilo and his family, this was not presented to the NTIPC–MB nor to the DOLE. Hence, the RTMB concerned is still in the process of gathering information on the same. However, it has been observed that Mr Cirilo was one of the respondents in the anti-graft and corruption case filed by Mr Petalcorin before the Office of the Ombudsman Mindanao, which was docketed as OMB-M-C-13-0045. Additional updates will be provided as soon as available.

The Committee’s conclusions

1. 848. The Committee notes that, in the present case, the complainants allege the extrajudicial killings of three trade union leaders and denounce the failure of the Government to adequately investigate these cases and bring the perpetrators to justice. The complainants further allege the use of threats and murder attempts against a fourth trade union leader and his family, who have been forced into hiding, and denounces the Government’s failure to adequately investigate this case and protect the victims. The failure to investigate and prosecute in these cases would have reinforced the climate of impunity, violence and insecurity with its damaging effect on the exercise of trade union rights.
2. 849. The Committee notes that the Government recalls the various efforts made, as also acknowledged by the complainants, to ensure the expeditious investigation, prosecution and resolution of pending cases concerning alleged harassment and assassination of trade unionists: (i) the creation of a high-level tripartite monitoring committee within the ambit of the NTIPC, the NTIPC–MB, which has built a comprehensive inventory of 65 cases of extrajudicial killings and attempted murder of trade union leaders and members with identified future actions, and has issued several resolutions to facilitate movement on those cases (evaluation of 28 cases as possibly labour-related and 29 as possibly not labour-related); (ii) the creation in 2014 of the IAC through AO 35, tasked to inventory, prioritize and investigate old and new cases of extrajudicial killings, enforced disappearances, torture and other grave human rights violations (the NTIPC–MB, together with its regional counterparts, is recognized as the source of information, and the social partners were invited to actively participate in the investigation of cases as observers or possible sources of information on labour-related cases); (iii) the cooperation and coordination between prosecutors and law enforcement investigators; (iv) the strengthening of the operational capability of the PNP and the AFP to foster an enabling environment for the enjoyment of constitutionally guaranteed civil liberties and trade union rights through the revision or formulation of guidelines or manuals, conduct of capability-building activities, distribution of advocacy materials, etc.; and (v) most recently, the adoption on 25 May 2016 of TIPC Resolution No. 1, s. 2016, setting up independent and capacitated case-based NTIPC-MB Tripartite Validating Teams (1 DOLE representative, 1 representative from the labour sector and 1 representative from the employers sector) for cases of extrajudicial killing, enforced disappearance, torture, harassment, and other grave violations committed against trade unionists, which require further validation or review of gathered information for it to serve as significant support to case build-up and resolution; the DOLE approved for the present year a budget allocation in support of the functioning of the Tripartite Validating Teams, one for each of the identified ILO Cases. As it also did in the framework of the examination of Case No. 2528, the Committee notes the measures taken by the Government and requests the Government to continue to keep it informed of steps taken and envisaged to ensure a climate of justice and security for trade unionists in the Philippines, and, more specifically, to provide information relating to the establishment of the Tripartite Validating Team for the present case, its functioning and the outcome of its work.
3. 850. The Committee further notes the complainants’ specific allegations according to which: (i) on 28 November 2012, three leaders of transport sector trade unions in Davao City, namely Antonio Petalcorin, Emilio Rivera and Carlos Cirilo, filed a complaint with the Office of the Ombudsman for corruption (taking of bribes for franchise approvals) against the Director of a public authority, the LTFRB, under the direct control of the Department of Transportation and Communications; (ii) on 25 January 2013, Mr Rivera was killed near the LTFRB office, a captured suspect was later released, and no proper police investigation has been conducted to date; (iii) after a number of threatening SMS messages and verbal threats by the LTFRB Director between November 2012 and May 2013, a hand grenade with removed safety pin was discovered at the property of Mr Cirilo on 21 April and on 21 May 2013, respectively; however, police refused to provide a police escort, so that Mr Cirilo subsequently went into hiding; (iv) following a number of death threats, Mr Petalcorin was shot on 2 July 2013 on his way to the LTFRB office, a police investigation identified the killer as a known gun-for-hire assassin without bringing him to justice, and another police investigation into the possible involvement of the LTFRB or its Director was opened but never concluded; (v) to date, the Ombudsman has failed to investigate the case against the LTFRB Director; and (vi) on 18 July 2013, Kagi Alimudin Lucman, a NCTU union official, was shot by two gunmen, and, to date, the perpetrators of the crime have not been identified. The Committee notes that the complainants, recalling that the above incidents are not isolated events and that the Government’s failure to protect the civil liberties of trade unionists has been the subject of comments by the ILO supervisory bodies for many years, denounce: (i) the lack of adequate investigations, prosecutions and independent judicial inquiries into the murders of Emilio Rivera, Antonio Petalcorin and Kagi Alimudin Lucman; and (ii) the failure to adequately investigate the threats against Mr Cirilo and his family as well as the refusal to give him a police escort despite two failed assassination attempts and the aforementioned murders. The Committee notes the complainants’ view that: (i) all trade union leaders were targeted for their trade union activities; (ii) the murders of Mr Rivera and Mr Petalcorin, which amount to extrajudicial political killings, and the threats, pressure and violence against Mr Cirilo and his family are linked to the corruption case against the LTFRB; and (iii) the investigation as well as the Government’s finding, via the Davao City CHR, that the murder of Mr Petalcorin was non-political and unconnected to his anti-corruption advocacy, are inadequate.
4. 851. The Committee notes the Government’s additional indications that: (i) the three murder cases were brought to the attention of the DOLE in 2013, which tasked the RTMBs concerned to gather relevant information, and a report was submitted by the RTMBs to the NTIPC–MB for evaluation of actions to be taken; (ii) the cases were also brought to the attention of the CHR, the PNP and the DOJ, which spearheads the IAC; (iii) regarding the case of Mr Petalcorin, information gathered by the RTMB Region XI and the PNP showed that he had been receiving threatening messages from an alias “Toto” and an alias “Go”; prior to the incident the victim attended a meeting with other transport leaders and expressed his disappointment on their franchise application; the victim had filed a case for violation of the Anti-Graft and Corruption Practices Act against LTFRB Director Benjamin Go, Carlos “Toto” Cirilo and Annie Cirilo before the Office of the Ombudsman, as well as a case for grave misconduct against the Director; information gathered by the CHR and the PNP, which is being withheld until the issuance of the NTIPC–MB resolution, created doubt as to whether the case will qualify as extrajudicial killings or possibly labour-related; one lead of the PNP was that the victim allegedly received a large sum of money from certain operators to facilitate their franchise processes while being blacklisted by LTFRB to process registration; and the suspected gunman, implicated by a witness, is yet to be charged, but Mr Petalcorin’s wife and other immediate family members refuse to file the murder case against him; (iv) regarding the case of Mr Rivera, who was replaced as a transport leader for neglect of duty and purportedly known for many illicit transactions on LTFRB franchising, a case for murder was filed on 30 January 2014 at the City Prosecutor’s Office in Davao City against one suspect; another case of murder was filed against two other suspects and subsequently the case against these two and the initial suspect were dismissed for lack of probable cause, although an arrest warrant has been issued against the first suspect for a subsequent indictment in another murder case; (v) regarding the case of Mr Lucman, according to information from the PNP, dialogue with the victim’s family and a possible witness was initiated to obtain information that might be helpful in the investigation but remained futile as they reportedly migrated to an undisclosed place (follow-up investigation disclosed that his wife is in Saudi Arabia while another victim and possible witness cannot be located); and (vi) regarding the case of Mr Cirilo, the alleged threats were neither presented to the NTIPC–MB nor to the DOLE; the RTMB concerned is still in the process of gathering information; Mr Cirilo was one of the respondents in the anti-graft and corruption case filed by Mr Petalcorin before the Office of the Ombudsman; and additional updates will be provided as soon as available.
5. 852. Recalling that in the framework of Case No. 2528, it has already examined similar allegations of, among other things, the extrajudicial killings of 64 trade unionists, the Committee is bound to note with regret the gravity of the allegations made in this case involving the murders of three trade union leaders and two murder attempts and threats against a fourth trade unionist. In this respect, the Committee must reiterate that freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 43]. The Committee must also emphasize that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest, op. cit., para. 44].
6. 853. The Committee notes that under the Operational Guidelines of AO 35, extrajudicial killings are those cases where: (i) the victim was either a member of, or affiliated with, an organization, to include political, environmental, agrarian, labour or similar causes; or an advocate of the above-named causes; or a media practitioner; or person(s) apparently mistaken or identified to be so; (ii) the victim was targeted and killed because of the actual or perceived membership, advocacy or profession; (iii) the person(s) responsible for the killing is a state agent or non-state agent; and (iv) the method and circumstances of attack reveal a deliberate intent to kill. For purposes of the focused mandate of AO 35, killings related to common criminals and/or the perpetration of their crimes shall be addressed by other appropriate mechanisms within the justice system. The Committee observes that: (i) out of the 65 cases of extrajudicial killings brought before the IAC by the NTIPC–MB, only 11 have been identified as genuine extrajudicial killings covered by AO 35 based on the above criteria and are being investigated by the IAC; (ii) the 54 cases not covered by AO 35, including the cases of Antonio “Dodong” Petalcorin, Emilio Rivera and Kagi Alimudin Lucman, are handled and investigated through the regular process of criminal investigation and prosecution (referral to agencies like the PNP, the NBI and the CHR for further investigation subject to a second review by the technical working group); and (iii) the re-evaluation of the cases of Mr Petalcorin and Mr Lucman requested by the labour sector resulted in: the affirmation by the PNP, the NBI and the CHR that the case of Mr Petalcorin is not an AO 35 case and the resubmission of the case of Mr Lucman for tripartite verification.
7. 854. Regarding the fact that the vast majority of extrajudicial killings before the IAC (including the three murders under examination) were found not to meet the criteria of AO 35, the Committee notes that according to the DOJ, the reasons for the exclusion from AO 35 include insufficiency of evidence and absence of the elements of extrajudicial killings as provided in the AO 35 Operational Guidelines. The Committee observes that, with regard to the above murder cases, in view of the facts presented by the complainants and the Government, most of the AO 35 criteria would appear to be manifestly met, with the exception of the question as to whether the victims were targeted and killed because of the actual or perceived membership, advocacy or profession. Observing that, on one hand, the murder of at least one trade unionist (only Mr Petalcorin according to the Government; Mr Petalcorin and Mr Rivera according to the complainants) occurred against the background of filing a corruption complaint against management which could point to a link of the crime(s) with the exercise of legitimate trade union activities, while on the other hand information gathered by the CHR and the PNP has led to doubts as to the labour-relatedness or extrajudicial nature of one killing, the Committee is of the opinion that the ultimate determination of the motivation for the killing can only be made by a court of law, whereas the threshold for setting out a possible motive related to the deceased’s activism should not require more than a prima facie linking. In the absence of evidence precluding any connection of the crime with the exercise of trade union activities, membership or office, and, to the contrary, in the specific context of the exercise of a legitimate trade union activity such as the filing of a complaint, the Committee considers that the killings of trade union leaders should be able to benefit from the resources and powers of the high-level IAC (composite investigation teams and supervisory and monitoring processes of the special oversight team) in order to ensure effective steps to combat impunity. Welcoming that the RTMB Region XI in Davao City was tasked to gather additional information on the three cases for the second review by the IAC, the Committee trusts that the IAC technical working group will be made aware of the Committee’s conclusions and requests the Government to keep it informed: (i) on the outcome of the second IAC review and, in case of a definitive exclusion from AO 35, on the precise reasons therefore; (ii) on the resolutions issued by the NTIPC concerning the three cases; and (iii) on the result of the tripartite verification of the case of Mr Lucman.
8. 855. Furthermore, the Committee observes with regret that, despite the time that has elapsed since the occurrence of the alleged crimes (more than three to three-and-a-half years), none of the cases has been resolved by bringing to justice and convicting the perpetrators. In particular, the Committee notes that, in the murder case of Mr Petalcorin, one suspect is yet to be charged but Mr Petalcorin’s wife and other immediate family members refuse to file the murder case; that in the murder case of Mr Rivera, the three suspects were released for lack of probable cause; and that in the murder case of Mr Lucman, his family and a possible witness could not be contacted to help in the investigation. The Committee also takes due note that the Government generally admits that progress in investigation is hindered by lack of material witnesses or non-cooperation of victims’ families and relatives or their desistance or disinterest to pursue the case, given the limited capacity concerning forensic evidence and the reliance of the system on witnesses or testimonial evidence. The Committee emphasizes that killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events [see Digest, op. cit., para. 48]. The Committee must reiterate that such crimes, due to their seriousness, should be investigated and, where evidence (not necessarily in the form of witnesses) exists, prosecuted ex officio without delay, i.e. regardless of desistance or disinterest of the parties to pursue the case and even in the absence of a formal criminal complaint being lodged by a victim or an injured party [see Case No. 2528, 364th Report, para. 949]. The Committee stresses once again 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]. The Committee expects the Government to take all necessary measures so as to ensure that the investigation and judicial examination of the above acts of extrajudicial killings advance successfully and without delay so as to identify, bring to trial, punish and convict the guilty parties so as to prevent the repetition of such acts. It requests the Government to keep it informed in this respect.
9. 856. With regard to the alleged failure to provide police escort to Mr Cirilo despite two murder attempts and threats against him, the Committee recalls that facts imputable to individuals bring into play the State’s responsibility owing to the State’s obligation to prevent violations of human rights. Consequently, governments should endeavour to meet their obligations regarding the respect of individual rights and freedoms, as well as their obligation to guarantee the right to life of trade unionists [see Digest, op. cit., para. 47]. The Committee requests the Government to ensure the respect of this principle in the future.
10. 857. Observing that there are divergent views from the petitioners and respondents in the corruption complaint filed against the LTFRB Director and noting that the investigation is still in its early stages (information gathering), the Committee requests the Government and the complainants to provide any additional information at their disposal in this regard, and hopes that the Government will take measures to speed up the investigation and judicial inquiry of this case and keep it informed in this regard.