Individual Case (CAS) - Discussion: 1990, Publication: 77th ILC session (1990)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Colombia (Ratification: 1976)

A Government representative stated that his Government, in order to fulfil its obligations with regard to the ILO, was undertaking a total reform of labour legislation, since the present Labour Code had been in force since 1948. He recalled that specialists had been entrusted with and had completed the reform of labour institutions dealing with both individual rights and collective rights in the Labour Code. In relation to the comments of the Committee of Experts, he pointed out that last year the Government, with the support of the Ministry staff, Colombian experts and the ILO through PREALC, had brought about a reform in the structure of the Ministry of Labour and Social Security. In particular, there was going to be a reorganisation of the Trade Union Register because there had been many complaints, a fact which had been noted in the Committee of Experts' report relating to registration of trade unions and their authorisation. The figures listed in the report was no longer up to date because recently over 200 unions had been registered. However, the basic problem was related to the legal personality of trade unions. The legal personality of more than 6,000 organisations had been recognised, but more than 4,000 were inactive according to the latest trade union census. In addition, in relation to legal personality he stated that it could not be suspended except by using a dearly set out procedure. As for the right to collective bargaining, he noted the large number of collective agreements concluded in recent years and the reduction in the number of strikes, which showed that there was free negotiation of collective agreements between the parties concerned and with the co-ordination and participation of the Ministry when necessary. Once the new structure of the Ministry of Labour was operational with a department that would replace the earlier Trade Union Registry, this would enable compliance with Acts Nos. 26 and 27, which implemented the provisions of this and other ratified Conventions.

A Workers' member of the United Kingdom recalled that, following the lengthy discussion last year concerning Colombia's application of this Convention, this Committee had mentioned this case in a special paragraph. He also recalled that this Committee had considered the technical questions raised by the Committee of Experts and had discussed in depth with the Government representative the cases on Colombia which had been considered by the Committee of Freedom of Association. In its conclusions the present Committee had requested the Government to "take all the necessary measures to bring the law and practice fully into line with the requirements of the Convention, inter alia, in attempting to reintroduce a situation propitious to the full exercise of civil liberties and accordingly the freedom of association and to guarantee the physical safety of trade unionists." The Committee concluded that it hoped that the Government "would be able to report next year on substantial progress achieved in this field." The speaker expressed his disappointment that the Government appeared to have failed to deal with this. Nothing that had been said led him to believe that there had been any material change in the situation regarding the protection of trade unionists in Colombia. Last year he had referred to information provided by Amnesty International concerning trade unionists and he could mention up-to-date information with regard to the death threats and killings of trade unionists. The Government representative had given statistics about the reduction in the number of strikes over the past few years. Although such statistics were interesting, the speaker was more interested in knowing the number of trade unionists who had been killed or who had disappeared over the past five years, in order to see whether there was any material reduction. Apparently, this was not the case. Scores of union leaders, labour lawyers and trade union legal advisers had received death threats at the hands of paramilitary death squads. Many of those who had persisted in their legitimate trade union activities had been killed or had disappeared, apparently after detention by the security forces or civilians working with them in the guise of the so-called "death squads". On repeated occasions, senior officers of the armed forces and civilian authorities had publicly affirmed that the trade union movement had been infiltrated by left-wing subversive movements; this was the excuses they used. They had accused individual union leaders and activists of direct links with guerilla movements. As a result of those unproven accusations, in several cases known to the speaker such accusations were followed by killings carried out in the name of paramilitary death squads comprised of persons identified with the security forces. The banana-growing region had been particularly affected by a systematic campaign of intimidation of union members that included arbitrary arrests, disappearances and politically motivated killings. Again, paramilitary forces or even gunmen hired by local landowners had repeatedly carried out most of the killings in this region. However, accordingly to available evidence, the army and the police appeared to be directly responsible for some of the extra-judicial executions. The Government had continued to affirm its commitment to safeguard freedom of human rights. While these statements were welcome, what was really needed was action. Any measures designed to safeguard the basic human rights were welcome but speaking from the workers' point of view, which indeed might also be the view of this Committee, the speaker felt that more immediate and effective measures were required in order to halt human rights violations. He urged the Colombian authorities to carry out thorough and impartial investigations and to ensure that those responsible for human rights violations were brought to justice. In most instance, the civil and judicial authorities had initiated the proceedings required by the law following reports of extra-judicial executions and disappearances. But the investigations had only exceptionally resulted in prosecutions and convictions. Despite the efforts of the Prosecutor General's and the civil judiciary to identify and prosecute those responsible for human rights violations, the extra-judicial executions of trade unionists, torture and disappearances continued to be committed with virtual impunity. In the majority of cases where the investigations had resulted in the identification of armed forces personnel implicated in politically motivated abuses, jurisdiction had been passed to the military courts. These courts had failed to conduct impartial proceedings or to hold the police and the military personnel criminally liable for their violent crimes against the trade unionists. The continued failure of the judicial authorities to prosecute and convict members of the armed forces responsible for these extra-judicial executions, torture and disappearances of trade unionists considerably undermined confidence in the ability of the Government to handle the serious crisis that now existed in Colombia for human rights and freedom of association. The speaker expressed the hope that the comments made during this debate would be drawn to the attention of the Committee of Experts. Likewise, he hoped that the Government representatives of Colombia would draw the attention of the new President and the new Congress, which would be taking office in July 1990, to everything which had been said in this debate so that they would be in a position to redress this situation, which previous government had failed to do.

A Workers' member of Colombia considered that the explanation and information provided by the Government representative were not acceptable. He pointed out that violations of this Convention in his country were more and more flagrant. The right to organise was not being respected, and the most recent example of this was the large number of organisations which had disappeared before being established. Save for exceptional cases, workers' organisations had to be set up clandestinely so as to avoid early dismissal of those who wished to set them up; then there was the difficulty of achieving recognition, although by the time the trade union had received this legal status, the union often no longer existed in reality because many of its members had been dismissed. The figures given by the Government representative had to be supplemented by an explanation of why unions had ceased to operate and why there were a number of legal organisations which no longer had any members. Moreover, in October 1988 following the start of a national strike, the Government adopted a series of decrees against the trade union movement including threats of imprisonment and dismissal for those participating. This type of coercive measure was hard to understand in a State calling itself democratic and purporting to enjoy a state of law. According to the speaker it was important to stress the problem of physical violence carried out by terrorists, drug-traffickers, military personnel and para-military groups who assassinated indiscrimately, or carried out by guerrilla groups. That was not perhaps the greatest type of violence suffered by workers: children and old people were abandoned to their fate in the streets; hunger was common in thousands of homes in Colombia; there was the violence of unemployment; the violence of thousands of children dying from hunger or disease; and the violence of increasing social marginalisation, and the terrible level of poverty. It was customary to speak of direct, physical violence and to use that as a shield to obscure the enormous social decomposition that was a reality in the country. The Government should commit itself to ensure compliance with this Convention.

A Workers' member of Spain noted that the basic problem was not the speeding up of administrative procedures required for granting legal personality to trade unions, but rather that trade unions should have a right to set themselves up, draft their own statutes and elect their leaders without authorisation or administrative control and without the presence of government representatives, and to be recognised as a legal entity according to judicial rather than administrative procedures. He hoped that the Government representative could distinguish between administrative and judicial control. He hoped that it was clear to the Committee that there was no greater infringement of trade union freedom than the massive assassination of trade unionists. In that respect, he referred to a report of Amnesty International in April 1990, which found that since November 1986 more than 300 members of the Central Unica de Trabajadores (CUT) had been assassinated for political reasons. The same report indicated that a prominent trade union activist, Sebastian Mosquera, had been assassinated by armed men in the region of Uraba on 9 September 1989. The same report told of the assassination of four other persons, Silvia Margarita Duzan, JosL Vargas, Miguel Barajas and Saúl Castaneda, in the region of Cimitarra, department of Santander, on 26 February 1990. Also two presidential candidates had been assassinated this year. A few days ago, the speaker had received the Secretary-General of the CUT, Mr. Garzon, who was living exiled because Amnesty International had discovered a conspiracy to assassinate him. Amnesty International had reached the conclusion that human rights violation on a massive scale in Colombia was not something that was merely being tolerated by the armed forces; it was in fact the result of a deliberate policy to carry out political assassinations. For these reasons, he felt that the case of Colombia should be placed at least in a special paragraph, if not to be singled out as a case of serious and continued non-compliance.

A Workers' member of Colombia stated that this case was a dramatic one, and recounted that the Confederation, of which she was the Secretary-General (CUT), had lost 381 members by assassination in the CUT's three years of existence. In 1990, between January and May, more than 40 people had been murdered. In the first week of the Conference she had been unable to leave the country because seven workers had been assassinated, two in the banana-growing area, one in the petroleum industry, two university professors and two secondary school teachers, all of them affiliated to trade unions affiliated to the CUT. This meant that she and her colleague, the President of the CUT, were among the survivors. The CUT had paid a heavy price in blood; she also mentioned the assassination of the Secretary-General of the Confederation of Workers of Colombia (CTC), Mr. Victor Almanza, in the town of Pereyra. There was a need to explain to the international community that her country had been in a state of emergency for over 40 years, with very few exceptions. Consequently, when the workers decreed a national work stoppage, it was handled by the Government as a public law and order problem and not as labour conflict, and the army could then enter company premises, factories, and any other place. It was important to take into account the comments of the Committee of Experts on this subject. She stated that Colombia was in the process of losing the right to strike. For example, in the biggest coal mine of Colombia, "Cerrejon", there was a call for a strike and the Government issued an administrative decree to stop the strike, on the grounds that it was a very serious attack on the national economy. Many like cases could be cited, some of which were not strictly strikes, but demonstrations which were called by workers and declared illegal by the Government. This showed that if the Government continued to act in this way the right to strike would no longer exist in Colombia. Referring to the Government representative's statement that there was progress as regarded labour legislation, the speaker asked whether this meant there would be genuinely free elections of trade union leaders without the necessity of submission to the Ministry; whether trade unions were going to be allowed to adopt their own statutes; and whether trade unions would be able to exist without being granted legal personality by the administrative authorities. The speaker gave the recent example of the trade union in the banking sector which had almost lost its legal personality by a decision of the Government. In this connection, the speaker referred to the prohibition of trade union members, particularly in the official sector, participating in political activities. There was a whole series of disciplinary trials on this account, and teachers throughout the country risked losing their jobs for having dared to stand as candidates for public office. This was a case of denial of the political rights of trade unionists. The speaker called upon the ILO to urgently send a mission to the country as had been done in 1988, to help put an end to the bloodbath that was engulfing the country, so that at least some trade unionists could come back and speak before the ILO, for there might soon not be any trade union leaders left alive in Colombia. She sounded a cry of alarm not only to other trade unions, but also to governments and employers, to help as much as they could so that violence would cease; so that impunity would not again become the norm; so that crimes would not go unprosecuted; and so that para-military groups would not longer be created through a resolution issued by the national Government. She recalled that this resolution had been repeated last year, but in fact they continued to act throughout the country. She repeated that, for all these reasons, the ILO had to intervene and she appealed to the international community to end the ferocious political campaign against the trade unions so that the lives and integrity of trade union leaders would be respected.

Another Workers' member of Colombia thanked the Committee for having given extensive time to the case of his country, which proved the international community's interest in the fate of a country which was fighting to remain within the community of civilised nations. Many of those present in this Committee had been present last year when a special paragraph on Colombia was adopted, and he felt that there was no reason not to adopt another special paragraph this year. Although it was important to refer to freedom of association and the right to strike, it was also important to refer to the right to life, without which none of the other rights could exist. Since the last session of the Conference, 91 trade unionists had been assassinated. All this showed that the situation in his country had worsened, that the investigations had not led to the detention of the guilty parties and that the sanctions provided by the penal law had not been applied. Without a doubt, nothing had been done to bring the labour legislation into conformity with the Convention. For example, the speaker recalled the case of the "Cerrejon" mines, pointing out that they were the largest open-cast mines in the world. These mines belonged to the multinational Eon, involved in exploitation of coal and petroleum, and which employed 102,000 workers in 80 countries; its profits for 1988 were over five billion dollars. The workers of this company in Colombia had called a strike to improve their living and working conditions. The Government had argued that this strike affected the economy of the nation, and thus needed to be stopped. The speaker recalled that a strike in any developing country naturally affected the country's economy because if it did not there would be no right to strike. The Committee of Experts had referred to the current restrictions on exercising the right to strike: the Minister could order the strike to cease after 40 days and impose arbitration, which was a clear violation of the Convention. The speaker stated that, given that the workers of Colombia were engaged in the struggle against the drug trade this case warranted the ILO's support and he was certain that the case deserved to appear in a special paragraph and that the necessary assistance should be provided.

A Workers' member of Spain stated that apart from the measures to amend the legislation and to bring it into conformity with the provisions of the present Convention, the Government representative should be asked whether the Government was prepared to arrest and imprison the members of the death squads linked to the army itself and in some cases were even being paid from the State budget; secondly, he wanted to know whether the officials of the Ministry of the Interior would persist in accusing trade unionists of being members of subversive or guerrilla groups without any justification, since these accusations had become a real message of certain death.

A Workers' member of Pakistan considered that the infringement of workers' rights in Colombia, their lack of physical safety and the killings, were not only of concern to them but also concerned the working class all over the world, as well as all freedom-loving people who cared about the welfare of workers. He joined the Colombian workers in the hope that these conditions would come to an end, and that the Government would take measures to protect the life and safety of the workers. The Committee of Experts had indicated on several occasions that the legislation existing in the country denied the basic rights and permitted interference in trade union activities. The legislation should be brought into conformity with the Convention. Since trade unions were a vehicle for achieving better living conditions, they should be allowed to function freely.

A Workers' member of the Federal Republic of Germany stated that the situation in Colombia was of great concern to many people, including trade unionists in his own country. The Colombian trade unionists were subjected to threats and persecution and deserved compassion. The report of Amnesty International, the reports of the International Confederation of Free Trade Unions (ICFTU) and of the Committee on Freedom of Association had referred to very serious violations of trade union and human rights. The particular drama in the case resided in the fact that it was not just a question of violation of international labour standards but also a question of the threat to life, in addition to the question of the right to strike and the right to elect trade union representatives freely. Trade unions had to register and make their financial situation known. They were not protected from uncontrolled terror by armed bands. The situation in Colombia could not be dissociated from question of general violence, so it was not really sufficient to consider trade union questions in isolation. The Committee has to appeal to the Government to combat the terror of armed bands and to eliminate international drug traffickers. This was a task for all countries and one in which the Government of Colombia needed to show more readiness so as to arrive at international co-operation. This Convention could not be applied where basic human rights, including freedom of association were overruled by martial law. The banana-growing Uraba region where 160 of the 260 plantations were unionised was still a major problem area and many trade unions had fallen victim to para-military terror. In 1988 this area had been decreed a military zone by Act No. 678, but in spite of strict controls by the thousands of soldiers who were there, para-military bands were still operating freely. In several cases accusations by state security forces had been shortly followed by the murder of trade unionists by these death squads. The present Committee would have liked to express the hope that with the beginning of the new presidency, the attitude of the Government would be different; but what had been said so far by the Government representatives did not indicate that the Colombian Government would be in a position to guarantee effective protection for the trade unions in the future. Only when bomb attacks on trade union buildings and the repression of union meetings and demonstrations and the killings ceased, could the assurances be trusted that the Government really was prepared to act. The action expected of the Government had already been set out in the Committee of Experts' report; recognition and protection of trade unions so that they could efficently protect the interests of workers, freedom to manage their own finances and to elect their representatives, freedom to call strikes without compulsory arbitration. The discussion had shown that this was a very serious case which called for a special paragraph as provided for in the procedures of the present Committee. The Workers' members of Brazil, Suriname, Uruguay and Venezuela expressed their solidarity with the workers of Colombia. They supported the inclusion of this case in a special paragraph.

A Workers' member of Chile recalled that a situation like the one described in Colombia had existed in his country for 16 years, but there had been a dictatorship in the country. He stressed that over 100 trade unionists, members of the CUT, had been murdered. He wondered whether the reduction in the number of strikes mentioned by the Government representative was not mainly due to the regime of terror in the country. He considered that freedom of association should include recourse to strike and to collective bargaining. He endorsed the call for a special paragraph.

The Employers' members recalled that last year the Committee of Experts had stated that this was an alarming case of violence. This description was still true today. Obviously very little had changed and it was the practical aspect which caused the greatest concern. Many important things needed to be changed and it was clearly very difficult to regain control of the situation. The Employers' members recalled some stages in the long discussion of this case: direct contacts in 1988; discussions in the present Committee; and a special paragraph in 1989. The Workers' member of the United Kingdom had summed this up by stating that there were not enough provisions to protect unions. This almost could also be expressed in the opposite way: that there were in part too many provisions which were, however, measures of interference. There were detailed legislative requirements for the founding and functioning of unions, the number of members who had to be Colombian, for union rules, financial matters, meetings and the election of union officers. This was a vast area where the Government could adopt the necessary amendments without being absolutely hindered by the problem of drug traffic and the state of emergency. But regrettably nothing concrete had been said about this by the Government representative. In the Committee of Experts' report, there were many references to limitations of the right to strike. With regard to the definition of admissible limitations of the right to strike under this Convention, the Employers' members had somewhat diverging views on certain points which they considered unjustified by reference to the interpretation rules in the Vienna Convention on the Interpretation of Treaties. Apart from that reservation, the Employers' members fully supported what had been said by previous speakers. On the recognition of new trade unions, there were contradictory allegations by the Government and the unions, and this should be a matter for detailed reporting by the Government for examination by the Committee of Experts. There was draft legislation concerning the prohibition of interference in political questions. This draft should also be sent for examination by the Committee of Experts with an indication as to when such a law might be promulgated. There was a long list of other restrictions which had required changes for some time. Therefore, the Employers' members concluded that, following the discussion in which the Government had failed to offer any new facts, their concern had remained the same and in part had even worsened, and this concern ought to be reaffirmed in the Committee's report by following last year's conclusions.

A Government representative of Colombia stated that he had listened with great attention to the statements made by the President of the Central Unica de Trabajadores (CUT) and the statements made by the other Workers' members and the Employers' members. Referring to the political situation, he did not contest the alarming and dramatic figures which had been presented, but considered them incomplete. The situation of violence in Colombia were even more dramatic than what had been described. A state of war existed as a result of the struggle of the establishment against drug-trafficking. It was a struggle to maintain the state of law against those elements who wanted to govern the destiny of the country, but who were themselves a scourge against all of humanity. According to the National Rehabilitation Plan statistics, there had been 9,312 deaths by violence during the past year in Colombia. Between January and June 1990, 186 policemen had been assassinated after drug traffickers had set a price on their heads. Just the day before, while this Committee was in session, five more policemen had been assassinated. A car bomb destroyed three buildings in Medelloin; four people were killed and 60 people were wounded in that attack which was instigated by the drug-traffickers. The people who were killed were not only trade union leaders, but also families, mothers, children, assassinated by drug-traffickers. Employers were killed, people who created progress and productivity. Four members of Parliament were killed, and during the recent electoral campaign three presidential candidates were killed by assassins. The speaker stressed that his country refused to accept this destabilisation. Trade union leaders had indeed been killed, as had ministers of justice, mayors and judges; recently bombs of 800 kilograms of dynamite had been found in an area where six ministers lived. The struggle was being waged with unequal arms. One of the drug magnates who was killed last December, Mr. Rodriguez Cacha, had on his estate 53 million dollars and 58 kilos of gold. It had been incorrectly stated that the situation in Colombia was the same as in June 1989; that was inaccurate because the Government had taken measures. Indeed, in the field of subversion, the Government had negotiated with guerilla groups: the Movement of the 19th of April (M-19), the Popular Liberation Front, the Armed Revolutionary Forces of Colombia (FARC), the "Quintén Lame", and the Revolutionary Workers' Party. In an unprecedented effort, the Government had carried on negotiations with the M-19 which ended on 9 March 1990, after 14 months of negotiation. Its leaders were re-incorporated in civilian life and constituted a political party. They had presented a presidential candidate in the last election, but the destabilising forces had assassinated that candidate. After the elections, this party had become the third electoral force in the country with 14 per cent of the votes cast. The speaker himself had represented the Government in the negotiations which were to continue with the People's Liberation Army in order to determine the place where they would deposit their arms. Aside from this struggle against violence, Colombia was carrying on another struggle: 467 industrialists had been kidnapped, for whom millions of pesos were asked as ransom. There were constant thefts and cattle rustling and some multinationals have been prevented from carrying out explorations in the country because of threats; therefore, they gave up the agreements concluded. In spite of these threats against the economy and the violence, the Government had indeed taken decisions. It had incorporated one subversive group into the political life of the country, it was holding peace talks with other subversive movements, it had issued a resolution to dismantle the armed self-defence groups, as one of the Workers' members had pointed out. The Government was aware that a constitutional reform had to be undertaken in order to modernise the institutions of the State. In 1990, a National Constitutional Assembly had been convened to carry out the constitutional reform, which would make it possible to cope with the critical situation prevailing in the country.

Another Government representative of Colombia, refering to the application of Conventions, stated that despite the situation in the country, his Government continued to fulfil its obligations. The Convention on labour statistics had recently been ratified and, with the support of the trade unions, a trade union census had been carried out in the country, so that it was now possible to know the exact situation of trade unions. With regard to the "Cerrejon" strike, after a process of negotiations of 73 days' duration going through all the instances, the Government took a decision which was accepted by the workers, to return imemdiately to work, guaranteeing them in any case full trade union rights. He agreed with the request of the Workers' members and several other members of this Committee that the ILO should send a commission to verify the application of ratified Conventions. He formally asked on behalf of the Government that the ILO designate such a commission in order to co-operate with the Government both in applying the Conventions and in elaborating the draft laws which were in preparation. He had already mentioned that a draft reform of the labour institutions was ready to be submitted to the National Labour Council and that other drafts concerning social security and ratification of certain ILO Conventions were in progress. For these reasons he appealed for international solidarity and technical assistance, as had been given last year by the ILO through PREALC.

The Workers' members, comparing the present situation with the situation in 1989, concluded that on the basis of the Committee of Experts' report and the information supplied by the Government representatives, there had been some slight progress with regard to application of the Convention. However it was a question of good intentions and draft legislation, but as yet there were no concrete measures, which meant that the problems and questions remained. This was true for nearly all the points covered in the report of the Committee of Experts, In particular, the two following points remained: the lack of respect for trade union rights in practice and the prohibition of free expression of trade union organisations which limited their ability to act in defence of the workers. These elements were at the root of the dramatic situation described by the Workers' members. In regard to these two essential points there had been no substantial progress. This had already been this Committee's conclusion in 1989, and one could only repeat it this year: to request the Government to take all the necessary measures to bring its legislation and institutions into conformity with the Convention, to reinstate a climate in which civil liberties - including freedom of association - could be restored, and to guarantee the physical safety of trade unionists. In view of the gravity of this case, the lack of substantial progress, the fact that the same problems had been recurring for several years, and the fact that in 1989 the present Committee had already included a special paragraph in the report, the Workers' members proposed that this year once again the case be mentioned in a special paragraph, in the hope that the new Government would take the situation seriously.

A Government representative recalled that progress had been made this year, and referred again to the constitutional reform underway and to the revision of labour institutions.

A Workers' member of Colombia expressed the hope that his Government would talk with the trade unions regarding the application of this Convention, just as discussions were being held with armed groups.

As the Government representative had invited the trade union representatives to participate in the National Labour Council, the Workers' representative of Colombia replied that the trade unions would willingly participate in the Council if it was to be a decision-making body, but the Council's powers had been revised and the union representatives now could only give advice, contrary to the previous situation where they had enjoyed the right to vote on decisions.

The Committee took note of the report of the Committee of Experts and of the information supplied by the Government representatives and of the detailed discussions which had taken place within this Committee. It also noted that the Government had established both a special committee to examine the whole of its labour legislation and a tripartite National Labour Council to assist in the process of reform. However, as was the case in 1989, the Committee expressed its deep concern at the persistence of a very grave and serious situation, and the persistence of a large number of major and profound discrepancies between law and practice and the requirements of the Convention. Accordingly, the Committee again requested the Government to take all the necessary measures to bring law and practice into full conformity within the Convention. The Committee took note of the Government's request for technical assistance from the ILO in the field of labour relations. It expressed the hope that the Government would be able to report substantial progress in its next report. It decided to mention this case in a special paragraph.