Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 272, Juin 1990

1. 197. The Commitee examined this case at its meetings of November 1987, May 1988 and February and May 1989, presenting an interim report to the Governing Body on each occasion (see 253rd Report, paras. 392-424, 256th Report, paras. 361-382, 262nd Report, paras. 245-267 and 265th Report, paras. 443-456, approved by the Governing Body at its 238th, 240th, 242nd and 243rd Sessions (November 1987, May-June 1988, February-March 1989 and May 1989)). Subsequently, the IOE sent new allegations in communications of 12 July and 3 August 1989. The previous Government sent certain observations in a communication of 26 October 1989. The new Government sent its observations in communications of 7 February and 25 April 1990.
2. 198. Panama has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 199. When the Committee examined this case at its May 1989 meeting, it formulated the following recommendations on the outstanding allegations (see 265th Report, para. 456):
   • (a) The Committee notes with concern that since its last meeting there have been no basic improvements in the situation of employers' organisations and their leaders in Panama, as evidenced by the prosecution of ten employers' leaders, the continuing occupation of the premises of the Chamber of Commerce and the Trade Union of Industrialists of Panama and the closure of major communications media used regularly by the employers' organisations.
   • (b) The Committee deplores the fact that the Government has failed to provide detailed information of these specific acts which, in each case, led to the trials pending against nine of the ten employers' leaders (Eduardo Vallarino, Aurelio Barria, Gilberto Mallol, César Tribaldos, Rafael Zuñiga, Roberto Brenes, Carlos Ernesto de la Lastra, Kaiser Dominador Bazán and Alberto Boyd), and on the stage reached in the corresponding proceedings. It presses the Government to send this information as a matter of urgency and to send it copies of the publications (subversive, according to the Government) produced and found at the enterprise of the employer's leader Alberto Conte and provide information on the stage reached in the proceedings against this leader. It stresses that respect for due process of law should not preclude a fair and rapid trial.
   • (c) The Committee urges the Government once again to take the necessary steps to ensure that the continuing occupation of the premises of the Chamber of Commerce and the Trade Union of Industrialists of Panama ends immediately.
   • (d) The Committee notes that major communications media have been closed down for months and stresses that the right of workers' and employers' organisations to express their views in the press or through other media is one of the essential elements of freedom of association; consequently, the authorities should refrain from unduly impeding its lawful exercise. The Committee once again expresses the hope that the communications media now closed may recommence normal operations in the very near future and requests the Government to keep it informed of any further developments in this respect.
   • (e) The Committee regrets that the employers' leader Roberto Brenes remained detained for 12 hours. As no charges were brought against him, the Committee stresses that measures of this type infringe the rights contained in Convention No. 87 and may create an atmosphere of intimidation and fear prejudicial to the normal development of occupational organisations' activities.
   • (f) The Committee requests the Government once again to send its observations on the allegations concerning the arrest and fining of the journalist Alcides Rodríguez and the violence against the leaders of the Chamber of Commerce and their enterprises.
2. 200. In its February 1990 report, the Committee noted that the new Government had sent certain observations concerning the case in a communication of 7 February 1990, promising to send additional information and stating that the destruction of certain public offices during the fall of the previous administration, had made it impossible to obtain all the information requested; the Committee stated that it hoped to receive such information as soon as possible (see 270th Report, para. 8).

B. New allegations

1. 201. The International Organisation of Employers (IOE) alleges in its communication of 12 July 1989 that section 1 of Decree No. 13, promulgated on 16 May 1989, obliges a large number of enterprises which do not enjoy monopolies of any kind, and whose activities may not be characterised as essential but only as activities of "public interest", to maintain their services to the public without interruption, unless otherwise authorised by law or by the competent authority, during normal working hours or during such hours agreed in employment contracts, collective agreements or internal regulations. Non-observance is punished by sanctions imposed by officials of the Ministry of Trade on the basis of denunciations made by inspectors of the Ministry of Labour, and may range from the suspension to the definitive termination of the enterprise's licence. This broad regulatory provision undermines the rights of both workers and employers to suspend their occupational activities in certain circumstances, such as disputes, with a view to reaching a peaceful settlement of their social and economic problems.
2. 202. The IOE adds that, in implementing this Decree, labour inspectors, acting on the instructions of the Ministry of Labour, have made denunciations before the Ministry of Trade against a number of enterprises on the grounds that they infringed the Labour Code by temporarily closing their operations on 17 May 1989 in response to a call for lock-outs to protest the constant infringement of the civil liberties of organisations of employers in Panama and of their leaders. In support of its charges, the IOE sends two notices of sanctions issued on 22 May 1989 against the "Restaurante Trapiche" and "McDonald's" enterprises.
3. 203. In its communication of 3 August 1989, the IOE refers to two new instances of sanctions (against the Dairy Queen and Kentucky S.A. enterprises) for the suspension of their activities on 17 May 1989, on the grounds that such suspensions infringed section 128 of the Labour Code.

C. The reply of the previous Government

1. 204. In its communication of 26 October 1989, the previous Government states that the premises of the Chamber of Commerce and the Trade Union of Industrialists of Panama are still in the hands of the Public Ministry, as is the property contained therein; since these premises were searched in connection with investigations carried out by agents of the Ministry, their return is subject to the judicial decisions in the corresponding criminal proceedings. As regards the swiftness of these proceedings, the Public Prosecutor has stated that "it would seem that the accused, rather than the Public Ministry, have an interest in delaying the conclusion of these proceedings, thereby forestalling a decision which would bring the proceedings to an end and determine their legal status, as reflected by the great number of appeals, incidents, requests for permits, requests for bail, etc., which have been filed in connection with each of the proceedings involving persons holding office in employers' organisations".
2. 205. As regards the communications media to which the Committee on Freedom of Association has referred, they are subject to the final decision reached in the corresponding criminal proceedings, inasmuch as they were seized in connection therewith. This, however, should in no way be seen as an effort to undermine or prevent the development of the activities of employers' organisations, which continue to operate in all respects. This is evidenced by information which is published or broadcast daily concerning meetings, the election of executives and other activities for which these organisations were set up.
3. 206. As regards developments in the trials of ten employers' leaders, the Government recalls that the Public Prosecutor reported that, on 22 December 1987, Decree No. 91 granted a pardon to a number of persons who were associated with the commission of common law and political crimes. The persons who benefited from these pardons included Aurelio Antonio Barria Mock, Eduardo Vallarino Arjona, Gilberto Mallot Tamayo, César Augusto Tribaldos, Rafael Zuñiga Brid and Carlos E. González de la Lastra. Subsequently, following new attacks on the State's internal security, the Eighth Prosecutor of the First Judicial Circuit of Panama requested unsworn statements from the leaders of the so-called "National Civil Crusade", including Carlos Ernesto González de la Lastra and Alberto Boyd, "who were found guilty of having participated directly in the crime, and were detained in accordance with procedural regulations". Messrs. Boyd and González de la Lastra were subsequently released on bail. Mr. de la Lastra requested permission to leave the country temporarily, while Mr. Boyd is free on bond and free to go about his personal and occupational activities.
4. 207. The Government adds that Messrs. Vallarino and Mallot posted bond so as not to be detained during the investigations being carried out by the First Prosecutor of the First Judicial Circuit against a group of persons charged with crimes undermining the State's internal security. According to the Prosecutor, "although the examining magistrate has not ordered their detention, other members of the employers' organisation have referred in their unsworn statements to the direct participation of Messrs. Vallarino and Mallot in these criminal activities". Mr. Aurelio Barria finds himself in similar circumstances. Mr. Kaiser Dominador Bazán has been charged by the Deputy Prosecutor of the Attorney General's Department with crimes against the State and the usurpation of public functions; he is free on bail and has left the country on several occasions after having obtained the corresponding exit permits. Moreover, the Prosecutor's report states that "Mr. Roberto González Brenes, while free on bail, engaged in acts which undermined the State's internal security and the national economy; these acts were in no way related to legitimate activities as a member of an employers' organisation. His brief detention for questioning concerning his commission of crimes was carried out without any infringement of the procedural guarantees established in Panamanian legislation." As regards the situation of Mr. Alberto Conte, he was ordered to be released on bail by the prosecutor responsible for the corresponding investigation on 23 December 1988 for humanitarian reasons. This, however, in no way implied that the charges against him had been dropped or that the criminal proceedings brought against him had been concluded. Nevertheless, Mr. Conte proceeded to leave the country without the appropriate judicial authorisation, which led the examining magistrate to maintain the detention order against him.
5. 208. As regards the case of Mr. Alcibíades Rodríguez, the Ministry of Government and Justice, which is responsible for applying legal provisions on the communications media, states that this person is not registered with the Technical Journalism Council as a journalist. Mr. Rodríguez is registered with the Ministry of Government and Justice's National Media Directorate, as an announcer, but his licence expired on 17 July 1989. As regards the allegations that Mr. Rodríguez was detained and fined, the Public Prosecutor has looked into the case and has not found any evidence that this person has been detained or fined for any offence.
6. 209. As regards the complaint concerning the application of Decree No. 13 against the Restaurante Trapiche and McDonald's enterprises and others, the Government states that there are no charges or fines against these enterprises on record with the Ministry of Labour and Social Welfare because of any interruption of operations on 17 May 1989. Should such charges be brought against these enterprises, the Government would comply with the procedure established for such purposes in accordance with section 27 of Act 53 of 1975, under which the party concerned is entitled to due process. Nevertheless, the Government states that the Ministry of Trade reported in writing that it imposed sanctions on enterprises which distribute food and medicine, as well as on those engaged in public activities, which suspended their operations following the promulgation of the Decree, and specifically on 17 May, following the identification of the same by the inspectors of the Licensing Department of the General Directorate of Internal Trade. All resolutions were notified personally to the parties concerned; some of these resolutions have been appealed, and the cases concerned will be handled in accordance with the law.
7. 210. As regards the Dairy Queen and Kentucky S.A. enterprises, the Government states that the charges filed by the General Labour Inspectorate of Panama against them, owing to their suspension of activities on 17 May 1989, are based on valid legal grounds owing to the infraction by these enterprises of the provisions of section 128(1) of the Labour Code. This section requires employers "to provide the worker with a real and effective occupation, conforming to the agreed conditions". The charges brought by the official of the Labour Inspectorate comply with legal requirements as defined in section 139 of the Labour Code concerning the imposition of sanctions for the infraction of employers' obligations, and with section 27 of Act 53 of 1975, which outlines all procedures in the event of the violation of any labour standard.

D. The reply of the present Government

1. 211. The present Government states in its communications of 7 February and 25 April 1990 that, as is widely known, the Democratic Government for National Reconstruction and Reconciliation was installed in Panama on 20 December 1989, under the presidency of Mr. Guillermo Endara Galimany, who was elected by the Panamanian people in the popular elections held on 7 May 1989. The present Government has undertaken publicly within the country and before the nations of the international community to respect the fundamental guarantees set forth in the nation's Constitution, and in particular those found in Title III, Chapter I, which enshrine the full exercise of the individual and social rights and obligations of Panamanian citizens. In fulfilment of this commitment, the national Government has made great efforts to correct the mistakes of the former regime. Consequently, the causes which led to the complaints contained in the cases now before the Committee on Freedom of Association disappeared once the present Government took office.
2. 212. The Government states that the premises of the Chamber of Commerce, Industry and Agriculture of Panama were returned to its members on 27 December 1989. Likewise, all social communications media, which were regularly used by organisations of employers and which had been closed, have been opened and put back into service.
3. 213. As regards the ten employers' leaders who were detained or tried, the Government states that they are free and enjoy fully their civil rights; those who were exiled have returned to the country (as in the case of Messrs. Roberto Brenes and Alberto Conte).
4. 214. As regards the case of Mr. Alberto Conte, the Government states that the Fourth Prosecutor of the First Judicial Circuit of Panama ordered the return of confiscated property and rescinded the order which had closed down the AB CONTE enterprise, belonging to Mr. Conte.
5. 215. As regards the sanctions which the dictatorship had imposed on the El Trapiche, McDonald's, Kentucky and Dairy Queen enterprises, the Government states that the same have been revoked by the Ministry of Trade and Industry by means of ministerial resolutions. As regards Decree No. 13 of 16 May 1989, issued by the previous regime, the Government states that the Ministry of Trade and Industry has been requested to study the possibility of its repeal.
6. 216. In the specific case of the announcer Alcibíades Rodríguez, the Government states that the Ministry of Government and Justice has reported that its files do not show that he has been denied the renewal of his announcer's licence, which expired on 17 July 1989. Mr. Rodríguez may request the renewal of his licence before the appropriate authorities if he so wishes (the nation's Attorney General has reported that there are no criminal charges against this journalist in the Public Ministry).

E. The Committee's conclusions

1. 217. The Committee takes note of the installation of a new Government in Panama on 20 December 1989. The Committee notes with satisfaction that the present Government has taken a series of measures which have put an end to extremely serious violations of Conventions Nos. 87 and 98, namely: the occupation of the Chamber of Commerce and the Trade Union of Industrialists of Panama, the closing of important communications media used regularly by the organisations of employers, as well as the detention and proceedings against employers' leaders (who are now free and fully enjoy their civil rights).
2. 218. Lastly, the Committee notes that the Ministry of Trade and Industry has lifted the sanctions which the previous Government had imposed on certain enterprises for the suspension of their activities (El Trapiche, McDonald's, Kentucky S.A. and Dairy Queen). It also notes that the Government has instructed the Ministry of Trade and Industry to investigate the possibility of repealing Decree No. 13 of 16 May 1989 (which allows the Government to oblige certain "public utilities" to remain operational, without interruption, under pain of sanctions), which was used to violate the rights of employers' organisations. Finally, it observes that there are no criminal proceedings pending against the journalist Alcibíades Rodríguez, who is free to request the renewal of his announcer's licence.