Observación (CEACR) - Adopción: 2002, Publicación: 91ª reunión CIT (2003)

1. The Committee has noted the Government’s responses on the application of the Convention, including: reports received on 9 September 2002 and on 17 October 2002, communications dated 15 November 2002 and 18 November 2002, a report entitled "Developments concerning Convention No. 29" dated 18 November 2002, a report transmitted on 27 November 2002, and a supplementary progress report dated 27 November 2002. In examining compliance with 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 furthermore taken note of the following information:

-  the information submitted to, and the discussions held at, the International Labour Conference at its 90th Session (June 2002) (Provisional Record No. 28, Part Three);

-  the information submitted to the Governing Body of the ILO at its 285th Session in November 2002, including in particular the report on "Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)" (GB.285/4 and appendices), the presentation by the representative of the Government and the conclusions by the Governing Body (GB.285/PV);

-  a communication dated 14 October 2002 with which the International Confederation of Free Trade Unions (ICFTU) submitted to the ILO fresh documentation referring to the continuing massive recourse to forced labour by military authorities in Myanmar, a copy of which was transmitted to the Government on 8 November 2002 for such comments as it may wish to present on the matters raised therein.

2. Information available on the observance of the Convention by the Government of Myanmar will again be discussed under three main 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; and (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 voluntarily, 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. The Committee observes that, as at the end of November 2002, 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 had still not been made, nor had any draft law proposed or under consideration for that purpose been brought to the knowledge of the Committee. In its previous observation, the Committee noted that legislative powers were exercised by the Government in June 2000 and February 2001 when it adopted the "Judiciary Law, 2000" and the "Attorney-General Law, 2001". The Committee once again expresses the hope that the Village Act and the Towns Act will at last be brought into conformity with the Convention.

5. In its observation in 2001 the Committee noted, however, that, although the Village Act and Towns Act still needed to be amended, an "Order directing not to exercise powers under certain provisions of the Town Act, 1907, and the Village Act, 1907" (No. 1/99), as modified by an "Order Supplementary Order No. 1/99" dated 27 October 2000, could provide a statutory basis for ensuring compliance with the Convention in practice, if given bona fide effect 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, called 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

6. 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.

7. Absence of specific and concrete instructions. In its observation in 2001, the Committee noted that, 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.

8. In its previous observation, the Committee noted that in its report the Government only referred to a directive issued on 1 November 2000 by the State Peace and Development Council (SPDC) "instructing all concerned authorities to strictly abide by the Orders issued by the Ministry of Home Affairs", i.e. Order No. 1/99 and its Supplementary Order. The Committee noted from the report of the High-Level Team (HLT) that, at the time of drafting its report (in October 2001), the HLT had only received three instructions in Burmese issued by various military commanders to units under their command. Two of these instructions did not contain any specifications either of the kinds of tasks for which the requisition of labour was prohibited nor the manner in which the same tasks were henceforth to be performed. The third instruction issued by the NaSaKa and dated 22 July 2001 provided another example of the blurring of the borderline between compulsory and voluntary labour and of action which in the last resort is limited to the issue of wage payment, contrary to the specific indications in paragraph 539(b) of the report of the Commission of Inquiry.

9. In the Government’s report received on 9 September 2002, the Government only refers to "explanations" of Order No. 1/99 and its Supplementary Order, mentioned in paragraph 5 above, that were made "at the offices of the Peace and Development Councils at various levels and also the offices of the General Administration Department throughout the country". The Government also indicates that the Orders were circulated to all ministries, including the Ministry of Defence, "for issuance of further directives to all units under its command". In its report transmitted on 27 November 2002, the Government indicates that "explanations" of the Orders were made at the offices of the Department of Justice and to the police forces and township courts. The Government has not supplied any further details about the "explanations" or the "further directives" referred to, nor has it made any further reference to the directive issued on 1 November 2000 by the SPDC, which it mentioned in its 2001 report.

10. The Committee notes the report "Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)" (ILO document GB.285/4 and addenda), which includes, in Appendix I, a summary of activities carried out by the ILO interim Liaison Officer. The summary, at paragraph 25 of Appendix I, refers to a meeting the interim Liaison Officer had on 23 August 2002 with the Implementation Committee "in order to review developments since the HLT visit [in September and October of 2001]". At that meeting, the Deputy Minister for Labour indicated that:

On two occasions since the visit of the HLT, a number of teams headed by directors in the Department of Labour had visited the field to assess the situation and explain the Orders to the people of the area. As was explained by another member of the [Implementation] Committee, however, these teams did not generally meet with local military commanders.

The Implementation Committee stated further that:

… in addition to being distributed on paper in English and Burmese, the Orders had been announced publicly by town criers, and meetings had been called at which verbal explanations had been given to the people in the language that they understood, including various ethnic languages. Regarding additional instructions, none had been issued since the visit of the HLT, but further briefings had been given to administrative officials called to Yangon.

11. In its report transmitted on 27 November 2002, the Government, in referring to visits by field observation teams in 2002, states only that during the visits the teams "left necessary guidance to the authorities". The Government has not supplied information in any greater detail regarding the content of the "explanations", "briefings", or "guidance" which it states it provided in conjunction with the dissemination of Order No. 1/99 and its Supplementary Order.

12. Before the ILO Governing Body at its 285th Session in November 2002, a representative of the Government stated that "necessary directives and instructions" were issued to all the ministries and departments concerned including the Ministry of Defence. The representative did not provide information in any greater detail.

13. Thus, accepting that the Government has undertaken some distribution of instructions, nonetheless, 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 they will, inter alia, cover each of the following:

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

-  construction or repair of military camp/facilities;

-  other support for camps (guides, messengers, cooks, cleaners, etc.);

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

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

-  cleaning/beautification of rural or urban areas;

-  the supply of materials or provisions of any kind. The prohibition of requisition also must apply to demands of money (except where due to the State or to a municipal or town committee under relevant legislation) since in practice, demands by the military for money or services are often interchangeable.

14. Publicity given to orders. In its previous observation, the Committee noted the allegation made by the International Confederation of Free Trade Unions (ICFTU) in its communication dated 29 November 2001 that:

Indeed, many reports included herewith confirm that, in certain parts of the country at least, Order 1/99, its Supplementary Order and other relevant legal texts had been widely publicized. Reports abound in the ICFTU’s evidence of meetings organized in villages by the authorities to this effect, ahead of the ILO’s visit. As often as not, they had been run by senior SPDC officials dispatched from regional commands or even Rangoon.

… In actual fact, villagers frequently - if not always - had to pay the costs of these "information gatherings", such as gasoline or food and drink for visiting SPDC officials. As for the "Orders" themselves, they were publicized, quite cynically, through what can only be described as "forced distribution", whereby the so-called "Green Book" issued by the authorities on the subject had to be bought at 1,000 kyats or more per copy, with typically one to eight copies forcibly sold to each village; the villagers were also forced to purchase foam boards on which the "Orders" had to be posted.

15. The Committee invited the Government to comment on this allegation. The Committee notes that the Government has not commented on this allegation in any of its most recent reports and communications. Instead the Government reports in various documents, either on its actions or its expressed intentions in relation to publicity of orders:

-  In its report received on 9 September 2002, the Government states that Order No. 1/99 and its supplementing order have been circulated to all state organs and ministries including the Ministry of Defence.

-  In its report transmitted on 27 November 2002, the Government indicates that the Orders were posted at the offices of the Peace and Development Councils at the various levels, at the offices of the General Administration Department, the Department of Justice and with police forces and township courts.

-  In a communication of 15 November 2002 from the Director-General of the Department of Labour to the ILO Liaison Officer (Appendix to GB.285/4 (Add.2)) it was stated that, within a matter of days, translations of Order No. 1/99 and its Supplementary Order in Shan, Mon, and Kayin languages would be disseminated, and that translations into Kayah, Chin, and Kachin languages were in progress and would be published very soon. It also stated that a pamphlet on forced labour was being prepared in order to publicize the Convention. In a report dated 18 November 2002, the Government attached copies of what it states are translations of the Orders into the Mon, Shan, and Kayin languages.

-  In a report transmitted on 27 November 2002, the Government states, at paragraph 3, that the translated versions would be distributed in the very near future, that it now planned to translate the orders into Chin, Kachin, and Kayah, and that it was initiating necessary steps to publicize the provisions of the orders in pamphlet form and by brochure, press release, etc.

16. The Committee notes this information and trusts that the Government will honour the indications it has given in relation to publicity of ordes and report action on those items. The Committee also requests that the Government respond to the earlier allegation made by the ICFTU in its communication dated 29 November 2001 and in addition, to respond to the recent indications of the ICFTU in its communication dated 14 October 2002, that:

… in certain areas, villagers … indicate that the practice [of forced labour] has never stopped and they had, in fact, never heard of any "Orders" from Rangoon to the effect that forced labour was now banned. This is clearly indicated in a number of interviews by forced labour victims provided by the Federation of Trade Unions - Burma (FTUB) and EarthRights International (ERI).

17. A June 2002 report by EarthRights International, which is appended to the communication of the ICFTU, is based on scores of interviews with villagers of Shan State, Karenni State, Karen State, Pegu Division, Mandalay Division, and Tenasserim Division during the period from January to May 2002. It alleges that:

Few villagers are familiar with Order No. 1/99 … More villagers are aware of announcements that the practice of forced labour is to have ended, but many villagers still have never heard of such proclamations - formally or informally.

Further documentation supplied by the ICFTU also refers to:

… announcements regarding no more forced labour that had created confusion and fear among the population. This had resulted in an atmosphere that was not conducive to encouraging villagers to make complaints about ongoing forced labour. To date, ERI had yet to speak with a villager who knew how to make a complaint, much less one who had attempted to make a complaint about ongoing forced labour.

The Committee awaits the comments of the Government on these allegations.

18. Budgeting of adequate means. In its previous observation, the Committee noted that the issue of allocating adequate budgetary resources to recruit voluntary wage labour for public activities, which have been based on forced and unpaid labour, was taken up by the HLT with the Myanmar authorities. On a number of occasions during its field trips and in Yangon, the HLT requested details on alternative means of obtaining required labour or services now that forced labour was prohibited. The HLT also inquired about any changes in budgetary arrangements. The Committee noted that it appeared from paragraphs 63 to 66 of the report of the HLT that at the time the report was finalized (29 October 2001), the HLT had not received information allowing it to conclude that the authorities had indeed provided for any real substitute for the cost-free forced labour imposed to support the military or for public works projects.

19. The Committee notes that the interim Liaison Officer (discussed below) took up the issue of allocating adequate budgetary resources to recruit voluntary wage labour with the Implementation Committee, during his meeting with that Committee on 23 August 2002. The summary of the meeting (GB.285/4, Appendix I, paragraph 25) states:

"Regarding evidence of budgetary provision for the payment of labour in public works projects, it was again explained that according to the Myanmar budgetary system there was no separate budget line for labour costs, and it was therefore not possible to provide such evidence."

20. The Committee notes the statement of the Government in paragraph 5 of the supplementary progress report transmitted on 27 November 2002, that:

As regards the budget allocation, … there is always a budget allotment for each and every project. The labourers and all persons employed under the respective projects can enjoy the prevailing wages rate of the respective areas. In the light of this, we are confident that we have fully implemented the measures regarding the budgetary allotments …

21. The Committee once again expresses the hope 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".

22. Monitoring machinery. In its previous observation, the Committee noted that the Government referred to the creation of a Ministerial Level Committee and a National Level Implementation Committee which are not only to monitor the adherence to law by local authorities, members of the armed forces and other public service personnel, but also to ensure that the local authorities and the people at the grass-roots level are fully aware of the aforementioned Orders nationwide. The Government also referred to field observation teams (FOTs), respectively led by Heads of the Departments under the Ministry for Labour and comprising of responsible personnel from the General Administration Department, Myanmar police force and the Department of Labour, which it stated had been dispatched to various areas to investigate the situations relating to the practice of forced labour and to observe the public awareness of these Orders. The Government stated that these FOTs would make frequent visits to all areas within the country.

23. In its supplementary progress report transmitted on 27 November 2002, the Government again indicates that it has formed a Ministerial Committee with regard to ILO matters, headed by the Minister for Labour, and an Implementation Committee, headed by the Deputy Minister for Home Affairs, to monitor the implementation of Order No. 1/99 and its Supplementary Order. The Government also indicates, both in paragraph 6 of this report and in its previous report dated 18 November 2002, that the authorities have decided to include a high-ranking military official from the Office of the Inspector General under the Ministry of Defence to serve as a member of the Implementation Committee. The Committee notes that this inclusion would be a helpful and important addition to the Implementation Committee.

24. In its supplementary progress report transmitted on 27 November 2002, the Government refers to visits by FOTs headed by the members of the Implementation Committee to disseminate Order No. 1/99 and its supplemental order, and it refers to inquiries made by the teams about whether the Orders were made known to the public and whether there were any complaints on the exaction of forced labour. At paragraph 4 of its report, the Government indicates that a list of these visits was included in the attachment to the report. The attachment consists of a list of monthly visits by individual ministers to various townships and to visits by individual members of the Implementation Committee, most of which appear to have occurred in August, September, and October of 2002. At paragraph 7 of its report, the Government states that measures were carried out in the course of the visits, which included: determining first-hand the awareness and understanding of the Orders by the local populace; and assessing the effectiveness of the Orders and of measures taken by regional authorities at the state/division, township, and village tract levels.

25. ILO Liaison Officer. The Committee notes that, pursuant to an understanding concluded on 19 March 2002, the Government agreed to the appointment of an ILO Liaison Officer in Myanmar, as a step towards the establishment of a continued ILO presence in the country capable of contributing effectively to the objective of eliminating forced labour. The mandate of the Liaison Officer has been defined as covering all activities relevant to the objective of ensuring the prompt and effective elimination of forced labour in the country. Pursuant to this agreement, an interim Liaison Officer was appointed from 6 May 2002 to October 2002. During that time the interim Liaison Officer:

-  made initial contacts in May 2002 with government officials;

-  held a number of meetings with various parties during the period from June to October of 2002;

-  conducted a field trip to Tanintharyi Division (GB.285/4, paragraph 6).

On 7 October 2002, a permanent ILO Liaison Officer took up her appointment in Yangon and already has had a range of contacts and meetings with government officials and others during October and November of 2002 (GB.285/4 (Add.), paragraph 1).

26. The Government makes several comments in relation to the field trip undertaken by the interim Liaison Officer to the Tanintharyi Division in September 2002. In the Government’s report received on 17 October 2002, the Government refers to a visit by a FOT "composed" of government officials and the ILO interim Liaison Officer. The Government states that the report of the visit, submitted to the Ministry for Labour by the FOT, mentioned that "there are no instances of forced labour practices in the region, and that no legal action has to be taken against anyone under Penal Code 374 for infringement of Order No. 1/99." The Government has not supplied a copy of the report it refers to.

27. The report on Developments (GB.285/4) at paragraphs 13 and 14, also refers to an FOT which "consisted" of the ILO interim Liaison Officer, his assistant, and a senior official from the Ministry of Labour which visited the Tanintharyi Division, and indicates that the purpose of the trip "had not been to conduct investigations into specific allegations, but was rather to gain an impression of the root causes of the problem (such as the economic situation) and explore the possibilities for ILO assistance in solving the problem".

28. Whilst welcoming the interaction between the ILO Liaison Officer and the Implementation Committee and the FOTs, the Committee hopes that there will not be confusion between the differing roles and functions of the Liaison Officer from that of the government bodies. It is important that the FOT’s actions are not regarded as "comprising" the ILO Liaison Officer as the function and actions of each of the respective bodies should remain separate and not become blurred.

29. The Committee notes these indications given by the Government of its endeavours to abolish the practice of forced labour throughout the country. The Committee notes, however, that these endeavours need to be placed in the context of the absence of specific and concrete instructions as well as the lack of budgetary allocations for the replacement of forced and unpaid labour.

  B. Information available on actual practice

30. In its previous observation, the Committee took note of the "Findings as regards the impact on the realities of forced labour of the steps taken to implement the Orders", set out in paragraphs 54 to 58 of the October 2001 report of the HLT. The Committee also noted the analysis by the HLT in paragraphs 59 to 62 of its report, in which it identified the obstacles to the more effective eradication of forced labour in Myanmar, particularly the "self-reliance" policy of the army, the uncertainty as regards substitute financial/practical arrangements, and institutional obstacles.

31. The Committee, in its previous observation, also noted the communication of the ICFTU dated 29 November 2001, which included allegations that the military authorities of Burma had continued to resort to forced labour on a massive scale. In support of its claims, the ICFTU enclosed nearly 30 reports and other documents, totalling over 100 pages, and which often included precise indications of time and place, any military battalions or companies involved, and the names of the commanders. The Committee hoped that the Government would examine the indications given by the ICFTU and supply detailed information on any action taken thereupon, as well as upon the report of the HLT, to prosecute all persons found responsible for ordering forced labour, and that it would supply full information on the action taken. In its latest reports, the Government has not supplied the information requested by the Committee.

32. The Government’s view. In its earlier report on the application of the Convention transmitted on 30 September 2001, the Government states that the elimination of forced labour "will be the main priority concern of the Government". Before the ILO Governing Body at its 285th Session in November 2002, the Government representative stated that, in comparing the situations in 2000 and 2001 to the one in November 2002, one would definitely say that improvement and progress in Myanmar has been made over the years, but he did not explain in specific terms the improvement or progress he considered had been made. In its recent report transmitted on 27 November 2002, the Government states that the Implementation Committee "will carry out its endeavours to eradicate forced labour". Thus, the Government still gives no indications as to the progress and results so far achieved.

33. Reports on meetings of ILO liaison officers and government officials. The Committee notes that the report on developments (GB.285/4) refers to a number of communications between the Liaison Officers and government officials on a range of issues including:

-  A meeting with the Minister for Home Affairs on 1 July 2002 concerning alleged abduction of teenagers in Yangon who were said to have been forced to work as porters, which was subsequently a matter for discussion by the ILO Governing Body at its 285th Session in November 2002 (GB.285/PV).

-  A letter dated 24 July to the Minister for Labour (reproduced in GB.285/4, Appendix V) and a subsequent meeting on 30 July 2002, in which the interim Liaison Officer drew attention to specific allegations of forced labour contained in a report by Amnesty International (dated 17 July 2002 entitled "Myanmar: Lack of security in counter-insurgency areas"), and recommended that the Implementation Committee dispatch teams to the various areas to start investigating these allegations as well as also investigating other allegations of a worsening forced labour situation in parts of northern Rakhine State.

-  A letter dated 4 October 2002 from the interim Liaison Officer to the Implementation Committee giving the details of a complaint (without identifying the source), that vehicle owners were being requisitioned along with their vehicles to transport troops and supplies in the Kyaikto area as well as work on the construction of an artillery base, and requesting that the Committee investigate this matter urgently and inform the ILO of the result.

-  A meeting with the Implementation Committee on 23 August 2002 at which the interim Liaison Officer was briefed on progress that had been made since the last meeting in May. The Implementation Committee indicated that it was aware of various allegations of forced labour, including those contained in the report by Amnesty International, but stated there was no information from the field about any such cases and it considered that most of the allegations were exaggerated or had been fabricated by expatriate groups, but it would, however, take note of the point made in the report of the ILO HLT and look into the situation in remote areas.

-  A meeting with the Implementation Committee on 9 November 2002, when the Liaison Officer was able to follow up on the allegations transmitted by the interim Liaison Officer in letters dated 23 July, 7 August, and 4 October of 2002. The Committee briefed the Liaison Officer on the various places in the country that its members had travelled to in order to disseminate information and learn about the situation on the ground. As regards the specific allegations, the Implementation Committee indicated that the situation in northern Rakhine State had been thoroughly investigated, and the allegations had been found to be false, as had the allegations concerning requisition of vehicles in Mon State. No investigations had been made of the Amnesty International allegations, or the allegations relating to the construction of an artillery base in Mon State. The Liaison Officer stressed the need for written reports of such investigations, indicated that the information provided by the Implementation Committee concerning northern Rakhine State was not consistent with a separate response given by the authorities to the United Nations High Commissioner for Refugees (UNHCR) on the same issue, and also raised a number of new allegations that had been communicated which she indicated the Committee should investigate. These new allegations, some details of which had been communicated to the Implementation Committee by the Liaison Officer in advance of the meeting, related to the forced recruitment of child soldiers, the killing of a trade unionist whilst being forced to work as a porter, a number of other specific allegations contained in information recently submitted to the Committee of Experts by the ICFTU, as well as information on alleged forced labour in two towns in Bago Division. The Liaison Officer transmitted further details of these allegations to the Implementation Committee in a follow-up letter dated 14 November.

-  A meeting with the Minister for Foreign Affairs on 12 November 2002, at which the Minister indicated that the authorities had no policy of using forced labour, although they realized that the practice may be continuing in remote areas and they understood the need for prosecution of offenders.

-  A meeting with Secretary-1 of the State Peace and Development Council (SPDC) on 14 November 2002, at which the Secretary stated that the authorities did not condone forced labour and had given clear instructions prohibiting it, although it was possible that such practices still occurred in remote areas. The Liaison Officer stressed the need to improve the existing system for investigating allegations and to find a way to investigate allegations concerning the army.

34. The addendum to the report on developments refers to a meeting of the Liaison Officer on 30 October 2002 with Daw Aung San Suu Kyi, the General-Secretary of the National League for Democracy (NLD). According to the report:

Daw Aung San Suu Kyi welcomed the appointment of an ILO Liaison Officer in Yangon, and hoped that the NLD would have regular contact with the Liaison Officer. She felt that while substantial progress on the forced labour issue ultimately required progress in the reconciliation process, the ILO might nevertheless be able to bring about improvements in some areas. The NLD had noted some decline in the use of forced labour, but also had information on continued recourse to the practice, including cases that she had come across herself.

35. The Committee welcomes the dialogue which the Government is having with the ILO Liaison Officer and hopes that the Government will rigorously carry out investigations into the allegations indicated by the Liaison Officer and will provide written reports including any prosecutions undertaken to enforce Order No. 1/99. In this way the Government may be able to demonstrate that it is truly implementing its expressed commitment to eliminate forced labour in the country.

36. The ICFTU communication. In its communication dated 14 October 2002, the ICFTU indicated that the information supplied therewith covers roughly the period October 2001 to September 2002. This information from a number of sources indicates very serious ongoing allegations related to forced labour. The communication describes cases from, among others, Chin State, Shan State, Mon State, Karen State, Arakan State and Irrawaddy and Tenasserim Divisions. The ICTFU stated that based on this information, it:

…considers that forced labour continues to be imposed in Burma by military and civilian authorities alike and that this forced labour is regularly, if not always, accompanied by egregious violations of human rights, including child labour, murder, assassination, torture, rape, beatings, looting or confiscation of property, denial of food, medical treatment, rest and shelter and many other violations … All available evidence in fact clearly demonstrates that, after the ILO’s High-Level Team left the country in October 2001, forced labour has fully resumed in all parts of the territory previously concerned by this practice.

37. The ICFTU pointed out that its communication was supported by numerous documents, including scores of interviews of forced labour victims. It stated:

Our evidence, totalling over 350 pages, describes, as always, hundreds of incidents of forced labour, involving thousands of victims and is supported by hundreds of written "forced labour orders". Most of the forced labour is for the direct benefit of the army, such as construction and maintenance of camps, barracks, fences and other army installations, forced labour on army agricultural property (mostly confiscated earlier from civilians). Part of it also concerns forced labour on or in connection with industrial projects operated by foreign companies. One report describes forced cultivation of opium, imposed by the army on the civilian population in Shan State.

38. The documents appended to the communication of the ICFTU include:

-  ICFTU documentation concerning alleged murder by army elements in August 2002 of U Saw Mya Than, an official of the FTUB (Federation of Trade Unions - Burma) and the KEWU (Kawthoolei Education Workers Union), who had been forcibly recruited as a porter for the army’s Light Infantry Battalion (LIB) No. 588, led by one Major Myo Hlaing. The ICFTU considered that the role of U Saw Mya Than as a trade union official and human rights activist was directly linked to his forcible recruitment as a porter and subsequent murder by the army (paragraph 3).

-  A situation report from Kya Inn-Seik Gyi and Kawkereik Townships and Dooplaya District, in Karen State based on interviews conducted with villagers, which details specific allegations involving the exaction of forced labour by SPDC soldiers from Division 88.

-  The June 2002 report by EarthRights International (ERI), "We are not free to work for ourselves: Forced labor and other human rights a in Burma (January 2002-May 2002)", based on 77 interviews concerning the practice of forced labour, conducted with villagers of Shan State, Karenni State, Karen State, Pegu Division, Mandalay Division, and Tenasserim Division during the period from January to May of 2002. The allegations in the report include findings that during that period, portering and other forms of forced labour continued in circumstances involving grave human rights abuses, that few villagers were familiar with Order No. 1/99, and that the use of fees to extort money continued to increase. The report included a very concerning allegation that the aftermath of Order No. 1/99 may have made the practice of forced labour more insidious and difficult to eradicate in the future. For example, ERI indicated that it found: efforts by the military authorities to "document" that forced labour had ended by pressuring villagers to give false testimony in a variety of forms that the practice had ended despite its continuance; threats of retribution by military commanders and soldiers, including the threat of being killed, if villagers told others that forced labour was continuing; changes in vocabulary surrounding forced labour in some areas, such as the use of the "helper" (a-ku-ah-nyi) instead of "forced labour" (loy-ah-pay); payments that now accompanied a few cases of forced labour, but villagers were still not able to refuse to work.

-  Excerpts from an October 2002 report by the Documentation and Research Centre of the All Burma Students’ Democratic Front, which includes allegations of forced labour in Chin State, Irrawaddy Division, Rakhine State, Shan State and Tenasserim Division.

-  Excerpts from the Narinjara News concerning allegations of forced labour in Rakhine State.

39. The ICFTU documentation included a further supplement to the October 2001, namely a report of EarthRights International "More of the same: Forced labor continues in Burma". The report of EarthRights concerns alleged forced labour along the Yadana and Yetagun pipelines including allegations involving:

-  military units providing security for two natural gas pipeline projects using conscripted forced labour and portering of villagers for construction or repair of military camps/facilities; national or local infrastructure project (including clearing roads, building bridges, etc.) in relation to the provision of military security;

-  allegations that the consortiums which operate these pipelines which include TotalFinaElf (formerly Total) of France and Unocal of the United States, Premier Oil of the United Kingdom, use the Burmese military to provide security for their projects despite specific knowledge that the military has used and would continue to use forced labour;

-  allegations that in about April 2002, civilians in at least 16 villages in Tenasserim Division (southern Burma) were forced to undertake construction work on a road between Kanbauk and Maung Ma Gan.

The documents appended to the ICFTU communication also included a copy of The Mon Forum (Issue No. 7/202, 31 July 2002), a publication of the Human Rights Foundation of Monland, in southern Burma, which includes similar allegations in relation to forced labour used in relation to the natural gas pipeline projects.

The Office has received correspondence from TotalFinaElf dated 31 October 2002 essentially denying the accusations.

40. The Committee requests the Government to examine the observations of the ICFTU which are specifically detailed in its report and attachments and supply detailed information on its investigations and any action taken thereupon to prosecute persons found responsible for ordering forced labour and for any concomitant crimes.

III.  Enforcement

41. 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.

42. In its observation published in 2001, the Committee had noted that point 4 of the directive dated 1 November 2000 from the State Peace and Development Council to All State and Divisional Peace and Development Councils (referred to by the Government in its 2001 report), provides for the prosecution of "responsible persons" under section 374 of the Penal Code, and that a similar clause is included in point 3 of an instruction dated 27 October 2000, addressed by the Director-General of the Police Force to all units of the police force.

43. The Committee again observes that no action under section 374 of the Penal Code has been brought to the knowledge of the Committee and that the report by the Government of asserted administrative action is inadequately documented and in any event does not fulfil the Convention requirements.

44. In its communication dated 14 October 2002, the ICFTU, in commenting on allegations demonstrating that forced labour had fully resumed following the visit by the High-Level Team in October 2001, stated:

Hence, in certain areas, villagers complain that forced labour has resumed with the same intensity, irrespective of Order No. 1/99 and Supplementary Order to No. 1/99, while in others, villagers indicate that the practice has never stopped …

… Moreover, many incidents demonstrate clearly that field commanders and other army officers have only contempt for villagers’ pleas to be spared from forced labour on the grounds of Order No. 1/99 and its Supplementary Order. Hence, in Kyaik Don (Dooplaya District, Karen State), the Commander Ohn Myint, in charge of army Division 88, is quoted in one of our reports as saying: "If some of you do not agree and are not satisfied with my arrangements for requesting villagers to work for us, you can submit it or inform about it to media if you dare. I am General Khin Nyunt’s cousin".

The Committee requests the Government to comment on these matters, indicating in particular how any investigations into the allegations are being conducted, by the military themselves or by the judiciary, and any measures taken to protect from reprisals both witnesses having testified, and victims of forced labour seeking redress.

The Committee also requests the Government to give consideration to the establishment of the Office of Ombudsman or similar mechanism having the mandate and the necessary means to receive complaints of forced labour and conduct investigations as suggested by the HLT in 2001.  The Government may wish to have dialogue with the Liaison Officer on this issue.

*  *  *

45. In summary, the Committee notes the following namely:

-  measures recently announced by the Government which include the translation of Order No. 1/99 and its Supplementary Order into Shan, Mon, and Kayin languages;

-  impending translation of the Orders into Kayah, Chin, and Kachin languages;

-  the intent to disseminate these translated versions;

-  the expansion of the Implementation Committee to include a high-ranking military official from the Office of the Inspector General under the Ministry of Defence;

-  the preparation of a pamphlet on forced labour in order to publicize the Convention;

-  the indication of the Government in paragraph 8 of its report dated 27 November 2002 that "an action plan calling for more effective and enforced measures to be adopted will be coordinated with the ILO Liaison Officer".

46. Whilst these actions are to be commended, at the same time the Committee recalls that the ILO Governing Body, at its 285th Session in November 2002 (GB.285/PV), welcomed the words of the Government but awaited the concrete action that must follow, and that the action it required of the Government is the eradication of forced labour, the bringing to justice of those responsible for perpetrating the acts of forced labour, and changing the legal process to give effect to the foregoing.

47. The Committee indicates that in spite of the indications and rhetoric of the Government, none of the three recommendations formulated by the Commission of Inquiry and accepted by the Government have so far been met. Despite longstanding promises, as well as the Government’s assured good will, the Village Act and Towns Act have not yet been amended. While Order No. 1/99, as supplemented, has been widely publicized, by itself the Order has not stopped the exaction of forced labour, in particular by the military. There is no indication that the necessary specific and concrete instructions and budgetary provisions have been adopted or even prepared with a view to effectively replacing forced labour by offering decent wages and employment conditions to freely attract any workers needed. Finally, there is no indication that any person responsible for the exaction of forced labour and often concomitant crimes was sentenced or even prosecuted under section 374 of the Penal Code or any other provision, in conformity with Article 25 of the Convention.

[The Government is asked to supply full particulars to the Conference at its 91st Session.]