Informe provisional - Informe núm. 268, Noviembre 1989

1. 482. The Committee has already examined this case and presented interim conclusions to the Governing Body which were approved at its 242nd Session in February 1989 (see 262nd Report, paras. 268 to 310).
2. 483. The Kilusang Mayo Uno (KMU) presented further allegations of violations of trade union rights against the Government of the Philippines in a communication of 1 March and 25 September (received in the ILO on 24 October) 1989. The Government supplied certain observations on the case in communications dated 7 March, 27 April and 2 May 1989.
3. 484. The Philippines have ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Rural Workers' Organisations Convention, 1975 (No. 141).

A. Previous examination of the case

1. 485. When the Committee last examined this case in February 1989, it noted that certain of the legislative aspects of this case had already been considered by the Committee of Experts on the Application of Conventions and Recommendations; it also noted that the Government had not replied in full on certain other aspects of the case.
2. 486. As regards the allegations of human rights violations against trade unionists and union leaders, the Committee deplored the increase in anti-union violence documented by the complainants. The Committee pressed the Government to do all in its power to curb criminality by certain members of the police and armed forces and to adopt vigorous measures to dismantle the various vigilante groups. This was, in fact, the first specific recommendation listed by the Philippines Senate Committee on Justice and Human Rights in its March 1988 report which formed part of the voluminous documentation supplied by the KMU in support of its allegations.
3. 487. In the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee requests the Government to send as soon as possible its detailed comments and further information on the complainants' communications of 8 and 21 November 1988 and 24 January 1989 which concern specific allegations of arrest and murder of officers of the KMU and its affiliates.
   • (b) The Committee also requests the Government to reply on the alleged abuse of Department of Justice Circular No. 10, which, since July 1987, has meant that many accused striking workers have not been able to obtain bail.
   • (c) It urges the Government to do its utmost to facilitate the rapid enactment of the proposals already agreed upon by the tripartite committee set up to revise the labour relations legislation and to give particular attention to the points criticised by the Committee of Experts over the past several years so that full conformity between the labour legislation and the requirements of Convention No. 87 can be achieved.
   • (d) The Committee, like the Committee of Experts, requests the Government to amend section 264(g) of the Labour Code so as to restrict the imposition of compulsory arbitration to strikes in essential services.
   • (e) The Committee deplores the increase in anti-union violence demonstrated by numerous deaths and disappearances documented by the complainants and presses the Government to do all in its power to curb criminality by certain members of the police and armed forces and to adopt vigorous measures to dismantle the vigilante groups.
   • (f) The Committee refers the legislative aspects of this case to the Committee of Experts.

B. Further allegations by one of the complainants

1. 488. In a communication dated 1 March 1989, the KMU reasserts that the present Filipino Government's anti-labour policy was made clear during the President's October 1987 speech to business leaders when she ordered the dismantling of all picket-lines and strict implementation of the previous regime's repressive labour laws. The KMU states that last year it presented more than 1,000 documented cases of union repression to the ILO and that, in 1988, the non-governmental Filipino Commission on Trade Union and Human Rights recorded 325 such cases, in addition to the 1,159 cases documented from 1986 to 1987.
2. 489. According to the KMU, the types of labour repression are becoming more vicious and violent than before, including the systematic mobilising of vigilante and para-military groups for picket-line dispersals, forced disaffiliation and union busting. The KMU alleges that such groups receive official support in connection with the President's policy of "total war on insurgents"; it believes that these groups are part of the "low-intensity conflict" (LIC) strategy directed against not only national liberation movements in the Philippines but also grass-roots progressive organisations like trade unions. In the same vein, the KMU alleges business, military, vigilante and government officials' connivance in endorsing new labour legislation known as the "Herrera Bill". Through these strategies, states the KMU, the Aquino Government hopes to contain labour militancy and thus to ensure unhampered profit-making and exploitation of cheap Filipino labour, in compliance with the dictates of the International Monetary Fund and World Bank.
3. 490. The KMU next gives detailed descriptions of violations of Convention No. 87 in four geographical areas of the country: (1) Luzon, (2) the National Capital Region, (3) Visayas, and (4) Mindanao.
4. 491. As regards Luzon, the KMU alleges an increased militarisation including the rapid emergence of vigilante groups (over 42 in Southern Tagalog and 15 in Central Luzon). Referring to the killing of Mr. M. Roxas (already mentioned in the Committee's last examination of this case, see 262nd Report, paragraph 284), the KMU states that there has in the past been military violence against picket-lines at the Nestlé factory in Laguna with the tacit approval of the Department of Labor. It adds that workers in five factories located in Bagong Bayan, Cavite, have complained against the deployment of soldiers near their workplaces on 22 January 1989; although the batallion said it was there as part of counter-insurgency operations, in a meeting between the military and union leaders on 25 January the workers demanded the pull-out of the soldiers because their presence created tension and a climate of fear. Prior to the arrival of the military, workers reported that the Governor of Cavite had organised a rally around Bagong Bayan denouncing the unions which belong to the KMU as "communist". The KMU also alleges repression involving the military on 1 May 1988 when soldiers from 224th Philippines Constabulary Company opened fire on 7,000 workers celebrating Labor Day at Crossing, Calamba, Laguna. Four workers suffered gunshot wounds while 200 marchers were injured, including Mr. Jaime Pabula, a worker from Sunripe Inc., who was in a serious condition and underwent major surgery. The KMU adds that the Labor Day rally had received a permit from the Mayor of Calamba but the soldiers did not honour it.
5. 492. As regards vigilante repression in Luzon, the KMU alleges that the "Angelino Simbulan Brigade" is suspected of abducting two KMU organisers on 22 August 1988: Mr. Simplicio Anino, a member of the Association of Nationalist and Genuine Labor Organisations (ANGLO-KMU), and Raul Quiroz, General Secretary of Bukluran ng Manggagawa sa Pampanga, were travelling in a passenger jeep when armed men stopped them and took them away. Later, Quiroz was reportedly seen being taken to a house in San Vicente, Angeles City. Residents say that the house is regularly used by armed men believed to be members of vigilante groups operating in the city. The case was also documented by Amnesty International whose report is annexed to the complaint. According to the KMU and the Amnesty report, the Angeles City Mayor, who responded to numerous appeals to locate the two unionists, said that his "efforts have been futile" and that prospects for recovering bodies of missing persons "seem dim". In Bataan, vigilantes operate alongside military forces, and leaders of the Bataan Labor Alliance (AMBA-BALA) have complained about the presence of the 24th Infantry Batallion inside the export processing zones since 22 January 1989. Also, the miners, such as those in the Acoje Mines in Zambales, believe that this military presence is aimed at dissuading workers from joining militant unions like the KMU by using "red-scare" hysteria propagated by the Government in line with its implementation of LIC. Other documentation on trade union repression in Luzon is attached by the KMU to its complaint.
6. 493. As regards the National Capital Region, which is the country's principal centre of trade, commerce and industry as well as the seat of the Government, the KMU states that a large proportion of trade union and human rights violations are recorded there: the victims of abuse monitored in 1988 account for 52 per cent of the total number of victims monitored by the Commission on Trade Union and Human Rights nation-wide. The forms of repression experienced by workers in this area include arrests, deaths in picket-lines, disappearances, militarisation in workers' communities, torture and surveillance. According to the KMU, the most recent case of trade union-related murder was that of Ernesto Tullao who was killed by suspected private company guards on 26 January 1989. Mr. Tullao was the Vice-President of Samahan ng Manggagawa sa Hayahay union in Valenzuela and was very active in mobilising its members to oppose the employer's non-implementation of labour standards. A strike-related killing took place in Novaliches, Quezon City when company guards opened fire on picketing workers at the Rewoodco furniture factory. According to the KMU, one worker, Meliton Peru, was shot in the head and died later, while seven others sustained gunshot wounds. Another strike in the same area at Johannesburg Packaging Corp. was attacked on 6 November 1988 by fully armed members of the Northern Police District, who injured scores of workers; the strikers, instead of being taken to the hospital for first aid and medical attention, were taken to prison where they were gaoled for three to 50 days without charges.
7. 494. According to the KMU, most victims of trade union repression are progressive and militant trade unionists, and, to justify this, the Government has been attempting to link the KMU to the underground revolutionary movement and to the New People's Army (NPA). Numerous organisers and activists of the KMU have been arrested, tortured and harassed on charges ranging from assassination to incitment to sedition. For example, Mr. Ernesto Sarias, organiser of ANGLO-KMU, was taken in on 14 October 1988 by the Philippine Constabulary Investigation Service in Manila and tortured while held incommunicado for two weeks at Camp Crame in Quezon City. Relatives of Mr. Sarias who were able to locate him said that he was tortured to make him admit participation in an alleged NPA ambush of a mayor and a military man in early 1988. Another example is the arrest on 23 November 1988 of a leader of the jeepney drivers, Mr. Deogracias Espiritu, on charges of inciting to sedition, although the charge sheet describes his acts as demanding "the lowering of prices of vehicular parts and prime commodities as well as electric and water bills". A third example is the arrest of Rolando Adriano and Rene Cubilla, both members of Workers' Alliance in Malabon (AMMA-KMU) education committee, who were arrested by the Valenzuela police for carrying "subversive materials, documents and paraphernalia". Cited as subversive materials are the KMU's standard books on Genuine Trade Unionism and other political science books used as educational material, as well as audio-visual educational material including a television set and videocassette recorder and tapes on Nicaragua. During yet another arrest on 27 June 1988, the unionist, Nora Sioco, gave birth prematurely on 30 August due to the mental anguish and unsanitary conditions of the gaol. According to the KMU, before she gave birth, Ms. Sioco felt terribly ill and, despite her pleadings, the police procrastinated before taking her to the hospital: her child died three days later.
8. 495. As regards vigilante repression in the National Capital Region, the KMU states that police and military elements, together with management, have started to recruit workers in five factories to form vigilante groups to harass KMU members active in these factories. This recruitment usually begins by inviting workers to seminars paid for and sanctioned by management. For instance, it was reported in the Aris Clothing Factory that workers who were then being organised by the KMU were required to attend seminars; these seminars turned out to be anti-communist lectures conducted by military men and officials from CAUSA International, a right-wing group actively supporting vigilantes. It alleges that other vigilante groups (namely KADRE, CRUSADERS and GUARDIAN) are being organised at various San Miguel Corporation plants and at B-Meg warehouses.
9. 496. As regards the Visayas region (a cluster of six major islands: Panay, Negros, Cebu, Bohol, Leyte and Samar, whose economy is largely agricultural with sugar and coconut as the primary produce for export and some rich mineral resources), the KMU alleges that for a long period the labour unions have been dominated by "yellow" or conservative unionism. At the beginning of this decade, genuine trade unionism commenced, but this development also marked the beginning of intensified repression in the region that continues to worsen under the Aquino administration. It states that the National Federation of Sugar Workers-Food and General Trades (NFSW-FGT), the Southern Philippines Federation of Labor (SPFL) and the Alliance of Workers in Cebu (AMA-SUGBO), all members of the KMU, are the most affected labour groups. The KMU supplies a report of the Filipino Commission on Trade Union and Human Rights which documents 250 victims of trade union repression in the Visayas in 1988. In addition, cases of repression documented by the NFSW-FGT and other unions show a huge number of workers and their families victimised by militarisation and vigilantism.
10. 497. For example, states the KMU, the labour union in the Atlas Consolidated Mining and Development Corporation in Cebu, Panaghiusa sa Mamumuo sa Atlas (PAMA), an affiliate of SPFL-KMU, has been experiencing extreme repression from both the management and the Government through the use of vigilantes. PAMA recorded a total of 42 cases of repression from January 1988 to January 1989, including four killings, five woundings and strafing and death threats perpetrated by the KADRE vigilante group. Repression of workers in the Atlas Mines intensified when the KMU won a certification election to represent mineworkers after the long years of domination by the Trade Union Congress of the Philippines (TUCP). In view of the significant improvements which PAMA has gained, the KMU believes that what began as a management-labour issue has become a struggle between the organised workers and the Government with the involvement of military, vigilantes and local government officials, and Atlas Mines have become a laboratory for the Government's "total war" policy referred to above.
11. 498. According to the KMU, not a single perpetrator of the crimes committed against the workers had been charged in court despite the presence of incriminating evidence. This is allegedly because the vigilantes operate under the protection of the 347th Philippines Constabulary Company, whose headquarters are inside the Atlas Mines compound. The KMU states that, on 14 February 1989, Mr. Wenifredo Orculla, legal counsel of PAMA, was arrested and charged with "illegal association with the Communist Party". He was released the following day after posting 3,000 pesos (US$150) bail. It adds that a senate committee hearing has confirmed the reports of vigilantes and militarisation in the Atlas Mines. Moreover, the KMU states that, as of mid-September 1988, 183 members and leaders of the NFSW-FGT had been illegally arrested, detained and tortured while four had been killed. Many farm lots (the Federation's projects for its members) had been destroyed and working animals confiscated by the military. Also, members of unions and NFSW-FGT local chapters had been forced to renounce their union membership by the military, para-military groups and thugs employed by the landlords to crush the NFSW-FGT.
12. 499. As regards Mindanao, the KMU cites the 1988 report of the Filipino Commission on Trade Union and Human Rights: victims of repression in Mindanao include 15 workers arrested, one killed on a picket-line and five massacred. Other forms of repression include summary execution, spreading of "anti-communist" hysteria among workers, forced disaffiliation from militant unions, and bombings. For example, in Lapanday Agricultural Development Corporation (a banana-growing plantation located in Davao City), Mr. Danilo Martinez, a union board member of the Lapanday Callawa Workers' Union (LCWU-ANGLO-KMU), was shot dead in his house on 8 September 1988 by two men belonging to the company-hired Philippine Eagle Security Agency. According to the union, the "security force" is composed of fanatical vigilante groups. This was the tenth death since the union was set up in the Corporation in 1982. In addition, on 17 October 1988, another union member, Mr. Sanido Mao, was shot by two members of the plantation security force. He was hit in the armpit but survived after a ten-hour operation in a hospital in Davao. The KMU alleges that the killing and attempted murder came at a time when the term of the LCWU as the bargaining agent of the 1,000-strong union in the Corporation was about to expire last November. However, before a new certification election could be held, 17 fully armed men, apparently belonging to the Philippines Eagle Security Agency, arrived on the plantation. This was followed by anti-communist seminars conducted by the head of the "KADRE" vigilantes, accusing the LCWU-ANGLO-KMU of being a "communist labour front". The vigilantes also figured in violent dispersal of strikes staged by the union in protest over the militarisation of the plantation. The heavy vigilante presence, aside from the batallion of the elite Scout Rangers soldiers, has created tension and a climate of fear among the workers. Subsequent harassment was inflicted on the union members, such as forcing them to sign a waiver denouncing LCWU-ANGLO-KMU in favour of a "KADRE"-controlled union, bombing of their communities, and other forms of physical and psychological torment.
13. 500. According to the KMU, labour leaders in Mindanao cannot exercise their duties freely for fear of being killed, and both local and international investigations have revealed that vigilante groups are supported by local government officials, the military and even the Catholic Church hierarchy. It alleges that, despite the Filipino Senate Committee's March 1988 recommendation that such groups be disbanded throughout the Philippines, the Government, by Executive Order No. 264, has ordered the creation of the Civilian Armed Forces Geographical Unit (CAFGU), which is nothing but a vigilante group with a new name; it reports to the local military detachment wherever it operates.
14. 501. Lastly, the KMU stresses that the victims of and witnesses to these anti-union atrocities are available to give testimony in support of its allegations. It asks for appropriate sanctions against the Government so as to oblige it to comply with the ILO Conventions on freedom of association and the Universal Declaration of Human Rights.
15. 502. In a communication dated 25 September 1989, the KMU sends additional information in support of its various allegations of anti-union repression. The contents of this voluminous communication have been transmitted to the Government for its observations.

C. The Government's further replies

1. 503. In its letter of 7 March 1989, the Government replies to the Kilusang Mayo Uno's communications of 21 November 1988 and 24 January 1989 which contained specific allegations of arrest and murder of officers of the KMU and its affiliates.
2. 504. The Government first denies the claim that there is a systematic repression of trade union rights in the country. The policy of the Government to respect and protect human rights is clear and unequivocal. It states that, while there may be some instances of human rights violations in the country, these are immediately investigated and the perpetrators of such violations are prosecuted.
3. 505. Secondly, on the specific allegations of the KMU, the Government provides the following information on the individuals mentioned.
   • - Mr. Medardo Roda is the President of Pagkakaisa ng mga Tsuper at Operators Nationwide (PISTON), one of several transport organisations in the country. On 22 November 1988, to protest the high prices of essential commodities, his organisation staged a transport strike in Metro Manila. However, his arrest was not due to the strike staged by his organisation but because of his actions during the course of the strike which were tantamount to incitment to sedition, a criminal offence punishable by law. Charges were filed and he was released on bail. His trial is continuing.
   • - Mr. Meliton Roxas was the President of one of the local unions affiliated with the KMU in Nestlé Philippines Inc. It is true that his death came about at a time when his union was engaged in a labour dispute with management. This must have prompted the KMU to believe that management was behind the killing. It points out, however, that aside from the labour dispute between Mr. Roxas' union and management there was also, at the time, a fierce struggle among the local unions for representation of the workers in the firm. Mr. Roxas' death is presently being investigated by the Criminal Investigation Service of the Government. As soon as the results of the investigations are available, the Government will supply a copy of the report.
   • - Mr. Rodrigo Francisco, a local union President of the National Federation of Sugar Workers (NFSW) and Mr. Nestor Barros, an organiser for the same union, were, according to the complainant, killed by CAFGU vigilantes and soldiers in Negros. The Government points out, however, that none of their relatives filed a complaint with any of the law enforcement agencies in the area (courts or the Philippines Commission on Human Rights) nor has there been any action from the KMU and the relatives of the deceased to press for charges against the alleged perpetrators. Nevertheless, the death of the two is being investigated. The Government adds that the mechanism for the prosecution of human rights violations in the country is now well established. However, in order for the Commission to carry out its functions effectively, it is necessary that those whose rights have been allegedly violated co-operate with government agencies.
   • - The massacre of certain families and torture of Mr. Samuel Sabidalas on 23 December 1988. Neither the victims nor their kin have brought these cases to the attention of the Philippines Commission on Human Rights. The alleged massacres escaped the attention of other human rights organisations in the country which have hitherto been vigilant in bringing such incidents to the attention of the Government and non-governmental organisations.
4. 506. The Government states that a careful perusal of the steps it has taken in relation to the above-mentioned cases clearly indicates that protection of human rights is a paramount concern of the present Government. The creation of the Philippines Commission on Human Rights and the special attention being given to human rights cases are clear manifestations of its commitment to uphold and protect human rights. The Government maintains that it has consistently taken the appropriate measures to protect and uphold human rights. All cases of violations of human rights brought to the attention of the Government are expeditiously investigated. The Government has also been undertaking actions that are designed to prevent human rights violations. Recently, even the Legislature investigated the alleged disappearance and deaths of certain individuals.
5. 507. In its communication of 27 April 1989, the Government states that Department of Justice Circular No. 10 (which the KMU alleges has been abused to prevent workers from obtaining bail) is an issuance of general application. It does not apply to a particular sector or discriminate against anyone. The KMU's claim that the said Circular is being used to detain arrested union members is without any basis inasmuch as the bail fixed by the Circular is based on the penalty sought to be imposed. The Government emphasises that the exercise of trade union and workers' rights is constitutionally and legally protected in the Philippines and that persons exercising such rights would not be accused of committing any crime. However, whoever commits a violation of the penal laws - whether they are trade union members, ordinary citizens or government officials - must, upon the filing of criminal complaints, post a bond in accordance with Justice Circular No. 10. The Government supplies a copy of Circular No. 10 of 3 July 1987 (and of Circular No. 10-A of 10 November 1987 which amends it) directing state prosecutors to recommend amounts of bail commensurate with the alleged crime.
6. 508. As regards the legislative situation, the Government reports that in March 1989 Republic Act No. 6715 amending certain provisions of the Labor Code of the Philippines was signed into law and has now taken effect. This law is based on the proposals of the Tripartite Review Committee set up to revise the laws on labour relations. Generally, states the Government, Republic Act No. 6715 assures more protection to workers and unions. The Government lists the significant features of the new law:
   • (a) it requires employers to reinstate dismissed employees whose reinstatement is ordered by the Labor Arbiter even pending appeal to the National Labor Relations Commission or to the Supreme Court;
   • (b) it removes the three-year limit on the amount of back wages to be paid to illegally dismissed employees;
   • (c) it allows employees to join a union even on their first day of employment;
   • (d) it democratises the labour movement by requiring direct election of union officers;
   • (e) it reduces the areas or disputes subject to collective bargaining and transfers disputes over interpretation and implementation of collective agreements and of company personnel policies;
   • (f) it restricts the use of the extraordinary power of the Secretary of Labor and of the President to assume jurisdiction over labour disputes to "industries indispensable to the national interest";
   • (g) it provides for an improved offer balloting whereby the Department of Labor and Employment, in case of a strike or lock-out due to a deadlock in collective bargaining, shall conduct a referendum by secret ballot on the improved offer of the employer or the union as the case may be;
   • (h) it limits the authority of the Secretary of Labor and Employment to inquire into the financial activities of labour organisations.
7. 509. The Government explains further that Act No. 6715 has amended section 263(g) of the Labor Code concerning strikes and lock-outs. The amendment restricts the exercise of the authority to assume jurisdiction over a strike or lock-out, whereas prior to Act No. 6715, the Secretary of Labor and Employment could assume jurisdiction over any labour dispute in an enterprise where the dispute was likely adversely to affect the national interest. The present amendment restricts the exercise of this right to those industries that are "indispensable to the national interest" thereby limiting the industries that will fall under the purview of the said authority. The amendment introduced by Act No. 6715 is a verbatim reproduction of a similar provision in Republic Act No. 875 which had been the law in force in the country when it ratified Convention No. 87. The Government supplies a copy of Act No. 6715.
8. 510. The Government states that, contrary to the allegations of the complainant organisations, it has already instituted several measures to curb criminality by certain members of the police and the armed forces which had resulted in the violation of certain human rights. Notable among these measures are the creation of the Philippines Commission on Human Rights, a constitutional body which is empowered to investigate all kinds of human rights violations and recommend the prosecution of the perpetrators thereof; the creation of several interdepartmental committees that will endeavour to co-ordinate government action in connection with the promotion and recognition of human rights; and the adoption of vigorous measures to stop the proliferation of unsupervised civilian volunteer self-defence groups (copies of the pertinent texts - some of which have been mentioned in the Government's previous replies to Case No. 1444 - are supplied).
9. 511. However, the Government stresses that in order for these institutions to achieve the desired objective and purpose, the co-operation of all sectors concerned should be maintained. It points out that the KMU, despite its numerous allegations and documented complaints of human rights violations, has not yet resorted to the machinery set up by the Government to investigate such violations.
10. 512. Among the attachments the Government supplies as evidence of its action to curb criminality both outside and within the law enforcement agencies, are the following documents:
    • (a) the Memorandum of Agreement of 22 November 1988 between the Department of Labor and Employment, the Department of National Defence (DND) and several labour confederations including the Trade Union Congress of the Philippines (TUCP) but not signed by the KMU. This document was referred to in general terms in the Government's earlier reply to this case (see 262nd Report, paragraph 298) but no copy had been supplied. The Memorandum recognises that a "growing number of labour leaders and organisers (have been) slain and have disappeared for reasons yet to be explained". It purports to create a joint committee among the signatories, inter alia, to investigate cases of deaths, disappearances, harassments of labour leaders and workers, to aid the prosecution of the culprits and to prepare a monthly status report thereon;
    • (b) a copy of Executive Order No. 309 as amended, together with the Rules and Regulations to implement Executive Order No. 309, entitled "Reorganisation of the Peace and Order Council". This Executive Order establishes a four-tier (national, regional, provincial and city municipal) structure for peace and order councils which shall have a mixed composition of government representatives (including the Chairperson of the Philippines Commission on Human Rights) and private citizens representing academic, civil, religious, youth, labour, legal, business and media organisations. Among the tasks of the National Peace and Order Council is that of co-ordinating and monitoring - through regular meetings and reporting - peace and order plans and the organisation of civilian volunteer self-defence organisations. Part XIII of the Rules relates to citizens' volunteer organisations, covering their membership, recruitment process, screening, training and functions (such as intelligence gathering, neighbourhood watches, medical/traffic/emergency assistance);
    • (c) the Manual of Services and Programmes of the Philippines Commission on Human Rights dated May 1988. It provides an account of the functions of the Commission, explains the rationale and objectives of the Commission's various services and programmes (such as hearing of complaints, legal counselling, legal research, assistance to human rights victims, witness protection) and defines the Commission's targets for 1988-89.
11. 513. In its communication of 2 May 1989, the Government states that investigations are continuing with respect to the disappearance of Benjamin Clutario, the trade union leader alleged to have been murdered on 3 July 1988. However, the Government is not yet at liberty to divulge any information on the matter as this may jeopardise the ongoing investigation.

D. The Committee's conclusions

1. 514. The Committee notes that the elements of this case have crystallised into three main areas: (1) specific allegations of arrest, death, attempted murder, disappearance or torture against nine named unionists (the death of Mr. O. Bantayan is dealt with in Case No. 1426 elsewhere in this report) belonging to the KMU or its affiliates and the massacre of six workers; (2) the legislative aspect centering on new amendments to the Labor Code contained in Act No. 6715 of March 1989 (previously referred to as the "Herrera Bill"); (3) the general allegation of repression of the trade union movement, and in particular the KMU and its affiliates, by the judicial and peace-keeping authorities.
2. 515. First, as regards the arrest of Mr. M. Roda in November 1988 on charges of sedition based on his actions during a transport strike in Metro Manila, the Committee notes that, according to the Government, he has been released on bail and his trial is continuing. The Committee welcomes his release and requests the Government to keep it informed of developments in the trial and to supply a copy of the court's final decision when handed down.
3. 516. As regards the specific allegation of deaths, the Committee takes note of the new information supplied by the Government to the effect that Mr. M. Roxas' case is being presently investigated by the Criminal Investigation Service (CIS) and that the Francisco and Barros deaths are "being investigated". The Committee understands that the CIS investigation is being carried out under the aegis of the inquiry made by the Philippines Commission on Human Rights (which the Government referred to in its earlier reply to this case (see 262nd Report, paragraph 300). The Committee recalls that these three deaths occurred in January 1989. In past cases, when disorders have occurred involving loss of life, the Committee has stressed that it is particularly important that an immediate and full investigation by an independent judicial body be carried out. (See Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 78 and 79.) It accordingly trusts that the relevant inquiries will be effected speedily so that the perpetrators of these crimes will be identified, charged, tried and sentenced. It requests the Government to keep it informed of the outcome of the various inquiries, and in particular to supply it with copies of any Commission reports or court decisions.
4. 517. The Committee would likewise request the Government to keep it informed of the investigation into the death of Mr. R. Alberio on 14 November 1988 on Cebu Island, to which the Government had referred in its earlier reply to this case (see 262nd Report, para. 300), but concerning which no further news has been forthcoming. It makes the same request with regard to the ongoing investigation into the disappearance of Mr. B. Clutario on 3 July 1988.
5. 518. Still on this first major aspect of the case, the Committee notes with regret that the Government has given scant or no information on certain events detailed by the complainants. For example, the allegation that Mr. S. Sabidalas was tortured on 23 December 1988 is not denied, but is indirectly put in doubt since no human rights organisations in the Philippines took up the matter. No comment is made by the Government regarding the attempted murder of Mr. E.M. Cueva on 14 November 1988, the same night that Mr. Alberio was killed. Both men were union activists at Atlas Consolidated Mining and Development Corporation, so information on Mr. Cueva's case would presumably not be difficult to obtain. The Committee accordingly asks the Government to keep it informed of any inquiries undertaken or reports made concerning Mr. Sabidalas and Mr. Cueva. In addition, no information has been furnished by the Government on the alleged massacre of six named workers in Mendiola on 22 January 1987 or on the alleged "Tadtad" murder of Mr. P. Alderite in Davao City on 28 April 1987. While recognising that there was not a great deal of background evidence describing these events in the original complaint and while aware that they date back some time, the Committee would recall that the important union positions held by some of the individuals involved as well the publicity given to these various incidents at the time should make investigation of the allegations a crucial priority for the Government. The Committee accordingly urges the Government to initiate investigations into the above-mentioned deaths and to send to it, as rapidly as possible, the findings of the relevant inquiries.
6. 519. The Committee notes that the Government has not replied in full to the Kilusang Mayo Uno's further allegations contained in its voluminous communication dated 1 March 1989. The Committee accordingly requests the Government to supply its observations on the following specific incidents: the abduction on 22 August 1988 of Mr. S. Anino and Mr. R. Quiroz, both KMU organisers in Luzon; the killing of labour activist Mr. E. Tullao on 26 January 1989 in the National Capital Region; the death of picketing worker Mr. M. Peru in Quezon City; the detention and torture of Mr. E. Sarias on 14 October 1988 at Camp Crame; the arrests in November 1988 of Mr. D. Espiritu, Mr. R. Adriano and Mr. R. Cubilla; the murder of Mr. D. Martinez on 8 September 1988 in Davao City; the attempted murder of Mr. S. Mao on 17 October 1988 also in Davao City.
7. 520. The second major aspect of this case centres on the recent amendments to the Labor Code. While noting that the recent passage of Act No. 6715 prevented it being examined at the most recent (March 1989) Session of the ILO Committee of Experts on the Application of Conventions and Recommendations, that Committee only being able to note with interest that the Herrera Bill was before the Parliament and was based on tripartite discussions, the Committee is pleased to note that certain of its provisions meet the Committee's earlier - and repeated - criticisms of the Code.
8. 521. On the one hand, the Committee notes with interest that section 274 of the Code is amended to restrict the visitational powers of Ministry of Labor authorities and that section 272 has dropped the penalty of deportation of foreign workers who violate the Act.
9. 522. It also notes that some progress has been made in granting freedom of association to aliens holding valid work permits being nationals of a country giving reciprocal rights to Filipino workers, although this reciprocity requirement is not acceptable under Article 2 of Convention No. 87 (see General Survey of the Committee of Experts on the Application of Conventions and Recommendations on freedom of association and collective bargaining, 1983, paras. 96 and 97). It accordingly requests the Government to remove this condition on the freedom of association of foreign workers.
10. 523. On the other hand, the Committee observes - as did the Committee of Experts when examining the Act in its draft form - that several major discrepancies with the obligations laid down in Convention No. 87, and its Articles 2, 3 and 5 in particular, are not eliminated in the new legislation. It is particularly concerned about section 164 of the Penal Code. This relates to illegal strikes and imposes sentences of penal servitude for life for organisers or leaders and imprisonment for participation in strike pickets deemed to be for propaganda purposes against the Government, and was not affected by the amendments to the Labor Code.
11. 524. In addition, the Committee notes that the new Act amends section 263(g) (formerly section 264(g)) concerning strikes and lock-outs. It redefines the circumstances in which the Secretary of Labor may assume jurisdiction, thus terminating strike action. The amended provision now reads:
    • (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lock-out in an industry indispensable to the national interest, the Secretary may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same.
      • In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce ...
      • The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any labor dispute in such industries in order to settle or terminate the same.
    • 525. Given that the new definition of industries in which strike action can be banned still does not conform to the Committee of Experts' definition of essential services in which strikes can be prohibited (namely, those whose interruption would endanger the life, personal safety or health of the whole or part of the population) the Committee can only request the Government, through the National Tripartite Review Committee, to consider amending the Labour Code so as to bring it into conformity with the standards in this field. The Committee considers such amendment particularly appropriate in view of the proviso which is retained in section 263(g) giving the chief executive authority complete discretion to determine any industries as being "in his opinion, (...) indispensable to the national interest", and therefore subject to the strike ban.
12. 526. The Committee refers the legislative aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations in the context of its continuing review of the Philippines' observance of the provisions of Convention No. 87, which was ratified by that country in 1953.
13. 527. The third major aspect of this case as a whole concerns the general allegation of massive and brutal repression of the trade union movement, and in particular of the KMU and its affiliates. One means of repression is allegedly the abuse of Department of Justice Circular No. 10 to refuse bail for accused striking workers. The Committee notes the Government's reply to the effect that this is a general issuance not directed at unionists, that it provides for bail to be fixed in amounts commensurate with the penalty for the suspected crime and that any citizen, irrespective of whether union member or not, must abide by the judicial procedures when a criminal complaint is filed. While noting that the complainant did not specify individual cases of discriminatory or abusive implementation of this Circular, the Committee must maintain vigilance in situations where unionists or workers involved in protest actions face detention for the mere fact of being unable to raise bail in the amount fixed by an administrative circular. So as to be able to examine this allegation in full knowledge of the facts, the Committee requests the Government to supply information on the frequency with which the maximum amount of bail is set and is - or is not - paid.
14. 528. The Committee further notes that a specific allegation of repression is contained in the KMU's most recent communication on this case, namely police violence against workers celebrating May Day 1988 in Laguna. Regretting that the Government has made no comment on this shooting - during the rally for which a permit had been issued by the Mayor of Calamba but which was not respected by the Philippines Constabulary - the Committee reguests the Government to inform it of any inquiries into the police violence during this authorised May Day celebration. It draws the Government's attention in this respect to the principle that the holding of public meetings and the voicing of demands of a social and economic nature on the occasion of May Day are traditional forms of trade union action (see Digest of decisions, para. 156).
15. 529. In addition, the Committee notes that the KMU documents its allegation of union repression by citing the disturbances in the Atlas Mining Corporation, particularly after the KMU won a certification election to represent the mineworkers there. The Committee regrets that the Government has made no specific comment on the alleged violence by the KADRE vigilante group - protected by a Philippines policy company - from January 1988 to January 1989 which includes four killings, five woundings and numerous death threats and harassments. It requests a reply concerning the trial following the arrest on 14 February 1989, of Mr. W. Orculla, legal counsel of the KMU affiliate at Altes Mines, on charges of illegal association with the Communist Party (for further examination of the trade union situation in the Visayas region, Negros in particular, see Case No. 1426 in the present report).
16. 530. Further documentation from the KMU on union repression claims that Executive Order No. 264 creating the Civilian Armed Forces Geographical Unit (CAFGU) has led merely to the creation of yet another officially condoned vigilante group. The Committee notes a direct contradiction in the descriptions given of CAFGU, since the Government in its earlier reply on this case (see 262nd Report, paragraph 298) refers to the creation of that Unit in an effort to stop the proliferation of unsupervised civilian self-defence organisations. The Committee notes with interest that, in addition to the Philippines Commission on Human Rights (which can only act on complaints from victims or their survivors), the November 1988 Memorandum of Agreement sets up a joint labour/law enforcement agencies committee to investigate cases of deaths, disappearance and harassment of labour leaders and workers and that Executive Order No. 309 as amended entrusts "peace and order councils" at various levels to co-ordinate and monitor the operation of civilian volunteer self-defence organisations.
17. 531. If these legal and institutional developments are added to the information already provided by the Government (see 262nd Report, paragraph 297) concerning the October 1987 guide-lines issued to ensure respect for the law and human rights within the volunteer self-defence groups, the Committee believes that the structure now exists for rapid and thorough investigation of all complaints of violations of human rights of trade unionists. It therefore would appreciate receiving from the Government copies of the reports which these various national monitoring bodies are bound, by their founding charters, to produce regularly. Only in this way will the Committee have detailed and up-to-date information on the efficacy of these bodies, and be in a position to judge whether they are fulfilling their role in practice.
18. 532. In this respect the Committee must stress that, in view of the general recognition in the Philippines (evidenced by the Senate Committee's report referred to in paragraph 309 of the 262nd Report) of the human rights violations committed against labour leaders by the various vigilante groups, the Government must take firm and urgent measures to dismantle such groups. It thus encourages the Government in its efforts to abide by this recommendation which its own Senate Committee made in 1988.
19. 533. The Committee notes that the KMU's most recent communication of 25 September 1989 has only recently been transmitted to the Government for its comments. It accordingly adjourns its examination of this new information while awaiting the Government's reply thereon, and in the meantime asks the Government to send its observations as rapidly as possible.