Observación (CEACR) - Adopción: 2006, Publicación: 96ª reunión CIT (2007)

I.     Historical background

1. The Committee, as it noted in its previous observation, has been commenting on this extremely serious case since its first observation more than 30 years ago. The grave situation in Myanmar has also been the subject of overwhelming criticism and condemnation in the Conference Committee on the Application of Standards of the International Labour Conference on ten occasions between 1992 and 2006, in the International Labour Conference at its 88th Session in June 2000 and again at its 95th Session in 2006, and in the Governing Body, by governments and social partners alike. The history is set out in detail in the previous observations of this Committee in more recent years, particularly since 1999.

2. The major focus of the criticisms by each of the ILO bodies relates to the outcome of a Commission of Inquiry appointed by the Governing Body in March 1997 following a complaint submitted in June 1996 under article 26 of the Constitution. The Commission of Inquiry concluded that the Convention was violated in national law and in practice in a widespread and systematic manner, and it made the following recommendations:

(1)   that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention;

(2)   that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and

(3)   that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced.

The Commission of Inquiry emphasized that, besides amending the legislation, concrete action needed to be taken immediately to bring an end to the exaction of forced labour in practice, in particular by the military.

3. In its previous observations the Committee of Experts identified four areas in which measures should be taken by the Government to achieve this outcome:

–           issuing specific and concrete instructions to the civilian and military authorities;

–           ensuring that the prohibition of forced labour is given wide publicity;

–           providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and

–           ensuring the enforcement of the prohibition of forced labour.

4. The flagrant continuing breaches of the Convention by the Government and the failure to comply with the recommendations of the Commission of Inquiry and the observations of the Committee of Experts and other matters arising from the discussion in the other bodies of the ILO, led to the unprecedented exercise of article 33 of the Constitution by the Governing Body at its 277th Session in March 2000, followed by the adoption of a resolution by the Conference at its June 2000 session.

II.    Developments since the Committee’s last observation

5. The Committee notes the documents submitted to the Governing Body at its 295th and 297th Sessions (March and November 2006) on developments concerning the question of the observance by the Government of Myanmar of Convention No. 29, as well as the discussions and conclusions of the Governing Body during these sessions, and of those of the Conference Committee on the Application of Standards and the Conference Selection Committee during the 95th Session of the International Labour Conference in June 2006.

6. The Committee also notes the Government’s report, received in communications on 29 September and 23 October 2006, and the comments by the then International Confederation of Free Trade Unions (ICFTU) (now the International Trade Union Confederation (ITUC)), contained in a communication, dated 31 August 2006 and received on 5 September 2006, which was accompanied by a number of attached reports that document the persistence in 2006 of the use of forced labour in Myanmar. In summarizing the material forwarded, the ICFTU reports that in 2006:

… the overall picture continues to be very grim. This report includes evidence of government-imposed forced labour in nearly every State and Division of the country, ranging from forced portering, forced labour in “development projects”, construction or maintenance of infrastructure or army camps, forced patrolling and sentry duty, clearing or beautification of designated areas, child labour including the forced conscription of child soldiers, sexual slavery, human minesweeping, and confiscation of land, crops, cattle and/or money.

The communication of the ICFTU was forwarded to the Government by letter dated 31 August 2006 together with the indication that, in accordance with established practice, the communication of the ICFTU would be brought to the attention of the Committee together with any comments that the Government would wish to make in response. The Government has not responded in its report to this very troubling information, and the Committee requests the Government to do so in its next report.

7. In its previous observation, the Committee noted comments from the ICFTU contained in a communication dated 31 August 2005 received on 12 September 2005, which was accompanied by some 1,100 pages of documents from many sources, reporting on the persistence in 2005 of the use of forced labour in Myanmar. The Committee requested the Government to respond to this information in its report submitted in 2006. The Committee notes that the latest report received from the Government does not contain a response as requested, and the Committee therefore once again asks the Government, in its next report, to respond to this earlier information, in addition to the communication referred to above from the ICFTU in 2006.

III.   Addressing the recommendations of the Commission of Inquiry

8. As noted above, the Committee has in its previous observation set out the matters that the Government needs to address as a consequence of the Commission of Inquiry and its findings and recommendations. The Committee observes that these matters remain unaddressed, and that it is therefore bound to repeat them in detail.

(1)  Ensuring the enforcement of the prohibition of forced labour – monitoring and complaints machinery

9. The Committee has previously noted that measures taken by the Government to ensure the enforcement of the prohibition of forced labour included the establishment of seven field observation teams empowered to carry out investigations into allegations of the use of forced labour, the findings of which were submitted to an organ called the Convention No. 29 Implementation Committee. It also previously noted that on 1 March 2005, the Office of the Commander-in-Chief (army) established a “focal point” in the army headed by a Deputy Adjutant-General and assisted by seven grade 1 staff officers, which the Government indicated to the Liaison Officer a.i. was intended “to facilitate cooperation with the ILO on cases of forced labour concerning the military” (GB.292/7/2(Add.), paragraph 3). In its previous observation the Committee, noting reports of the Liaison Officer a.i. and other information, noted with extreme concern that the assessments made by these organs appeared to lack independence and credibility.

10. In its previous observation the Committee also noted with concern that, according to a report submitted for discussion to the 294th Session of the Governing Body in November 2005 (GB.294/6/2), “recent developments have seriously undermined the ability of the Liaison Officer a.i. to perform his functions” (paragraph 7), and that, while he had continued to receive complaints from victims or their representatives concerning ongoing forced labour or forced recruitment, he was unable to refer these cases to the competent authorities as he did in the past, in part because of the Government’s policy of prosecuting victims for allegedly false complaints of forced labour (paragraph 8).

11. The Committee notes the following matters:

–           that, according to a report on recent activities of the Liaison Officer a.i., submitted “for debate and guidance” to the 295th Session of the Governing Body in March 2006, the Liaison Officer a.i. wrote on 7 December 2005 to the designated army focal point for the ILO to request a meeting, and that no response was received to this request (GB.295/7, paragraph 8);

–           that in November 2005 the Government, through the Minister for Labour in Yangon and the Permanent Representative in Geneva, rejected the proposal of the International Labour Office (“Office”) for a complaint mechanism involving a facilitator (GB.295/7, paragraph 15), and that it has since reaffirmed its rejection of that proposal;

–           that the Office subsequently developed two alternative options: one, known as Option-I, entails a proposal to build up the capacity of the Office of the ILO Liaison Officer a.i. and provide sufficient legal guarantees to credibly address the complaints received and sufficient resources and personnel to meet its additional responsibilities (GB.297/8/1, paragraph 16 and Appendix III). The second option, known as Option-II, is a proposal for a “Joint Panel” mechanism, which would involve a panel composed of two members with required credentials appointed by the two sides, and a third person appointed by an unimpeachable institution to arbitrate in cases of possible disagreement, and which would confidentially address complaints submitted by alleged victims and make a prima facie determination of the validity of the complaint;

–           that the Government rejected the proposal of the Office for a Joint Panel mechanism, the so-called Option-II, during discussions between representatives of the Office and the Minister for Labour in Yangon in March 2006 (GB.295/7, paragraph 22), and it reaffirmed its rejection in the Conference Committee on the Application of Standards in June 2006;

–           that the Government representative announced in the Special Sitting of the Conference Committee in June 2006, the willingness of the Government to put into place, “on an experimental basis”, a six-month moratorium on the continued implementation of its policy of prosecuting complainants who lodge “false allegations” of forced labour. In addition, that during the period of the moratorium the Government would cooperate with the Office in working out a mechanism under the so-called Option-I, the proposal for a system built upon the framework of the existing Office of the Liaison Officer a.i.;

–           that the Conference Committee in its conclusions of June 2006 indicated that the proposal of a moratorium was “late and limited”, and that “words had to be urgently confirmed and completed by deeds”, including by the cessation of prosecutions currently under way, and that the government authorities needed to immediately enter into discussions with the ILO, with a view to establishing as soon as possible a credible mechanism for dealing with complaints of forced labour;

–           that the Conference Selection Committee, to which the Conference referred the matter for a separate examination, indicated that a real test of cooperation from the Government would entail, among other things, steps taken: to immediately enter into discussions with the ILO, with a view to establishing as soon as possible a credible mechanism for dealing with complaints of forced labour. Further, with regard to its moratorium on prosecutions of complainants, the Government should provide further details on how the moratorium would be applied so as to make it clear that anyone lodging a complaint during the moratorium would have immunity from any subsequent action being taken against them; and to demonstrate such that the moratorium would be considered strictly binding (GB.297/8/1, Appendix I);

–           that developments subsequently occurred in three prominent cases of government prosecutions: the release of Su Su Nway on 6 June 2006; the release on 8 July 2006 of Aye Myint from prison after his sentence was conditionally suspended; and the acquittal on 20 September 2006 of the three persons in Aunglan Township (Magway Division) of charges of making false complaints of forced labour, following withdrawal of the case by the authorities. As noted in the report on developments submitted by the Office to the Governing Body “for debate and guidance” during its 297th Session in November 2006 (GB.297/8/1, paragraph 5), the Liaison Officer a.i. reported that to his knowledge these developments resolved all the outstanding cases of prosecution or imprisonment of persons having an ILO connection (GB.297/8/1, paragraph 5);

–           that, during discussions in Yangon in October 2006 between the Minister for Labour and a specially designated working group, on the one hand, and representatives of the International Labour Office, it became clear that the Government was not prepared to accept so-called Option-I, the proposal by the Office for a complaint mechanism that involved strengthening the Office of the ILO Liaison Officer a.i. with adequate resources and staffing. Further, that contrary to previous expressions of willingness to consider Option-I, and notwithstanding a compromise proposal offered by the Office during the discussions in October, the Government signalled that it was willing to accept little more than a continuation of the present functioning of the Office of the ILO Liaison Officer a.i., as that mechanism was originally conceived and structured.

12. The Committee fully concurs with the views expressed by the Governing Body, as well as by the Conference Committee on the Application of Standards and the Conference Selection Committee, that it is imperative that the Government institute an effective complaint mechanism, such as any of the three already proposed by the Office, as a channel for the treatment of complaints that both protects the victims and leads to the prosecution, punishment and imposition of sanctions against those responsible for the exaction of forced labour, so as to ensure compliance with Article 25 of the Convention. This further requires that the Government permanently revoke its policy of prosecuting persons who complain that they are victims of forced labour, a policy which, in its implementation, defeats the very purpose of a complaint mechanism which depends for its effectiveness, in part, on the ability of victims of forced labour to lodge complaints without fear of reprisals, and that, instead, it take increased action to prosecute perpetrators of forced labour. The Committee on these issues also requests the Government to cooperate more closely and in good faith with both the Liaison Officer a.i. and the Office. The Committee considers that, in doing so, the Government will also thereby be demonstrating its readiness to seriously address the further matters necessitated by the recommendations of the Commission of Inquiry as set out in further detail below.

(2)  Need to amend the relevant legislative texts, in particular
the Village Act and the Towns Act, in order to bring them
into line with the Convention

13. This remains the position of the Committee. At the same time, the Committee has noted an “Order directing not to exercise powers under certain provisions of the Towns Act, 1907, and the Village Act, 1908”, Order No. 1/99, as modified by an “Order Supplementing Order No. 1/99”, dated 27 October 2000, and it has accepted that these provisions could provide a statutory basis for ensuring compliance with the Convention in practice. However, the Committee has made clear that this would require bona fide effect to be given to the Orders by the local authorities and by civilian and military officers empowered to requisition or assist with requisition under the Acts.

14. The Committee has indicated that the latter would necessitate two things:

–           issuing specific and concrete instructions to the civilian and military authorities; and

–           ensuring that the prohibition of forced labour is given wide publicity.

(3)  Issuing specific and concrete instructions to the civilian and
military authorities

15. On this topic the Committee in its previous comment noted references to a series of texts, instructions and letters made by the Government in its report of that year. It acknowledged that these communications appeared to be in part a response to previous Committee requests that instructions be transmitted to authorities in the military indicating that forced labour has been declared unlawful in Myanmar. However, the Committee noted that it had been given minimal and in most instances no information as to the content of the communications. It considered this to be a matter of real concern as the Committee had previously expressed that clear and effectively conveyed instructions were required to indicate the kinds of practices that constitute forced labour and for which the requisitioning of labour is prohibited, as well as the manner in which the same tasks could be performed without use of forced labour. The Committee has previously enumerated a number of tasks and practices that need to be specifically identified in this regard, and it does so once again:

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

–           construction or repair of military camps/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; and

–           the supply of materials or provisions of any kind, which must be prohibited in the same way as demands for money (except where due to the State or to a municipal authority under the relevant legislation) since, in practice, demands by the military for money or services are often interchangeable.

16. In its previous observation the Committee considered that the starting point for the eradication of forced labour was to give very clear and concrete instructions to the authorities of the kinds of practices that constitute forced labour. It observed that the lack of information, except for the content of a single communication, suggested that this did not appear to have been done. It did not appear to the Committee to be a difficult exercise to construct the content of written instructions that would take account of these concerns and include all the above elements.

17. Having regard to the Government’s expression of preparedness to continue cooperation with the ILO, the Committee suggested that the elaboration of such instructions could be the topic of such cooperation, and that this might, for example, be done through the Liaison Officer a.i. or some other similar ILO liaison. The Committee asked that in its next report the Government supply information about the measures it had taken on this point, and that it also supply copies of the precise texts of the letters and instructions to which it has referred and in addition a translated version of each.

18. The Committee notes that in its latest report the Government has not supplied any of the information requested, nor has it otherwise addressed the concerns of the Committee on this point. The Committee notes that, from the report of the proceedings recorded in the 95th Session of the Conference in June 2006, and from the Conference Committee on the Application of Standards, the Government representative briefly replied to the concerns the Committee had raised; and that, with regard to the issuance of instructions to the civilian and military authorities:

As far as possible, English translations of the texts of these instructions had been supplied to the Committee of Experts. With regard to the instructions and correspondence issued by the Ministry of Defence, he emphasized that not all of these were made available to other ministries and departments of the Government as a matter of principle as they involved the national security interests of the country. Therefore, it was impossible to provide copies or English translations of such correspondence or instructions to a body of an international organization.

The Committee once again requests that in its next report the Government supply information about the measures it has taken on this point, and that it supply copies of the precise texts of the letters and instructions to which it has previously referred, including a translated version of each.

(4)  Ensuring that the prohibition of forced labour is given wide publicity

19. On this topic, the Committee noted in its previous observation that the Government in its report had made reference to a series of letters, briefings and awareness-raising workshops, which it stated represented efforts by the authorities to publicize the prohibitions on forced labour. The Committee acknowledged that, accepting the information supplied by the Government at face value, efforts appeared to have been made by the Government to transmit information about the fact that forced labour has been declared unlawful in Myanmar. However, as with the communications referred to earlier, the Committee had been given no information as to the content of these activities. This again was a matter of real concern, as the Committee considered it had no confidence that the briefings and workshops had been effective in conveying the information. As previously expressed, these workshops and briefings needed to clearly and effectively convey instructions about the kinds of practices that constitute forced labour and for which the requisitioning of labour is prohibited, as well as the manner in which the same tasks could be performed without use of forced labour. The Committee considered that, if trouble had been taken to undertake activities, then again it did not appear to be a difficult exercise to construct the content of the briefings and workshops to take account of these concerns.

20. The Committee again suggested that the construction of such communications to address its concerns, thereby avoiding the need for it to continue repeating this point, could be a topic pursued in the framework of cooperation with the ILO. In addition, having regard to the fact that the Liaison Officer a.i. had had an opportunity to attend one of these events in the past, the Committee requests that the Liaison Officer a.i. be informed in advance when briefings or workshops were to be held and to give him an opportunity to attend such events if he was able. The Committee considers that such access would demonstrate in a real way the commitment of the Government to the overall objective of the elimination of forced labour in Myanmar.

21. The Committee notes that, in its latest report, the Government has not supplied the information requested or otherwise addressed the concerns of the Committee on this point. The Committee notes the remark by the Government representative in the Conference Committee in June 2006 which stated:

Turning to the question of ensuring wide publicity on the prohibition of forced labour, he referred to the fact that in the past the ILO Liaison Officer a.i. had been allowed to attend a workshop in Myeik Township in Tanintharyi Division and another in Kawhmu Township in Yangon Division. His Government would try its best to accommodate the attendance of the ILO Liaison Officer a.i. at any future events if and when they were held.

The Committee again requests that the Government in its next report supply information which describes the content of the communications in the briefings, workshops and seminars on the prohibition of forced labour it has previously referred to, as well as translated copies of any material or documents used in connection with such briefings or workshops. In addition, the Committee requests once again that the Government supply information about measures it has taken to ensure that the Liaison Officer a.i. will be informed in advance when such activities are to be conducted, in order that he or she be given an opportunity to attend if able to.

(5)  Providing for the budgeting of adequate means for the replacement
of forced or unpaid labour

22. In its recommendations, the Commission of Inquiry emphasized the need to budget for adequate means to hire paid wage labour for the public activities which are today based on forced and unpaid labour. In its previous observations, the Committee pursued this matter and sought to obtain concrete evidence that adequate means are budgeted to hire voluntary paid labour. The Government has addressed this concern with repeated statements that there is always a budget allotment for each and every project and with allocations that include the cost of material and labour. The Committee has previously observed, however, that in practice forced labour continues to be imposed in many parts of the country, in particular in those areas with a heavy presence of the army, and that the budgetary allocations that may exist are apparently not adequate to make recourse to forced labour unnecessary.

23. The Committee recalls that in its previous report, the Government stated that it had issued instructions to the various ministries to provide an estimate of the labour costs of their respective projects. The Committee in its previous observation noted a reference in the Government’s report to “a budget allotment” set up by the Myanmar police force for the payment of wages of workers “called upon to contribute labour on an ad-hoc basis”. While noting these matters, the Committee asked the Government in its next report to provide detailed information about the measures taken to budget for adequate means for the replacement of forced or unpaid labour, considering that this information would demonstrate in a real way the commitment of the Government to the overall objective of the elimination of forced labour in Myanmar.

24. The Committee notes that in its latest report the Government has not supplied the requested information on this point. It notes that in the Conference Committee in June 2006, the representative of the Government stated that: “With regard to providing an adequate budget for the replacement of forced or unpaid labour, he informed the Committee that the allocation of adequate funds had been made in the state budget. The Government would provide the Committee of Experts in due course with the relevant information on the allocation of this budget.” The Committee therefore repeats its request that the Government, in its next report, provide detailed information about the measures taken to budget for adequate means for the replacement of forced or unpaid labour.

IV.   Final remarks

25. In addition to the communication dated 31 August 2006 and attached reports received from the ICFTU, to which the Committee has previously referred, the Committee notes the evaluation by the Liaison Officer a.i. of the forced labour situation from the section of the report under the heading, “Latest developments since March 2006”, of the Conference Committee at the 95th Session of the Conference in June 2006:

The Liaison Officer a.i. continues to receive allegations of forced labour. Although not in a position to verify the details himself, he is particularly concerned about persistent and detailed accounts – from sources both within Myanmar and across the border in Thailand – of forced labour being exacted by the army over the last few months in the context of military operations in northern Kayin (Karen) State. In addition to villagers being forced to accompany army columns as porters (along with convicts from prisons), owners of bullock carts were reportedly forced to transport food and other supplies to front-line troops. (C.App./D.5, paragraph 10.)

26. The Committee also notes the discussions and conclusions concerning Myanmar of the Governing Body at its 297th Session in November 2006. In its conclusions, the Governing Body indicated that great frustration had been expressed that the authorities had not been able to agree on a mechanism to deal with forced labour complaints within the framework set out in the Conference conclusions; that they had missed a critical opportunity (during the October 2006 discussions) to demonstrate a real commitment to cooperating with the ILO to resolve the problem of forced labour; and that at the same time there was widespread and profound concern that the practice of forced labour in Myanmar was continuing. The Governing Body concluded, among other things, that the Myanmar authorities should, as a matter of utmost urgency and in good faith, conclude with the Office an agreement on a credible mechanism to deal with complaints of forced labour, on the specific basis of the compromise text proposed by the ILO in October 2006, and also that, irrespective of the status of the Government’s moratorium on the prosecution of complainants, any further move to prosecute complainants would open the way to international legal steps on the basis of article 37.1 of the ILO Constitution, in accordance with the conclusions of the Conference Selection Committee in June 2006. The Governing Body indicated that a specific item would be placed on the agenda of its March 2007 session, in order to allow legal options to be considered, including the possibility of requesting an advisory opinion of the International Court of Justice on specific legal questions, and that the Governing Body in March 2007 would revisit the question of placing a specific item on the agenda of the 2007 session of the Conference, in order to allow it to review what further action may be taken.

27. The Committee fully concurs with the views expressed by the Governing Body, and it also trusts that the implementation of the very explicit practical requests made by this Committee to the Government will demonstrate the true commitment of the Government to rectify the violations of the Convention identified by the Commission of Inquiry and resolve this long‑running problem of forced labour to which there does exist a solution.