Observación (CEACR) - Adopción: 2000, Publicación: 89ª reunión CIT (2001)

1.  The Committee notes that the Government has not supplied a report on the application of the Convention. Following the recommendations of the Commission of Inquiry established to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), the Committee has, however, taken note of the following information:

-  the information presented by the Government to the Director-General of the ILO in communications dated 21 January, 20 March, 27 May, 29 October (as supplemented subsequently), and 3, 15 and 17 November 2000;

-  the information submitted to, and the discussions held in, the Governing Body of the ILO at its 277th and 279th Sessions in March and November 2000;

-  the information and discussion at the International Labour Conference at its 88th Session (May-June 2000);

-  the resolution adopted by the International Labour Conference at its 88th Session concerning the measures recommended by the Governing Body under article 33 of the ILO Constitution on the subject of Myanmar to secure compliance with the recommendations of the Commission of Inquiry, and the entry into effect of those measures on 30 November 2000, following consideration of the matter by the Governing Body at its 279th Session (November 2000);

-  the resolutions adopted by the General Assembly of the United Nations at its 54th Session (17 December 1999) and by the United Nations Commission on Human Rights at its 56th Session (March-April 2000) on the situation of human rights in Myanmar (extracts in International Labour Conference, 88th Session, Geneva, 2000, Provisional Record No. 4, Annex III);

-  the second report of the Director-General of the ILO to the members of the Governing Body on measures taken by the Government of Myanmar, dated 25 February 2000;

-  the interim report prepared by judge Rajsoomer Lallah, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, dated 22 August 2000 [(UN document A/55/359]; and the note by the Secretary-General of the United Nations on the same subject, dated 20 October 2000 [UN document A/55/509];

-  the reports of the ILO technical cooperation missions to Myanmar of May 2000 [(ILC, 88th Session, Geneva, 2000, Provisional Record No. 8] and October 2000 [GB.279/6/1 and Add.1];

-  a communication dated 15 November 2000 in which the International Confederation of Free Trade Unions submitted to the ILO voluminous documentation referring to the imposition of forced labour in Myanmar during the period June-November 2000, a copy of which was sent to the Government for such comments as it may wish to present;

-  a press release issued on 17 November 2000 by the Ministry of Foreign Affairs of the Union of Myanmar in Yangon, and an information sheet issued by the Myanmar Information Committee in Yangon on a press conference held on 18 November 2000 by the Government on the decision of the ILO Governing Body to activate measures on the subject of Myanmar.

2.  Information available on the observance of the Convention by the Government of Myanmar will be discussed in three parts, dealing with: (i) the amendment of legislation; (ii) any measures taken by the Government to stop the exaction in practice of forced or compulsory labour and information available on actual practice; (iii) the enforcement of penalties which may be imposed under the Penal Code for the exaction of forced or compulsory labour.

I.  Amendment of legislation

3.  In paragraph 470 of its report of 2 July 1998, the Commission of Inquiry noted:

… that section 11(d), read together with section 8(1)(g), (n) and (o) of the Village Act, as well as section 9(b) of the Towns Act provide for the exaction of work or services from any person residing in a village tract or in a town ward, that is, work or services for which the said person has not offered himself or herself voluntary, and that failure to comply with a requisition made under section 11(d) of the Village Act or section 9(b) of the Towns Act is punishable with penal sanctions under section 12 of the Village Act or section 9(a) of the Towns Act. Thus, these Acts provide for the exaction of "forced or compulsory labour" within the definition of Article 2(1) of the Convention.

The Commission of Inquiry further noted that the wide powers to requisition labour and services under these provisions do not come under any of the exceptions listed in Article 2, paragraph 2, of the Convention and are entirely incompatible with the Convention. Recalling that the amendment of these provisions had been promised by the Government for over 30 years, the Commission urged the Government to take the necessary steps to ensure that the Village Act and the Towns Act be brought into line with the Convention without further delay, and at the very latest by 1 May 1999 (paragraph 539(a) of the Commission’s report).

4.  In its previous observation, the Committee noted that by the end of November 1999, neither the Village Act nor the Towns Act had been amended, nor had any draft law proposed or under consideration for that purpose been brought to the knowledge of the Committee. However, an "Order Directing Not to Exercise Powers Under Certain Provisions of the Town Act, 1907 and the Village Act, 1907" (No. 1/99) was issued by the Government on 14 May 1999, which in fact still reserved the exercise of powers under the relevant provisions of the Village Act and the Towns Act which remain incompatible with the requirements of the Convention.

5.  The Committee notes from the report of the October 2000 ILO technical cooperation mission to Myanmar (GB.279/6/1, paragraphs 9 and 10, Annexes 13 and 19) that a draft text providing for the amendment of the Village Act and the Towns Act through an amendment of Order No. 1/99 was not retained by the Government. However, the same report (in Annex 19) reproduces the English text of an "Order Supplementary Order No. 1/99" made by the Ministry of Home Affairs under the direction of the State Peace and Development Council on 27 October 2000 which modifies Order No. 1/99 so as to order "responsible persons including members of the local authorities, members of the armed forces" etc. "not to requisition work or service notwithstanding anything contained" in the relevant sections of the Towns and Village Acts, except in cases of emergency as defined in Article 2(2)(d) of the Convention (GB.279/6/1, Annex 19). The Burmese text of this Order of 27 October, which was to be published in the Myanmar Gazette, has not yet been supplied to the ILO.

6.  The Committee observes that the amendment of the Village and Towns Acts sought by the Commission of Inquiry as well as the present Committee and promised by the Government for many years has not yet been made. It again expresses the hope that the Village Act and the Towns Act will at last be brought into conformity with the Convention.

7.  The Committee nevertheless notes that Order No. 1/99 as supplemented by the Order of 27 October 2000 could provide a statutory basis for ensuring compliance with the Convention in practice, if given effect bona fide not only by the local authorities empowered to requisition labour under the Village and Towns Acts, but also by civilian and military officers entitled to call on the assistance of local authorities under the Acts. This, in the view of the Committee, calls for further measures to be undertaken, as indicated by the Commission of Inquiry in its recommendations in paragraph 539(b) of its report.

II.  Measures to stop the exaction in practice of forced or compulsory
  labour and information available on actual practice

A.  Measures to stop the exaction in practice of forced or compulsory labour

8.  In its recommendations in paragraph 539(b) of its report of July 1998, the Commission of Inquiry indicated that steps to ensure that in actual practice no more forced or compulsory labour be imposed by the authorities, in particular the military, were:

… all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act. Thus, besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 [of the Commission’s report] to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required … .

9.  The Committee notes from the report of the October 2000 ILO technical cooperation mission to Myanmar, the suggestion made by the mission of a Supplementary Order or directive from the Office of the Chairman of the State Peace and Development Council concerning requisition of labour or services (GB.279/6/1, Annex 13). The suggested text was to order all state authorities, including military, police and civilian authorities and their officers, not to requisition persons to provide labour or services for any purpose, nor to order others to requisition such labour or services, regardless of whether or not payment is made for said labour or services, except in cases of emergency as defined in Article 2(2)(d) of the Convention. The suggested prohibition was to include but not be limited to the requisition of labour or services for the following purposes:

(a)  portering for the military (or other military/paramilitary groups, for military campaigns or regular patrols);

(b)  construction or repair of military camps/facilities;

(c)  other support for camps (such as guides, messengers, cooks, cleaners, etc.);

(d)  income generation by individuals or groups (including work in army-owned agricultural and industrial projects);

(e)  national or local infrastructure projects (including roads, railways, dams, etc.);

(f)  cleaning/beautification of rural or urban areas.

Similar prohibitions were to apply to the requisition of materials or provisions of any kind and to demands of money except where due to the State or to a municipal or town committee under relevant legislation. Furthermore, the suggested text was to provide that if any state authority or its officers requires labour, services, materials or provisions of any kind and for any purpose, they must make prior budgetary arrangements to obtain these by a public tender process or by providing market rates to persons wishing to supply these services, materials or provisions voluntarily, or wishing to offer their labour.

10.  The Committee notes that the text suggested by the mission was not adopted, but that the English versions of several instructions dated 27 and 28 October 2000 and 1 November 2000 were forwarded to the ILO after the departure of the mission and reproduced in addenda to the mission’s report (GB.279/6/1(Add.1)(Rev.1) and (Add.2)).

11.  The instruction dated 27 October 2000 "Prohibiting Requisition of Forced Labour" is signed for the Director-General of the Police Force and addressed to all units of the police force. The instruction dated 28 October 2000 on the same subject is addressed by the Director-General of the General Administration Department of the Ministry of Home Affairs to all State/Divisional Commissioners and General Administration Departments and requires, inter alia, Order No. 1/99 and the order supplementing it to be displayed separately on noticeboards of all the levels of peace and development councils as well as the General Administration Departments.

12.  The instruction dated 1 November 2000 "Prohibiting Requisition of Forced Labour" is signed at the highest level, by Secretary-1 of the State Peace and Development Council, and addressed to the Chairmen of all State and Divisional Peace and Development Councils. The latter instruction thus reaches beyond institutions that come under the authority of the Ministry of Home Affairs. It is, however, primarily directed to the enforcement of Order No. 1/99 and the Order of 27 October 2000 supplementing it, which are limited in scope to the requisition of forced labour under the Village Act and the Towns Act, i.e. not by civilian or military state officers but by local authorities, who may requisition labour under the Acts when called upon to provide assistance to civilian and military state officers. Nevertheless, the instruction dated 1 November interprets the Supplementing Order of 27 October 2000 as follows:

2.  … The Supplementing Order renders the requisition of forced labour illegal and stipulates that it is an offence under the existing laws of the Union of Myanmar. Responsible persons, including the local authorities, members of the armed forces, members of the police force and other public service personnel are also prohibited not to requisition forced labour and are instructed to supervise so that there shall be no forced labour.

It would appear to the Committee that a bona fide application of this prohibition should cover the typical case of members of the armed forces who order local authorities to provide labourers, even if the manner of complying with such order - through requisition or hiring of labourers or otherwise - is left to the local authorities.

13.  The instruction dated 1 November 2000 continues as follows:

3.  Therefore, it is hereby directed that the state and divisional peace and development councils shall issue necessary instructions to the relevant district and township peace and development councils to strictly abide by the prohibitions contained in Order No. 1/99 and the Supplementing Order of the Ministry of Home Affairs and also to effectively supervise to ensure that there shall be no forced labour within their respective jurisdictions.

4.  Responsible persons, including members of the local authorities, members of the armed forces, members of the police force and other public service personnel who fail to abide by the said Order No. 1/99 and the Supplementing Order shall be prosecuted under section 374 of the Penal Code or any other existing laws.

It would appear to the Committee that again, as set out in paragraph 12 above, a bone fide application of the instruction would include, in the scope of point 4 of the instruction, members of the armed forces who order local authorities to supply labour.

14.  It remains to be seen whether the "necessary instructions" yet to be issued by the state and divisional peace and development councils under point 3 of the instruction of 1 November will contain the kind of details necessary for a feasible implementation. Such details were set out by the Commission of Inquiry in paragraph 539(b) of its report and included by the October 2000 technical cooperation mission in its suggestion mentioned in paragraph 9 above.

15.  The three instructions forwarded so far to the ILO do not yet contain any positive indication on the manner in which authorities that have been used to rely on forced and unpaid labour contributions of the population are hereafter to make realistic provision for the labour and services they may require.

16.  Furthermore, the three instructions do not spell out the various forms of forced labour found by the Commission of Inquiry and this Committee to be mainly imposed in practice, as listed in paragraph 9 above. In this regard, the Committee recalls that most of the forms of forced labour or services requisitioned concerned the military. The Committee notes that "members of the armed forces" are specifically included among the responsible persons listed in point 4 of the instruction dated 1 November 2000 (quoted in paragraph 13 above). However, in point 3 of the same instruction, the order to issue the necessary further - and, hopefully, more detailed - instructions is addressed to the state and divisional peace and development councils (which in fact include officers of the armed forces), but not to the regional commanders of the armed forces in their military capacity.

17.  In the absence of specific and concrete instructions to the civilian and military authorities containing a description of the various forms and manners of exaction of forced labour, the application of the provisions adopted so far turns upon the interpretation in practice of the notion of "forced labour". This cannot be taken for granted, as shown by the various Burmese terms used sometimes when labour was exacted from the population - including "loh ah pay", "voluntary" or "donated" labour. The need for clarity on the point is underscored by the Government’s recurrent attempts to link the pervasive exaction of labour and services by mainly military authorities to merit which may be gained in the Buddhist religion from spontaneously offered help. The Commission of Inquiry recalled in paragraph 539(c) of its report that "the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government’s statements" was "all the more likely to occur in actual recruitment by local or military officials".

18.  Thus, clear instructions are still required to indicate to all officials concerned, including officers at all levels of the armed forces, both the kinds of tasks for which the requisition of labour is prohibited, and the manner in which the same tasks are henceforth to be performed. The Committee hopes that the necessary detailed instructions will soon be issued, and that, in the words of paragraph 539(b) of the Commission of Inquiry’s report, provision will also be made for "the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour".

B.  Information available on actual practice

(a)  The practice August 1998 to December 1999

19.  In his reports dated 21 May 1999 and 25 February 2000 to the members of the Governing Body, the Director-General indicated that all information on actual practice that was received (from workers’ and employers’ organizations, intergovernmental organizations and governments of member States of the ILO) in reply to his requests, referred to continued widespread use of forced labour by the authorities, in particular by the military.

(b)  Information on the practice up to November 2000

20.  In its communication dated 15 November 2000, the ICFTU refers to the persistence of severe breaches of the Convention by the military authorities. Documentary appendices enclosed by the ICFTU represent over 1,000 pages drawn from over 20 different sources and include reports, interviews of victims; over 300 forced labour orders, photographs, video recordings and other material. A few events described therein took place in the first half of the year 2000; an overwhelmingly large proportion of the documents concerns the period June to November 2000.

21.  An essential part of the ICFTU submission consists of hundreds of "forced labour orders", issued mainly by the army but also by armed groups under its control and elements of the local administration. As stated by the ICFTU, these are similar in kind, shape and contents to the orders already examined by the Commission of Inquiry and the regular ILO supervisory mechanisms and found by same to be authentic. Documentary materials submitted refer to the persistence on a large scale of forced portering, including by women, and the murder of forced porters no longer able to carry their burden. In addition to forced portering, all other forced labour practices identified previously by the Commission of Inquiry are referred to for the period June to November 2000. A great number of specific reported instances include forced labour for the building and maintenance of roads, bridges, railroads, water canals, dikes, dams and reservoirs, as well as for the building, repair, maintenance and servicing of army camps; and the requisition of labour as well as seeds, fertilizer, materials and equipment for army-held agricultural land, forests and installations.

22.  As indicated above, copies of the ICFTU communication of 15 November 2000, including the voluminous documentation submitted, were sent to the Government for such comments as it may wish to present.

III.  Enforcement

23.  In paragraph 539(c) of its recommendations the Commission of Inquiry urged the Government to take the necessary steps to ensure:

… that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced labour or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty.

24.  In practice, no action whatsoever under section 374 of the Penal Code has so far been brought to the knowledge of the Committee.

25.  The Committee notes that point 4 of the instruction dated 1 November 2000 from the State Peace and Development Council to All State and Divisional Peace and Development Councils, reproduced in paragraph 13, provides for the prosecution of "responsible persons" under section 374 of the Penal Code. Similar clauses are included in point 3 of the instruction dated 27 October, and point 6 of the instruction dated 28 October, referred to in paragraph 11 above. Moreover, under points 4 to 6 of the instruction dated 27 October 2000, addressed by the Director-General of the Police Force to all units of the police force:

4.  If any affected person files a verbal or written complaint to the police station of having been forced to contribute labour, the latter shall record the complaint in Forms A and B of the police station and send the accused for prosecution under section 374 of the Penal Code.

5.  It is hereby directed that the police stations and units concerned at various levels shall be further instructed to make sure their strict compliance with the said Order as well as to supervise so that there shall be no requisition of forced labour. A copy of the Order Supplementing Order No. 1/99 issued by the Ministry of Home Affairs on 27 October 2000 is enclosed herewith.

6.  It is instructed to acknowledge receipt of this directive and to report back actions taken on the matter.

26.  With regard to point 4 of the latter instruction (dated 27 October 2000) the Committee hopes that prosecutions under section 374 of the Penal Code will be brought by the law enforcement agencies on their own initiative, without waiting for complaints by the victims, who may not consider it expedient to denounce the "responsible persons" to the police. The Committee hopes that in commenting on indications that the imposition of forced labour has continued beyond October 2000, the Government will also report on any concrete action taken under section 374 of the Penal Code.

27.  The Committee has noted the assurance, in the Government’s letter dated 29 October 2000 to the Director-General of the ILO, of the "political will to ensure that there is no forced labour in Myanmar, both in law and in practice". It also has taken due note of the Order Supplementing Order No. 1/99 and the three instructions issued between 27 October and 1 November 2000, and of the view of the Employer members of the Governing Body at its 279th Session (November 2000) that this was "too little too late". At a press conference held 18 November 2000 in Yangon on the decision of the Governing Body of the ILO to activate measures on the subject of Myanmar, the Government indicated that it would no longer cooperate with the ILO in relation to the Forced Labour Convention, 1930 (No. 29), but that it would continue to take steps to prevent forced labour, as this was its policy. The Committee hopes that the Government will thus at last take the necessary measures to ensure the observance in law as well as in practice of the Convention, a basic human rights instrument freely ratified by Myanmar. It also hopes that the Government, which had failed to take part in the proceedings before the Commission of Inquiry, will avail itself of the opportunity to present its views and progress in reporting on the application of the Convention, in conformity with its obligations under article 22 of the ILO Constitution.

[The Government is asked to report in detail in 2001.]