Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the discussion that took place at the Conference Committee on the Application of Standards in June 2009. It also notes the conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos 2268 and 2591 (354th Report, approved by the Governing Body at its 305th Session, June 2009, paragraphs 154–168), and the comments submitted by the International Trade Union Confederation (ITUC) in a communication of 26 August 2009 which refer to grave matters noted by the Committee in its previous comments.

The Committee recalls the ITUC’s previous reference to the arrest, heavy-handed interrogation and long prison sentences imposed on six workers (Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min). The six workers were sentenced on 7 September 2007 to 20 years’ imprisonment for sedition and Thurein Aung, Wai Lin, Kyaw Win, and Myo Min were sentenced to an additional five years in prison for association with the Federation of Trade Unions of Burma (FTUB) under section 17(1) of the Unlawful Associations Act and to three years for illegally crossing a border, as a result of which their jail time amounted to 28 years in total. The Committee notes that in its 2009 comments the ITUC indicates that the six workers appealed their convictions to the divisional court, which dismissed them, prompting them to file their appeals to the Supreme Court – which reviewed the cases on 4 April 2008 and let the original court rulings stand.

The Committee recalls the previous allegations concerning Burma Railway Union leader U Tin Hla. According to the ITUC, U Tin Hla had been arrested along with his entire family on 20 November 2007, and – while his family was later released – was charged and sentenced to seven years in prison under section 19(a) of the Penal Code for possession of explosives which were, in fact, electric wires and tools in his toolbox. The ITUC had indicated that U Tin Hla’s crime was apparently his very active efforts to organize workers from the railways and other sectors to support the popular uprising of the Buddhist monks and people in late September 2007. In its 2009 comments, the ITUC adds that U Tin Hla remains in prison, suffering from tuberculosis and diabetes.

In respect of Su Su Nway, who allegedly had been arrested for her actions in supporting workers’ participation in the September 2007 uprising, the Committee notes that in its 2009 comments the ITUC states that in November 2008 Su Su Nway was convicted of encouraging assembly of persons disturbing state tranquillity, obstructing the work of officials, and issuing communications that interfere with Myanmar’s relations with other nations. She was sentenced to 12 years and 6 months in prison. The ITUC also indicates that at the end of 2008 three workers – Khin Maung Cho (aka. Pho Toke), Nyo Win, and Kan Myint – employed at the A21 Soap Factory in Hlaing Thayar Industrial Zone, were sentenced to long jail terms for involvement with exiled groups, sedition and other charges. Khin Maung Cho was sentenced to 19 years, while Kan Myint received ten years in jail and Nyo Win was given a five-year sentence.

The Committee recalls that the ITUC had previously referred to numerous other grave violations of the Convention, including:

–           the imprisonment of Myo Aung Thant, member of the All Burma Petro-Chemical Corporation Union, who has now been in jail for over 12 years after having been convicted for high treason for maintaining contacts with the FTUB (under section 122(1) of the Penal Code);

–           the killing of Saw Mya Than, FTUB member and official of the Kawthoolei Education Workers’ Union (KEWU), who was allegedly murdered by the army in retaliation for a rebel attack, and in respect of whose murder the Committee on Freedom of Association had requested the Government to institute an independent inquiry in the framework of Case No. 2268;

–           the disappearance on 22 September 2007 of Lay Lay Mon, a female labour activist who is a former political prisoner, after helping organize workers to support protesting monks and citizens in the uprising in Yangon; she was believed to be incarcerated in Insein prison but there was no news of if, or when, she would be brought to trial;

–           the disappearance of labour activist Myint Soe during the last week of September 2007 after being active in engaging with workers to increase their involvement in the September uprising;

–           the arrest by the military authorities on 8 and 9 August 2006 of seven members of the family of the FTUB member and activist Thein Win at their house in the Kyun Tharyar section of Pegu city. While in detention, several male members of the family were tortured while being interrogated. On 3 and 4 September 2006, the authorities released four of the family members. But three of Thein Win’s siblings (Tin Oo, Kyi Thein and Chaw Su Hlaing) were sentenced to 18 years in jail under sections 17(1) and (2) of the Unlawful Associations Act. Tin Oo suffered such intensive torture during detention that he has now become mentally unstable and there are fears for his health;

–           the arrest in March 2006 of five underground democracy and labour activists for a variety of offences connected to efforts to provide information to the FTUB and other organizations considered as illegal by the regime, and to organize peaceful anti-SPDC demonstrations. All five were sentenced to long prison terms and four were serving those terms in Insein prison (U Aung Thein, 76 years old, sentenced to 20 years; Khin Maung Win, sentenced to 17 years; Ma Khin Mar Soe, 17 years; Ma Thein Thein Aye, 11 years; and U Aung Moe, 78 years old, sentenced to 20 years);

–           the intimidation by the army of the 934 workers at Hae Wae Garment, located in South Okkapala Township in Yangon, who went on strike on 2 May 2006 to demand better terms and conditions of work. The 48 workers allowed to meet with the authorities were forced to sign a written statement that indicated that there were no problems at the factory;

–           the arrest and sentencing to a four-year prison term with hard labour of Naw Bey Bey, an activist member of the Karen Health Workers’ Union (KHWU); she was supposedly held in Toungoo;

–           the arrest, torture and killing of Saw Thoo Di, aka. Saw Ther Paw, a Karen Agricultural Workers’ Union (KAWU) committee member from Kya-Inn township, Karen State, by an armed column of Infantry Battalion 83 outside his village on 28 April 2006;

–           the shelling of the Pha village with mortars and rocket propelled grenades by Light Infantry Battalion 308 which had been sent by the SPDC military upon learning that, on 30 April 2006, the FTUB and Federation of Trade Unions – Kawthoolei (FTUK) were preparing a May Day workers’ rights commemoration; and

–           the arrest, torture, and sentencing by a special court established in prison of ten FTUB activists to prison sentences, from three to 25 years, for having used satellite phones to convey information to the ILO and to the international trade union movement through an intermediation by the FTUB.

As concerns the six workers arrested for allegedly participating in a May Day 2007 event, the Committee notes that the statement of the Government representative to the Conference Committee repeats the Government’s previous indication that they had not been arrested for holding a May Day event, but for breach of existing laws and for their involvement in unlawful activities and attempted terrorist acts in the country. There was solid evidence that those persons had been receiving instructions, training and financial assistance from the FTUB, a terrorist group in exile and unlawful association which masterminded bombings and terrorist acts to incite public unrest in the country. The Government representative further stated that any request to release them immediately constituted an infringement upon national sovereignty and was contradictory to the basic principles of public international law and Article 8 of the Convention, which stipulates that the law of the land should be respected.

With respect to U Tin Hla, the Committee notes that the statement of the Government representative to the Conference Committee reiterates the Government’s previous indication that U Tin Hla was neither a leader nor a member of a labour union, but had worked as a supervisor for Myanmar Railways, which had no union. He had been caught by the police when committing the crime of possessing ammunition and had been subsequently charged and sentenced. As regards the ITUC’s other allegations of the murder, detention, torture, arrest and sentencing of trade unionists, the Government states that the persons referred to were not arrested and convicted for having engaged in trade union activity but for having incited hatred of and contempt for the Government.

The Committee can only deplore the fact that the Government in its report largely confines itself to its previous observations – referring to the FTUB as a terrorist organization and indicating peremptorily that the numerous persons referred to were convicted for breaches of existing laws and inciting hatred of the Government – while failing to provide any evidence of measures taken to implement the Committee’s previous requests. Once again, the Committee deeply regrets the dismissive tone of the Government’s reply and the paucity of the information provided, which is in stark contrast to the extreme gravity of the issues raised by ITUC. The Committee once again strongly condemns the view expressed by the Government that comments made by workers’ organizations under article 23 of the ILO Constitution and recommendations made by the ILO supervisory bodies to remedy violations of the fundamental rights of workers constitute interference in internal affairs, emphasizing in this regard that the membership of a State in the International Labour Organization carries with it the obligation to respect in national legislation freedom of association principles and the Conventions which the State has freely ratified including Convention No. 87.

The Committee once again stresses that respect for the right to life and other civil liberties is a fundamental prerequisite for the exercise of the rights contained in the Convention and workers and employers should be able to exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats. Furthermore, as regards the reported torture, cruelty and ill-treatment, the Committee once again points out that trade unionists, like all other individuals, should enjoy the safeguards provided by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and governments should give the necessary instructions to ensure that no detainee suffers such treatment (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 30).

Finally, recalling that there is currently no legal basis to the respect for, and realization of, freedom of association in Myanmar, the Committee once again recalls that while trade unions are expected under Article 8 of the Convention to respect the law of the land, “[t]he law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention”. The authorities should not interfere with legitimate trade union activities through arbitrary arrest or detention and allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities.

The Committee therefore once again most strongly deplores the serious alleged acts of murder, arrest, detention, torture and sentencing to many years of imprisonment of trade unionists for the exercise of ordinary trade union activities, including the mere sending of information to the FTUB and participation in May Day activities. The Committee once again urges, the Government to provide information on measures adopted and instructions issued without delay so as to ensure respect for the fundamental civil liberties of trade union members and officers and to take all necessary measures to secure the immediate release of Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win, Myo Min, and all those who have been imprisoned for the exercise of trade union activities immediately and to ensure that no worker is sanctioned for the exercise of such activities, in particular for having contacts with workers’ organizations of their own choosing. Furthermore, recalling that the right of workers and employers to freely establish and join organizations of their own choosing cannot exist unless such freedom is established and recognized both in law and in practice, the Committee once again urges the Government to indicate all measures taken, including instructions issued, to ensure the free operation of any form of organization of collective representation of workers, freely chosen by them to defend and promote their economic and social interests, including organizations which operate in exile.

The Committee recalls the issues it has been raising over the years with respect to the legislative framework, including the prohibition of trade unions and the absence of any legal basis for freedom of association in Myanmar (repressive anti-union legislation, obscure legislative framework, military orders and decrees further limiting freedom of association, a single trade union system established in the 1964 Law and an unclear constitutional framework); the Federation of Trade Unions of Burma (FTUB) forced to work underground and accused of terrorism; “workers’ committees” organized by the authorities; and the repression of seafarers even overseas and the denial of their right to be represented by the Seafarers’ Union of Burma (SUB) which is affiliated to the FTUB and the International Transport Workers’ Federation (ITF).

The Committee further recalls that, for several years, it has indicated that there exist some pieces of legislation containing important restrictions to freedom of association or provisions which, although not directly aimed at freedom of association, can be applied in a manner that seriously impairs the exercise of the right to organize. More specifically: (1) Order No. 6/88 of 30 September 1988 provides that the “organizations shall apply for permission to form to the Ministry of Home and Religious Affairs” (section 3(a)), and states that any person found guilty of being a member of, or aiding and abetting, or using the paraphernalia of, organizations that are not permitted, shall be punished with imprisonment for a term which may extend to three years (section 7); (2) Order No. 2/88 prohibits the gathering, walking or marching in procession by a group of five or more people regardless of whether the act is with the intention of creating a disturbance or of committing a crime; (3) the Unlawful Association Act of 1908 provides that whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association, or in any way assists the operations of any such association, shall be punished with imprisonment for a term which shall not be less than two years and more than three years and shall also be liable to a fine (section 17.1); (4) the 1926 Trade Union Act requires that 50 per cent of workers must belong to a trade union for it to be legally recognized; (5) the 1964 Law Defining the Fundamental Rights and Responsibilities of the People’s Workers establishes a compulsory system for the organization and representation of workers and imposes a single trade union; and (6) the 1929 Trade Disputes Act contains numerous prohibitions of the right to strike and empowers the President to refer trade disputes to courts of inquiry or to industrial courts.

Recalling that it had previously requested a detailed report on the measures taken to address the above-noted legislative matters, the Committee deeply regrets that the Government limits itself to repeating previously submitted information on the adoption of the Constitution and upcoming legal reforms. The Government reiterates that several sections of the Constitution would give effect to the provisions of the Convention (paragraph 96 of Chapter IV, paragraphs 353, 354 and 355 of Chapter VIII, and Schedule One, Union Legislative List, in Chapter XV) and repeats that, once the Constitution comes into force, pursuant to its provisions, national legislation would be reviewed and new laws drafted, including the Trade Union Law, and that they would be in line with Convention No. 87. In respect of the legislation, the Committee also notes that according to the Government the FTUB had been declared a terrorist organization by the Ministry of Home Affairs in Declaration No. 1/2006, and was also an unlawful association under the Unlawful Associations Act, 1908.

With regard to the Government’s indications, the Committee further notes that in its conclusions the Conference Committee, wishing to highlight the intrinsic link between freedom of association and democracy, observed with regret that the Government had undertaken a road map for the latter without ensuring the basic requisites for the former. The Conference Committee also called upon the Government to take concrete steps urgently, with the full and genuine participation of all sectors of society regardless of their political views, to ensure that the Constitution, the legislation and the practice were fully brought into line with the Convention.

Finally, the Committee recalls its previous observation that there was currently no legal basis for the respect for, and realization of, freedom of association in Myanmar and that the broad exclusionary clause of article 354 of the Constitution subjects the exercise of this right “to the laws enacted for State security, prevalence of law and order, community peace and tranquillity or public order and morality”. In this respect the Committee had noted with deep regret that the drafting of article 354 of the Constitution may continue to give rise to continued violations of freedom of association in law and practice. Recalling the particularly serious and urgent issues that it has been raising for nearly 20 years now, the Committee must once again deplore the Government’s persistent failure to take any measures to remedy the legislative situation which constitutes a serious and ongoing breach by the Government of its obligations flowing from its voluntary ratification of the Convention. Furthermore, the Committee once again deeply regrets the exclusion from any meaningful consultation of the social partners and civil society as a whole, which would be a necessary foundation for the establishment of a legislative framework on the particularly serious and urgent issues raised in relation to the application of the Convention.

In these circumstances, the Committee once again urges the Government to furnish without delay a detailed report on the concrete measures taken, with the full and genuine participation of all sectors of society regardless of their political views, to enact legislation guaranteeing to all workers and employers the right to establish and join organizations of their own choosing, as well as the rights of these organizations to exercise their activities and formulate their programmes and to affiliate with federations, confederations and international organizations of their own choosing without interference from the public authorities. It further urges the Government in the strongest terms to immediately repeal Orders Nos 2/88 and 6/88, the Unlawful Association Act, and Declaration No. 1/2006 of the Ministry of Home Affairs, so that they cannot be applied in a manner that would infringe upon the rights of workers’ and employers’ organizations. The Committee once again requests the Government to communicate any steps taken towards the adoption of draft laws, orders or instructions to guarantee freedom of association so that it may examine their conformity with the provisions of the Convention.

The Committee notes that the Conference Committee, recalling its previous conclusion that the persistence of forced labour could not be disassociated from the prevailing situation of a complete absence of freedom of association and the systematic persecution of those who tried to organize, called upon the Government to accept an extension of the ILO presence to cover the matters relating to Convention No. 87. Noting the indication in the Government’s report that an extension of the ILO presence to cover the matters related to the Convention was under consideration, the Committee expresses the firm hope that the Government will be in a position to accept such an extension in the very near future.