Observation (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

I. Historical background

1. The Committee has been commenting on this extremely serious case since its first observation over 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 nine occasions between 1992 and 2005, in the International Labour Conference at its 88th Session in June 2000, 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 to an end to the exaction of forced labour in practice, in particular by the military.

3. In its previous observations in 2002 to 2005, 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 292nd and 294th Sessions (March and November 2005) 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 the Conference Committee on the Application of Standards in June 2005.

6. In addition, the Committee notes the Government’s report, received in a series of communications on 9 June, 19 August, 22 August and 2 September 2005, and the comments by the International Confederation of Free Trade Unions (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 material forwarded purports to be "from nearly every State and Division of the country on several hundreds of cases" of forced labour, including forced portering, repair and maintenance of army camps and villages for displaced people, cultivation of paddy and other fields, road construction, clearing of jungle areas, "human minesweeping", patrolling and sentry duty. A synopsis of the communication from the ICFTU was forwarded to the Government by letter dated 3 October 2005 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. No response has yet been received from the Government to this very concerning information, but the Committee acknowledges that there has been inadequate time for the Government to respond to the detailed communication, which it requests the Government to do in its next report.

7. Before addressing its particular concerns, the Committee notes that the Government has, in various documents, interventions before the ILO bodies and meetings with various High-Level Teams, expressly indicated its commitment to the elimination of forced labour in its country. More recently this has been stated publicly in the Conference Committee on the Application of Standards when the report of the proceedings recorded that the Government representative indicated that, in their determination to eliminate forced labour and to continue Myanmar’s cooperation with the ILO, the authorities in his country had taken significant actions in response to the conclusions and the aide-mémoire of the very High-Level Team (vHLT) which had visited Myanmar in February 2005.

8. At the Governing Body session in November 2005, the Ambassador of Myanmar, on behalf of the Government, also expressed willingness to cooperate with the ILO. In turn, the Governing Body indicated that the Government should take the opportunity before the next session of the Governing Body in March 2006, to resume an effective dialogue with the Office about the issues of forced labour and that pending such dialogue, the Government should "cease prosecuting victims of forced labour or their representatives and instead take action against the perpetrators".

9. The Committee assumes and expects these positive expressions by the Government to have been made in good faith. As with other ILO bodies, it is concerned that the words should be followed by action and that the credibility and commitment of the Government is best demonstrated by taking the action which has previously been specified by the Commission of Inquiry and this Committee and more recently the Governing Body.

III. Addressing the recommendations of the Commission of Inquiry

10. In view of the extent of the comments which have taken place in each of the ILO bodies since the Commission of Inquiry, the Committee considers it important to set out with absolute clarity the matters that the Government needs to address as a consequence of the Commission of Inquiry.

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

11. In its observation of 2001, the Committee noted that the Village Act and the Towns Act still needed to be amended, and this remains the position of the Committee. At the same time, the Committee accepted that 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, could provide a statutory basis for ensuring compliance with the Convention in practice. However, the Committee required that bona fide effect 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.

12. As referred to above, the Committee indicated that this required two things:

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

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

Issuing specific and concrete instructions to the civilian
  and military authorities

13. On this topic the Committee notes the following information supplied by the Government:

-  The translated text of an instruction issued by the Myanmar police force of the Ministry of Home Affairs, No. 1002(23)/202/Oo 4, dated 26 May 2005, which refers to Order No. 1/99 and to its Supplementing Order. The English translation of this instruction states: "As requisition of forced labour is declared unlawful and subject to legislative action, all regional authorities, armed forces personnel, police force personnel and other civilian authorities are prohibited from exacting forced labour". It states further that, "Police force personnel are instructed … to strictly abide by the Orders [No. 1/99 and its Supplementing Order]".

-  The translated text of an "Additional Instruction" issued by the Department of General Administration of the Ministry of Home Affairs, No. 200/108/Oo, dated 2 June 2005, which supplements Instruction No. 1/2004, dated 19 August 2004, of the Department of General Administration. The supplemental instruction specifies that the prohibition on the requisition of forced labour under Instruction No. 1/2004 applies to construction works (motor roads, railroads, construction of embankments/dykes, and other works for national or regional infrastructure projects), and also to clearing neighbourhoods and other works for rural and urban areas. It also instructs officials "not to collect or demand money" without consent.

-  A reference to several new instructions issued in 2004 and 2005 by the Ministry of Home Affairs: No. Pa Hta Ya (Ah Hta Au)/Oo-3 dated 12 December 2004 (on the requisitioning of forced labour), and by the Department of General Administration under the Ministry of Home Affairs: No. 100/108-1/Oo 1, dated 18 January 2005 (investigating complaints of forced labour) and No. 100/108-1/Oo 1 dated 10 February 2005 (orders on prohibition of requisitioning).

-  A reference to letter No. 31 Ba (Na Nga Kha-2) 2000 (2), dated 11 July 2000, issued by the Minister’s Offices of the Ministry of Defence; and letter No. 1865/18/Oo (3) dated 15 May 1999; letter No. 1865/15/Oo (3) dated 6 November 2000; and telegram No. (55-Oo) which were issued by the offices of the Commander-in-Chief (army).

-  A reference to instructions issued by the Yangon Military Command to the divisions, strategic commands, regiments, and units "to strictly abide by the law".

-  A reference to letter No. 18-3/11 Oo, dated 10 November 2000, which ordered that "a complete record of discussions" be submitted to the Yangon Military Command. The Government states that "at the regimental level, the organizing committee had explained the respective law to the platoon level officers and other ranks", and that the latter "were also required to sign that they understood the orders". The Government states that these records were submitted to the Command Headquarters which, in turn, reported this information to the Commander-in-Chief (army), "together with the relevant documents" that Order 1/99 and its Supplementing Order "had already been explained down to the lowest level".

-  A reference to "discussions … made in in-service organizing committee meetings".

-  A reference to an instruction concerning the representative of the Ministry of Defence on the Convention No. 29 Implementation Committee, issued by the office of the Commander-in-Chief (army) in letter No. 4/305/3 (Kha) 18/ Oo 1 dated 27 November 2002.

14. The Committee notes the texts and references to instructions and letters referred to above. The Committee acknowledges that these communications appear to be in part a response to the 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 has been given minimal, and in most instances no information, as to the content of the communications. This is a matter of real concern as the Committee has previously expressed that clear and effectively conveyed instructions are 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 can be performed without use of forced labour. The Committee has in a previous observation enumerated a number of tasks and practices requiring identification as closely related with the exaction of forced labour, namely:

-  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;

-  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.

15. The starting point for the eradication of forced labour is to give very clear and concrete instructions to the authorities of the kinds of practices that constitute forced labour. The combination of the lack of information and the one example of the content of one communication (namely, the Additional Instruction No. 200/108/Oo of 2 June 2005) suggests that this does not appear to have been done. It does not appear to the Committee to be a difficult exercise to construct the content of the written communication which would take account of these concerns and include all of the above elements.

16. Having regard to the Government’s expression of preparedness to continue cooperation with the ILO, the Committee suggests that the construction of such communications to implement the Committee concerns and thereby avoiding continuing repetition of this point by the Committee, could be the topic of such a cooperation. This could for example be done through the Liaison Officer a.i. or some other similar ILO liaison. The Committee asks that in its next report the Government supply information about the measures it has 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.

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

17. On this topic, the Committee notes that the Government, in its latest report (Annex C), refers to the following:

-  Letters No. 31, No. 1865/18/Oo (3) and No. 1865/15/Oo (3) and telegram No. (55-Oo), referred to specifically above, were issued by the offices of the Commander-in-Chief (army) and "were also transmitted to all the division command headquarters to thoroughly and clearly explain and direct all Tatmadawmen, strictly not to use forced labour and requisition of labour".

-  A series of "briefings" were carried out between 1999 and 2004 in 14 States and Divisions at the district, township, village and ward levels by "responsible officials" from the Department of General Administration, and which involved "explanations" of Order No. 1/99 and its Supplementing Order.

-  A table of data that purports to show the number of attendees at these briefings: a total of 21,505 persons attending 65 district-level briefings; a total of 240,500 persons at five briefings in each of 325 townships; a total of 263,427 persons attending single briefings in 1,648 wards and villages; and an overall total attendance of 525,432 persons at 18,172 briefings.

-  A series of two-day "awareness-raising" workshops on the implementation of Convention No. 29, organized by field observation teams, and which it says were held between May and December 2004.

18. The Committee acknowledges that, accepting the information supplied by the Government at face value, efforts appear 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 above, the Committee has been given no information as to the content of the briefings and workshops. This again is a matter of real concern, as the Committee has no confidence that the briefings and workshops have been effective in conveying the information. As previously expressed, these workshops and briefings need 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 can be performed without use of forced labour. If the trouble has been taken to undertake activities then again, it does not appear to the Committee to be a difficult exercise to construct the content of the briefings and workshops to take account of these concerns.

19. The Committee suggests that the construction of such communications to address its concerns, thereby avoiding continuing repetition of this point by the Committee, could be a topic to be pursued in the framework of the cooperation with the ILO. The Committee asks the Government in its next report to supply information which describes the content of the communications in the briefings and workshops on the prohibition of forced labour and copies of any material or documents provided for such briefings or workshops. In addition, having regard to the fact that the Liaison Officer a.i., has 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 are to be held and to give him an opportunity to attend such events if he is able. 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.

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

20. 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 report, the High-Level Team (2001) stated that it had received no 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 public works projects.

21. In its previous observations, the Committee pursued the matter and sought to obtain concrete evidence that adequate means are budgeted to hire voluntary paid labour. The Government in response has reiterated its previous statements according to which there is always a budget allotment for each and every project, with allocations which include the cost of material and labour. The Committee observed, however, that in practice forced labour continued 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 were not adequate to make recourse to forced labour unnecessary.

22. In its latest report, the Government states that it has issued instructions to the various ministries to provide an estimate of the labour costs of their respective projects. The Committee also notes a reference 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" (Appendix A of the Government’s report).

23. While noting these matters, the Committee indicates that, in view of the widespread nature of the practices of forced labour which have been the ongoing concern of the Commission of Inquiry and each of the ILO bodies, including this Committee up to the present time, the Committee once again asks 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. Again 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.

(4)  Ensuring the enforcement of the prohibition
of forced labour-monitoring machinery

24. The Committee previously noted that measures taken by the Government to ensure the enforcement of the prohibition of forced labour have 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 are submitted to the Convention No. 29 Implementation Committee.

25. The Committee also notes the following matters:

-  the report of the Liaison Officer a.i. to the Governing Body in March 2005 that, of the 46 cases transmitted to the Convention No. 29 Implementation Committee in 2004, in only five cases were allegations of forced labour upheld (GB.292/7/2, paragraph 11);

-  that the view of the Liaison Officer a.i. is that "the mechanism put into place by the authorities for addressing forced labour allegations, that of sending an ad hoc team composed of senior government officials to the region to conduct an investigation, is not well suited to dealing with the increasing numbers of cases. As the number of allegations of forced labour has increased, they have tended to be investigated internally by the General Administration Department or by the Ministry of Defence" (GB.292/7/2, paragraph 12);

-  that the Liaison Officer a.i. received new complaints of forced labour and the requisition of forced labour in December 2004, which led that same month to five interventions transmitted to the Convention No. 29 Implementation Committee, and that as of 18 February 2005 the Liaison Officer a.i. had received 14 new cases, leading to five additional interventions in February 2005 (GB.292/7/2, paragraphs 9 and 13);

-  that, according to an updated report submitted to the Conference Committee on the Application of Standards in June 2005, the Liaison Officer a.i. made interventions on five additional cases in March and April of 2005 (ILC, 93rd Session, C.App./D.6/D, paragraph 11);

-  that the Government’s latest report (Annex F) and the reports of the Liaison Officer a.i. (ILC, 93rd Session, C.App./D.6/DIII, paragraph 13; GB.292/7/2, paragraph 14; GB.292/7/2(Add.), paragraph 4) in relation to the series of responses in March, April, and May of 2005 from the Convention No. 29 Implementation Committee to the interventions of the Liaison Officer a.i., indicate that in only three cases did investigations by field observation teams lead to prosecution and punishment of local village officials. Further, that in every case involving the armed forces or police officials, either the allegations were reported to have proved groundless following internal investigations or else no information was provided;

-  that the report of the Liaison Officer a.i. to the Conference Committee on the Application of Standards in June 2005 (C.App./D.6/D.III, paragraphs 12 and 14), as well as the intervention of the Government representative in the Conference Committee in June 2005, indicate that the Government has begun to systematically prosecute victims of forced labour who lodge what the Government considers to be "false complaints", and that, in light of this, the ILO instructed the Liaison Officer a.i. to temporarily suspend dealing with new allegations of forced labour;

-  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). Two of the interventions of the Liaison Officer a.i. in April 2005, which concerned allegations of forced recruitment of minors into the army, were addressed to the new army focal point (C.App./D.6/D.III, paragraph 11). The Committee also notes the Government’s indication in its report that the army focal point had thus far investigated three of five cases of alleged forced recruitment, and that following investigation one case was rejected while in the two others, "two persons were returned to the care of their parents", with no apparent prosecution of those responsible for the forced recruitment. The Government indicated that investigations had been initiated on the two other forced recruitment cases, and that the single case involving an allegation of forced labour by the army was under internal investigation and that the results would be forwarded to the Liaison Officer a.i.;

-  the Government’s statement in its latest report that among the 50 complaints of forced labour or forced recruitment in 2004, 23 involved the armed forces, and its apparent indication that in two of the 15 cases of alleged forced recruitment by the army, "action had … been taken against those who enforced recruitment against the existing laws and regulations";

-  the Government’s indications in its report and the tables attached to its report (Annexes E and G) that purport to show that "action had been taken" against officers or other members of the military in 17 cases of forced recruitment in 2002 and in five cases of forced labour in 2003.

26. Taking into account the above matters, the Committee is extremely concerned that the assessments made by the field observation teams and the Convention No. 29 Implementation Committee, and those made thus far by the army focal point, appear to lack independence and credibility. The Committee notes with concern from a report submitted for discussion to the 294th Session of the Governing Body in November 2005 (GB.294/6/2) that "recent developments have seriously undermined the ability of the Liaison Officer a.i. to perform his functions" (paragraph 7), and that, while he has continued to receive complaints from victims or their representatives concerning ongoing forced labour or forced recruitment, he is 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).

27. The Committee fully concurs with the view expressed by the Governing Body that it is imperative that the Government should cease prosecuting persons who complain that they are victims of forced labour and instead take increased action to prosecute perpetrators of forced labour. This requires the Government to take the necessary measures to develop credible, fair and more effective procedures for investigating allegations of forced labour, in particular those involving the army. The Committee on this issue also requests the Government to cooperate more closely with the Liaison Officer a.i. and the Office. The Committee reiterates the importance of instituting a mechanism such as the Facilitator as a credible channel for the treatment of complaints that protects the victims and leads to the prosecution, punishment and imposition of sanctions against those responsible for the exaction of forced labour.

IV.  Final remarks

28. Apart from the communication dated 31 August 2005 from the ICFTU, to which the Committee has previously referred, the Committee notes the general evaluation by the Liaison Officer a.i. of the forced labour situation, on the basis of all the information available to him, which "continues to be … that although there have been some improvements since the Commission of Inquiry, the practice remains widespread throughout the country, and is particularly serious in border areas where there is a large presence of the army" (February 2005 report of the Liaison Officer a.i., document GB.292/7/2, paragraph 8).

29. The Committee also notes the conclusions concerning Myanmar, adopted by the Governing Body at its 294th Session in November 2005. In its conclusions, the Governing Body indicated that there was a general feeling of grave concern about the degradation of the situation, and that members of the Governing Body were particularly concerned and critical about the recent threats which had been made against the Liaison Officer a.i. as well as the former Acting Liaison Officer and Informal Facilitator, and which resulted in paralysing his capacity to discharge his responsibilities. A number of Members were of the view that the only way which was left to the ILO, in light of the further very disturbing developments which had taken place, was to enable the Conference itself to revisit the measures adopted in the 2000 ILC resolution under article 33 of the Constitution, by placing a specific item for that purpose on the 2006 agenda in order to review and, as appropriate, to strengthen them. However, taking into account the willingness expressed by the representative of the Government to cooperate and the fact that any step relating to action by the Conference would in any case need to be reconfirmed at its next session, the Governing Body, among other things, requested the Government at various levels, including the senior leadership, to take advantage of the time available prior to March 2006 to resume an effective dialogue with the International Labour Office.

30. The Committee fully concurs with the view expressed by the Governing Body and 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 resolve this long running problem of forced labour to which there is a solution.

[The Government is asked to supply full particulars to the Conference at its 95th Session.]