Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 29) sur le travail forcé, 1930 - Myanmar (Ratification: 1955)

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Observation

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Myanmar (ratification: 1955)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2019. It also notes the detailed discussion which took place at the 108th Session of the Conference Committee on the Application of Standards in June 2019, concerning the application by Myanmar of the Convention.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

Articles 1(1), 2(1) and 25 of the Convention. Elimination of all forms of forced labour. 1. Engagement of the ILO regarding the elimination of forced labour. (a) Historical background. In March 1997, a Commission of Inquiry was established under article 26 of the ILO Constitution to address the forced labour situation in Myanmar. As reported to the ILO Governing Body, forced labour had taken various forms in the country over the years, including forced labour in conflict zones, as well as for public and private undertakings. In its recommendations, the Commission of Inquiry urged the Government to take the necessary steps to ensure that: (i) the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention; (ii) in practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and (iii) the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced.

Since then, the issue has been the focus of cooperation between the Government and the ILO for more than a decade. In 2002, an Understanding was agreed between the Government and the ILO, which permitted the appointment of an ILO liaison officer. Later in 2007, the Supplementary Understanding (SU) was signed, in particular, to set out a complaints mechanism with the objective “to formally offer the possibility to victims of forced labour to channel their complaints through the services of the Liaison Officer to the competent authorities with a view to seeking remedies available under the relevant legislation and in accordance with the Convention”. In addition, in 2012, the ILO concluded a Memorandum of Understanding (MoU) on a Joint Strategy for the Elimination of Forced Labour by 2015, which provided a basis for seven interrelated action plans. The ILO also participated in the Country Task Force on Monitoring and Reporting on underage recruitment issues.

(b) Recent developments. The Action Plan for the elimination of all forms of forced labour, 2018 and the SU, which provided for a complaints mechanism, expired in December 2018. On 21 September 2018, the Government, the workers’ and employers’ organizations and the ILO signed the MoU on Decent Work Country Programme (DWCP) (2018–21). The significant implementation outputs, as indicated in the DWCP document, include institutionalization of national forced labour complaints mechanisms and strengthened protection against unacceptable forms of work, in particular forced and child labour by 2021. The Committee notes that in the course of the discussion in October–November 2019, the Governing Body noted, in respect of progress in the elimination of the use of forced labour that the number of complaints received had continued to decrease since 2016 suggesting progress towards elimination of underage recruitment, which generally accounted for the highest proportion of complaints received. It noted that in 2019 the ILO received 108 forced labour complaints, 48 of which have been assessed as being within the definition of forced labour while there were no complaints received of forced labour related to the involuntary use of civilians as guides and porters from conflict areas. Very few reports of forced labour in the private sector have been received since March 2019. The Governing Body also noted that the proposal for the establishment of a National Complaints Mechanism (NCM) was approved by the Government by a letter dated 7 August 2019 (GB.337/INS/9). The Governing Body noted that the ILO stressed on the following elements as necessary for a credible and effective complaints mechanism: (a) impartiality in the assessment and investigation of complaints; (b) guaranteed protection of victims; (c) credible accountability; (d) decentralization of responsibility to eliminate forced labour; and (e) awareness-raising programmes, particularly for those living in remote and conflict-affected areas. Although the Government had publicly advertised its intention to establish an NCM, no reference had been made to complainants being able to continue to submit complaints to the ILO. The GB also noted that while the Government had made efforts to develop interim procedures for dealing with complaints, a framework for the development of the NCM and an action plan for the elimination of forced labour under the DWCP, the victim protection measures remained unclear and the decentralization responsibility to state and regional governments to eliminate forced labour still needed to be addressed.

2. Application of the Convention in law and in practice. In its previous comments, the Committee noted that the Ward or Village Tract Administration Act of 2012, which repealed the Village Act and the Towns Act of 1907 makes the use of forced labour by any person a criminal offence punishable with imprisonment and fines (section 27A). It noted that no action had been taken to amend article 359 of the Constitution (Chapter VIII – Citizenship, fundamental rights and duties of citizens), which exempts from the prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public” and could be interpreted in such a way as to allow a generalized exaction of forced labour from the population. It also noted that the developments within the peace process, such as the National Ceasefire Agreement of 2015 as well as the ILO initiation with the Government and the Ethnic Armed groups which resulted in two non-state armed groups committing to end forced labour, led to a significant decrease in the numbers of reported cases of forced recruitment for military purposes by both the security forces and armed groups. The Committee, however, noted from the Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar of 17 September 2018 (A/HRC/39/CRP.2) that the use of forced labour by the Tatmadaw (the armed forces of Myanmar) persisted, particularly in Kachin and Shan States, as well as among the ethnic Rakhine and Rohingya. It noted that in many instances, the Tatmadaw arrived in a village and took villagers directly from their homes or from the areas surrounding their village while they were fishing, farming, running errands or travelling while in some cases, this was done in an organized way, such as house by house, on the basis of a quota for each family, through a list, or with the cooperation of village leaders. Persons subjected to forced labour were required to perform a variety of tasks and the duration varied from a few days to months. Many of them were required to act as porters, carrying heavy packages including food, clothes and in some cases weapons. Other common types of work included digging trenches, cleaning, cooking, collecting firewood, cutting trees, and constructing roads or buildings in military compounds. Victims were also sometimes required to fight or participate in hostilities. Often, victims were given insufficient food of poor quality or were not able to eat at all. They did not have access to water and were kept in inadequate accommodation, including in the open air without bedding and without adequate sanitary facilities. Victims were subjected to violence if they resisted, worked slowly or rested. Particularly, female victims also faced sexual violence (paragraphs 258–273, 412–424 and 614–615). The Committee noted with deep concern the persistence of forced labour imposed by the Tatmadaw in Kachin and Shan States, as well as among the ethnic Rakhine and Rohingya. It urged the Government to strengthen its efforts to ensure the elimination of forced labour in all its forms, in both law and practice, particularly the forced labour imposed by the Tatmadaw; to take the necessary measures to ensure the strict application of the provisions of the Ward or Village Tract Administration Act of 2012 and the Penal Code; as well as to provide information on any progress made regarding the amendment to article 359 of the Constitution.

The Committee notes that, in its observations, the ITUC stated that forced labour is exacted in a systematic and continuous manner and that this practice is also persistent in the private sector, especially in the agricultural sector (fisheries, sugarcane, beans) and in the jade industry. The ITUC further highlights the plight of the Rohingya population, nearly 700,000 of them, who were expelled from the Rakhine State following the so-called clearance operations, commenced in 2017, and who are at an increased risk of falling victims to forced labour by both state and non-state actors.

The Committee notes the statement made by the Government representative of Myanmar to the Conference Committee that a total of ten ethnic armed forces have already signed the National Ceasefire Agreement and a unilateral ceasefire has been announced in the States of Kachin and Shan from December 2018 to April 2019. The Government representative further indicated that interim procedures for continuously receiving complaints are in place and that a Joint Parliamentary Committee was established to amend the Constitution. The Worker members, in their statement to the Conference Committee, alleged that the Government failed to implement most of the activities designed under the 2012 and 2018 action plans. The Committee notes that the Conference Committee, in its concluding observations, while welcoming the efforts in eliminating forced labour, expressed concern over the persistent use of forced labour and therefore urged the Government to take all necessary measures to ensure that forced labour is not imposed in practice by the military or civilian authorities; to ensure that victims of forced labour have access to effective remedies and comprehensive victim support without fear of retaliation; to increase the visibility of awareness-building and capacity-building activities for the general public and administrative authorities to deter the use of forced labour; to provide detailed information on the progress made within the DWCP; and to intensify its cooperation with the ILO through the development of a time-bound action plan for the establishment of, and transition to, an effective complaints handling procedure.

The Committee notes the Government’s information in its report that within the framework of the DWCP, in January 2019, a Training of Trainers on the Elimination of Forced Labour was conducted with representatives from the High Level Working Group (HLWG), members of the Technical Working Group (TWG) and representatives of the ILO. Moreover, a knowledge-sharing workshop was held during the same period with 50 representatives, including members from the HLWG, TWG, representatives of ILO, Government, and employers’ and workers’ organizations to share good practices of other countries on developing the National Complaints Mechanism (NCM). The Government indicates that the interim procedures for receiving and resolving forced labour complaints are, and will be, carried out by the HLWG until the establishment of the NCM.

In this regard, the Committee takes due note of the Government’s indication in its supplementary information that the NCM has been established and operational since February 2020. A national committee was set up in order to effectively implement the NCM, comprising representatives from 16 ministries and the Myanmar Human Rights Commission, as well as representatives from the Union of the Myanmar Federation of Chambers of Commerce and Industry (UMFCCI), the Confederation of Trade Unions Myanmar (CTUM), the Agriculture and Farmers Federation of Myanmar (Food Allied Workers) (AFFM-IUF) and the Myanmar Industries Craft and Services Trade Unions Federation (MICS-TUsF). An orientation session, facilitated by the ILO, was conducted for the members of the national committee for the NCM. Moreover, training on identifying and investigating forced labour cases, as well as on the international definition of forced labour and international humanitarian law was provided to 38 officials and staff from the various ministries and departments that receive complaints on forced labour. The Committee also notes the Government’s information that the NCM resolved 20 cases out of the 38 cases received in 2020, including the 24 cases received during the operation of the interim complaints mechanism.

The Committee also notes the Government’s information that from July 2018 to August 2019, a total of 6,423 awareness-raising workshops on forced labour were conducted for an estimated 507,935 people in related townships across the country and 115,113 posters were distributed. Moreover, to prevent the use of forced labour in the private sector, from January 2018 to July 2019, 1,903 knowledge-sharing workshops were conducted with 92,698 participants from 4,252 factories, shops, establishments and training centres.

Regarding the amendment to article 359 of the Constitution which exempts from the prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public”, the Committee notes the Government’s information that the proposal was brought before the Pyidaungsu Hluttaw (Assembly of the Union) on 19 March 2020. However, the Committee notes with regret the Government’s statement that although 409 of the 654 representatives voted in favour of it, the article could not be amended as the required vote of more than 75 per cent of all the representatives of the Assembly was not received.

The Government further indicates that up until July 2020, 1,105 cases concerning underage recruitment were received under the SU complaints mechanism, of which 707 cases have been resolved. The Committee notes that from April 2019 to July 2020, ten military officers and eight military personnel were punished for the irregular recruitment of children. Moreover, 23 underage children who were irregularly recruited were released. The Committee, however, notes an absence of information on the concrete penalties applied to the ten military officers and eight military personnel for the irregular recruitment of children.

It further notes the Government’s information that no one was punished under the Ward or Village Tract Administration Act and the Penal Code from July 2018 to July 2019. While taking note of the measures taken by the Government towards the elimination of all forms of forced labour, the Committee once again reminds the Government that, by virtue of Article 25 of the Convention, the exaction of forced or compulsory labour shall be punishable as a penal offence, and the penalties imposed by law shall be really adequate and strictly enforced.

The Committee therefore strongly urges the Government to take the necessary measures to ensure the strict application of the national legislation, particularly the provisions of the Ward or Village Tract Administration Act of 2012 and the Penal Code, so that sufficiently dissuasive penalties of imprisonment are imposed and enforced against perpetrators in all cases. In this regard, the Committee requests the Government to provide information on the application in practice of the above-mentioned legislation to ensure accountability, including the statistical data on cases of forced labour detected, legal proceedings initiated, convictions handed down and the nature of the penalties imposed on convicted persons. It also requests the Government to continue providing detailed information on the measures taken to ensure that, in practice, forced labour is no longer imposed by the military or civilian authorities, as well as the private sector, such as awareness-raising and capacity-building activities for local administrators, military personnel, other stakeholders and the general public. The Committee further requests the Government to continue to provide information on the number of complaints on forced labour received and resolved by the NCM. Furthermore, while acknowledging the efforts made by the Government in respect to the proceedings to amend article 359 of the Constitution, the Committee firmly hopes that the Government will continue to take the necessary measures to ensure that article 359 of the Constitution is amended so as to bring it into conformity with the Convention and to provide information on any progress made in this regard. It once again reiterates the firm hope that all the necessary measures will be taken, in law and in practice, without delay to achieve full compliance with the Convention so as to ensure that all use of forced or compulsory labour in Myanmar is completely eliminated.

The Committee is raising other matters in a request addressed directly to the Government.