International Labour Conference
Ninety-first Session, Geneva, 2003
Committee on the Application of Standards
[extract from]
Provisional Record 24, Part two.
OBSERVATIONS AND INFORMATION CONCERNING PARTICULAR
COUNTRIES
.................
I. OBSERVATIONS AND INFORMATION CONCERNING REPORTS ON
RATIFIED CONVENTIONS (ARTICLE 22 OF THE CONSTITUTION)
.................
Convention No. 87: Freedom of Association and
Protection of the Right to Organise, 1948
...................
Myanmar (ratification:
1955). A Government representative
stressed that Myanmar,
as a country in transition, was doing its utmost to promote the rights,
interests and welfare of its workers while at the same time taking appropriate
steps until the adoption of a strong and enduring State Constitution. He
refuted the claim that the Government had done nothing to apply Convention No.
87 and had been using delay tactics for the past 40 years. The Revolutionary
Council had assumed power in 1962 and a socialist State had been instituted by
referendum in 1974 and workers had been allowed to establish organizations
according to the State Constitution at the time and had operated until 1988. He
stressed that the fundamental political transformations and transition from one
political system to another were bound to impact developments in all sectors of
the country, including labour affairs. During the socialist era, the foremost
priority of the people of Myanmar
had been the emergence of a State Constitution, and the creation of workers'
organizations could only take place afterwards. The Government was striving to
establish a modern, peaceful and developed democracy according to the
aspirations of the people of Myanmar.
After having restored peace and stability, the State Peace and Development
Council (SPDC) was turning its efforts towards
political, economic and social development in order to lay down the foundations
for the emergence of a strong and enduring Constitution. Reminding the
Committee that all laws arose from a country's Constitution, the Government
representative stressed that this included laws that aimed at the creation of
fully-fledged trade unions. Therefore, all the Government could do in the
period of transition was to take interim measures and build on existing mechanisms
for these associations to look after the rights and interests of workers to the
extent possible under the prevailing circumstances. As evidence of the steps
the Government had taken in this direction, he cited the following Workers'
Welfare organizations which were allegedly operating in Myanmar,
including the Myanmar Guston Molinel
Garment Factory Workers' Welfare Association, the Textcamp
Garment Factory Workers' Welfare Association, the Yes Garment Factory Workers'
Welfare Association and the Tarshin Garment Factory
Workers' Welfare Association. Professional associations cited included the
Myanmar Overseas Seafarers' Association, the Myanmar Women Entrepreneurs'
Association, the Myanmar Dental Surgeons' Association, the Myanmar Engineers'
Association, the Myanmar ASEAN Women Friendship Association, the Myanmar
Writers' and Journalists' Association and the Myanmar Construction Enterprises'
Association. The Government representative claimed the organizations mentioned
were forerunners of trade unions, which operated in the interest of workers and
to the best of their abilities under the prevailing conditions. Taking the
Myanmar Overseas Seafarers' Association as an example, he pointed out that the
organization had been freely formed by the overseas seafarers, had freely
elected officers on its Executive Committee and freely exercised its activities
in the interests of its members. He likened it to a trade union and stated that
the Government had deposited a copy of its Constitution with the ILO. He maintained
this was a major step towards implementing Convention No. 87.
The Government representative stated that the existing
mechanisms for the safeguarding of workers' rights were working well in Myanmar
and that complaints of trade disputes had been dealt with
effectively and peacefully through conciliation and negotiation. He explained
that, in 2002, the Department of Labour had received 92 complaints of trade
disputes from 60 factories and workplaces with a combined total of 29,054
workers, 14,202 of whom had been directly involved, and that all the cases had
been settled through negotiation and conciliation processes.
Reiterating the fact that the Government was doing all in
its power to progress towards implementation of the Convention, the speaker
pointed out that the Government had been receiving technical assistance from
the ILO in this respect, including the visit to Myanmar of Standards Department
officials. The speaker stated that the Government was cooperating with the ILO
in the implementation of the Forced Labour Convention (No. 29), 1930, and had
been making great progress, citing the agreement, recently concluded with the
ILO, on the Joint Plan of Action for the elimination of forced labour. This
agreement, in the speaker's view, was a model in the field of human rights and
should be applied to Convention No. 87. ILO technical assistance in this matter
would make way for further positive ILO-Myanmar cooperation.
The speaker explained that the Government had consulted the
ILO on how to strengthen workers' welfare associations and on other ways of
advancing the matter. On 20 May 2002,
the Myanmar
delegation had discussed Convention No. 87 with the Director-General and other
ILO staff, and since then, there had been regular contacts with the Standards
Department.
In conclusion, the Government representative emphasized the
importance of the role of the ILO in helping member States implement core ILO
Conventions and said that it should refrain from censuring States which were
genuinely attempting to comply with the Conventions. The speaker hoped that the
Committee understood the position of the Myanmar Government and that
discussions and cooperation with the ILO would lead to fruitful results towards
implementing their obligations.
The Worker members
stated that, although the Committee of Experts' observation was brief, the case
of Myanmar was
well known given that it had been discussed at the Conference 15 times in the
past 22 years, and even before the Commission of Inquiry had been established
concerning the violation of Convention No. 29 by Myanmar.
On Convention No. 87, a special paragraph had been set aside on the case on
eight occasions, five of which were for continued failure to apply the
Convention. They pointed out that this was the only case, among many concerned
with the application of Convention No. 87, which focused on the total absence
of freedom of association over a prolonged period of time. These violations of
freedom of association occurred in a political climate of severe repression by
the military regime, of human rights and other fundamental freedoms, as the
tragic events of the last two weeks had shown. Many of these violations had
been brought to the attention of United Nations bodies, including the ILO, and
the situation was being followed closely by the Commission on Human Rights, the
UN Secretary-General, the General Assembly and the Committee on the Rights of
the Child, which deplored "the pattern of gross and systematic violations
of human rights in Myanmar, including extrajudicial, summary and arbitrary
executions, enforced disappearances, rape, torture, inhuman treatment, denial
of freedom of assembly, association, expression, religion and movement"
(Commission on Human Rights resolution 2002/67, paragraph 5(a), General Assembly
resolution A/RES/56/231, paragraph 4). In February 2003, the General Assembly
expressed again its grave concern "at the ongoing systematic violation of
the human rights, including civil, political, economic, social and cultural
rights of the people of Myanmar; extra-judicial killings, renewed instances of
political arrests and continuing detentions, including that of prisoners who
had served their sentences; denial of freedom of assembly, association,
expression and movement; wide disrespect for the rule of law" (General
Assembly resolution A/RES/57/231, paragraph 3(a) and (b)).
The Worker members recalled that on 28 May 2003, the ICFTU had filed a 33-page
complaint with the ILO, with over 150 pages of attachments, against the regime for
violations of freedom of association. In its first section the complaint
focused on the legislative framework used by the regime to suppress freedom of
association and, in its second part, denounced new cases of violations which
confirmed the military regime's persistent and systematic pattern of violations
of the right to freedom of association. They requested the Committee of Experts
to review the detailed information provided by the ICFTU for its report next
year, as well as any response the Government might provide. They also pointed
out that because of arbitrary and artificial restrictions of time, some
Workers' delegates would refrain from intervening. In due time, the interested
organizations would submit their observations to the Committee of Experts and
the Government should also respond to their concerns.
The Worker members also urged the Committee of Experts, to
devote special attention to the section of the ICFTU comments, which had not
yet been completely reviewed by them, on new information concerning a
legislative framework for the suppression of freedom of association. They
reiterated that, despite the repeated statements of good intention by the
Government that drafting of new legislation allowing the free and independent
establishment of workers' organizations, was under
way, absolutely no progress had been made.
The Worker members recalled that Mr. Maung Maung, the General Secretary of the Federation of Trade
Unions of Burma (FTUB), together with other workers who had attempted to organize
an independent union in a state-owned mining company in the late 1980s, had
been dismissed, threatened and forced to flee the country after the military
crackdown of August 1988. The FTUB was considered by the military regime to be
a subversive organization and any worker linked to it was at tremendous
personal risk. Nevertheless, the FTUB continued to function underground around
the country, and helped to organize and expand relations with new independent
trade unions in a number of diverse ethnic communities, giving rise to some of
the first democratic structures in these communities. The fact that the FTUB,
which was recognized as a legitimate trade union around the world, was
considered to be a subversive organisation by the regime, dramatized the total
absence of freedom of association in Burma.
Although the Government representative claimed that the Workers' Welfare
Association and the Workers' Supervisory Committees were a form of freedom of
association, the Committee of Experts agreed with the Worker members that
neither of these could substitute for the fundamental right to organize
provided for in the Convention.
The Worker members recalled that the two FTUB
representatives, who had been arrested in 1997 and convicted for high treason
at secret trials, had not been seen since, and therefore requested the
Government representative to provide a report on their whereabouts and
well-being. They were still waiting for a response regarding Saw Mya Than,
another FTUB member, whose murder, on 4 August 2002, had been reported to the
ILO and raised by the ILO liaison officer before the Government Implementation
Committee on 9 November 2002, to which there had been no response from the
Government.
The Worker members stressed that they would consider any attack
on Mr. Maung Maung in the context of the violent
crackdown of the last two weeks as a threat to his well-being and requested the
Committee to stress in its conclusion that such attacks were unacceptable. In
conclusion, the Workers informed the Committee of the approval by the United
States Senate, of the Burma Freedom and Democracy Act, in response to the
ambush of Ms. Aung San Suu Kyi on 30
May 2003 and the subsequent crackdown on the National League for
Democracy (NLD) countrywide. The Bill was on its way to becoming law and the
Worker members called on other nations to take similar actions until the
military regime in Burma
released all political prisoners, provided a full account of the 30 May 2003 events, and returned to a
path of political reconciliation. Only then would there be a climate for
progress towards the protection of workers' and employers' rights to freely
organize in accordance with Convention No. 87.
The Employer members
recalled that the Committee had dealt with this case eight times in the last
ten years and that the Government had claimed for eight years that it was in
the process of elaborating a new Constitution and new laws, including a trade
union Act. However, no factual development had been noted so far and the
Government had also failed to provide such information at the present session
of the Committee. The Government representative once again referred to a number
of existing organizations which, as he admitted, were only surrogates to real
trade unions as provided for in the Convention. There was no freedom to join
and establish organizations without interference and prior authorization.
Noting that no information had been submitted on the manner in which the
legislative measures were undertaken, the Government was requested to submit
existing draft laws to the Committee of Experts. If the Conference Committee
considered the statement of the Government representative to express its
willingness to take further measures, this should be noted. In response to the
Government representative's referral to Convention No. 29, in respect of which
the ILO had to take measures under article 33 of the ILO Constitution, the
Employer members hoped that it would not be necessary to follow such a stony
path with regard to Convention No. 87. However, changes in law and practice to
bring it in conformity with the Convention had not yet been achieved and
restrictions and interference by the State continued. The Committee should
therefore urge the Government once again to take the necessary measures.
The observer of the
International Confederation of Free Trade Unions (ICFTU) informed the
Committee that in 1988, he was elected President of the Myanmar Gems
Corporation Union and President of the All Burma Mining Union. He had
participated in the All Burma Workers' Union Congress held at Htan Ta Bin high school in Rangoon
on the 30 August 1988. On 18 September 1988, the military
staged a coup and announced that all workers on strike should return to work
and issued Order No. 6/88 which denied Freedom of Association by imposing a
penalty of five years' imprisonment. The speaker declared that he returned to
work with the rest of the members, but on 24 October 1988, the corporate administration called in
six leaders of the union, including himself, and informed them not to go to
work the following day. The speaker left the country to avoid arrest,
imprisonment and torture as the Military Intelligence had been looking for him.
He stressed that although independent trade unions existed in Burma,
their members had been forced into exile. Furthermore, unions were denied the
right to register, could not operate openly, and had to work underground. Trade
union members risked reprisal, arrest and detention by the authorities if their
activities were discovered. In October 1990, U Maung Ko, the secretary-general
of the Port Workers' Union had been arrested and
imprisoned at Insein Jail. On 9
November 1990, his family had learned of his death through the
workers at the Rangoon General Hospital.
The authorities claimed that he had taken his own life after confessing to his
activities, but neither the confession nor the circumstances under which it had
been extracted have been revealed. An FTUB eyewitness who had seen U Maung Ko's body before burial asserted that the many marks were
proof of torture. The speaker also indicated that the cases of Myo Aung Thant,
Khin Kyaw, Thet Naing and
Myint Maung Maung, that had been discussed at the Conference Committee in 1999 and
2001, had not yet been resolved. They were still in prison for trade
union activities. He also mentioned the case of Aye Aye
Swe who was arrested in 1998 and sentenced to seven years in prison for trade
union activities.
The speaker stressed that in Burma,
any form of labour organizing was immediately repressed and labour disputes
were settled through the immediate intervention by the police and the military
imposing harsh criminal actions on the pretext of national security. Workers
were intimidated, threatened or violently repressed. Workers were accused of being
the communist tools of imperialists and terrorists. Military and police
interventions usually led to violations of basic human rights, including
beatings, torture, arrests and detentions with no guarantee of a fair trial.
The speaker insisted that in such a climate of violence and repression and in
the absence of the right to organize, forced labour could not be eliminated. He
called upon the ILO to help them build independent representative trade unions
to contribute to the well-being of the population of Burma.
The Government member
of China encouraged the Government of Myanmar to cooperate with the ILO to
comply with Convention No. 87.
The Government member
of Norway, speaking on behalf of the Government
members of the Nordic countries as well as of the Netherlands and Canada, expressed their continuing deep
concern over the trade union situation in Myanmar
and recalled that the Conference Committee had commented on the Government's
failure to apply Convention No. 87 for several years. No real progress had been
made in providing a legislative framework under which free and independent
workers' organizations could be established. The speaker urged the Government
to adopt the necessary measures to fully ensure the fundamental right to
organize and to send, with its next report, copies of any proposed revisions of
the Trade Union Act.
The Government member
of the United States stated there was an inextricable link between the
fundamental right to freedom of association and the issue of forced labour discussed
during the special sitting of the Committee. The High-Level Team, which visited
Myanmar in September 2001 with respect to Convention No. 29, had reported that
if strong and independent workers' organizations, as required by Convention No.
87, existed in Myanmar, these could provide individuals affected by forced
labour with the framework and collective support necessary to help them make
the best possible use of all remedies available to defend their rights. It was
thus crucial for the international community to remain focused on Myanmar's
failure to apply Convention No. 87. The Government representative noted that,
in response to the repeated appeals to the Government to take the necessary
measures, the Committee once again heard promises regarding revised laws and a
new Constitution, as well as explanations about workers' associations that are
a surrogate of trade unions. Nonetheless, the fact remained that no real
progress had been made. Her Government deplored the continuing lack of will to
respect obligations freely undertaken and the recent events in Myanmar
further demonstrated the Government's unwillingness to respect freedom of
association. The Government of the United States
called for the immediate release of Ms. Aung San Suu Kyi and other detained NLD
members, and for the reopening of the NLD offices without delay.
The Government
representative wished to clarify the circumstances of the death of Mr. Saw
Mya Than. The Myanmar
authorities had carried out a thorough investigation into this case. The
investigation found that Saw Mya Than was from the village
of Kalaikatoat
in Ye Township. He did not belong to any lawful association of education
workers. The Kawthoolei Education Workers' Union
was an unlawful underground organization affiliated with the Karen National
Union (KNU) which was the only remaining insurgent group in the country. He was
not an elected headman of the village, as claimed by the FTUB. In fact he was
employed by the army as a guide, not as a porter. On 4 August 2002, Saw Mya
Than was accompanying an army column as a guide. When the army column reached a
location about five miles from the village, a small group of KNU insurgents
detonated a Claymore mine by remote control. In that incident, Saw Mya Than was killed instantly. The army column retrieved
his dead body and handed it over to his family. It also assisted in organizing
the funeral service for Saw Mya Than. Moreover, it gave due compensation to the
members of his family. In fact, members of the bereaved family were quite
satisfied with the kind assistance and sympathetic gesture extended to them by
the army. It was therefore crystal clear that the allegation from the FTUB was
an unfounded allegation, fabricated with political motivations.
With regard to Mr. Maung Maung,
the Government representative alleged that he had once again abused the
Committee. The same had happened at the meeting of this Committee on 7 June 2003. At that time he had
informed the Committee that Mr. Maung Maung was a
criminal, fugitive from justice and a terrorist. The speaker wished to place on
record, once again, a strong protest of his delegation against the abuse of
this Committee by the same person.
Turning to recent events, he stated that since the lifting
of restrictions on Daw Aung San Suu Kyi on 6 May 2002, she had been allowed to travel freely through
the length and breadth of the country. Between June 2002 and April 2003, Daw
Aung San Suu Kyi had visited 95 townships. On 30 May 2003, she and her supporters in a long motorcade
with over 100 motorcycles drove with high speed and ploughed through the crowd
at a location outside Depeyin
Township, resulting in injuries to
many people. This led to clashes between the local populace and her supporters.
Four persons were killed, and 48 persons injured. After she made a second trip
to the Shwebo region after her visit to Mandalay,
disturbances occurred at a location outside Depeyin Town
on 30 May. He maintained that there was premeditation on the part of Daw Aung
San Suu Kyi, but not on the part of the Government.
He recalled that, during the course of the present session
of the Committee, he had said that Daw Aung San Suu Kyi was unhurt and that she
did not have even a bruise. He indicated that Mr. Razali
Ismail, Special Envoy of the United Nations
Secretary-General, had said in a press interview that "I can assure you
that she is well and in good spirits ... no injury on the face ... no scratch,
nothing". He wished to stress that the authorities had to take necessary
measures to ensure the safety of Daw Aung San Suu Kyi and other members of the
NLD. These measures were temporary in nature. The Government would continue its
policy of national reconciliation and its policy of transition to democracy in
a systematic and step-by-step manner.
In conclusion, the Government representative stated that Myanmar's
track record on the elimination of forced labour had shown sustained and
significant progress. The role of the International Labour Organization should
be to assist its member States in the implementation of the ILO core
Conventions, and not to assume the negative role of censuring a member
State which had a genuine intention
to implement the core Conventions of the ILO but had to overcome certain
constraints and difficulties.
The Worker members
requested that the Government provide the Committee of Experts with all the
legislative texts pertaining to freedom of association. Furthermore, in the
light of recent events in the country, they once again pleaded with the
Government for the release of Ms. Aung San Suu Kyi and to allow the reopening
of all the offices of the NLD so that a dialogue of national conciliation could
be taken up again. They requested that the new conclusions contain the same
elements as those adopted in 2001. In response to the arguments of the
Government representative that change takes time and that
things cannot change overnight, they reminded the Committee that it had
been making the same comments for more than 40 years regarding the failure to
apply Convention No. 87 in law and in practice. Based on these observations,
they requested the conclusions be included in a special paragraph of the report
and that, furthermore, they reflect the continuing failure to apply the
Convention.
The Employer members
noted that, while there were some signs of incipient progress with regard to
the application by Myanmar of Convention No. 29, which had again been discussed
during a special sitting of the Committee, this was not at all the case for
Convention No. 87. The Government again provided only general information and
had not referred to any specific measure taken. The Employer members therefore
agreed with the Worker members that a special paragraph on this case should be
included in the Committee's report, making reference to the continued failure
to apply the Convention.
The Committee noted
the statements by the Government representative and the discussion which
followed. It recalled that the Committee had discussed this serious case on
many occasions in the last ten years and that its latest conclusions had been
included in a special paragraph because of the continued failure of the
Government to apply the Convention.
Notwithstanding, the
Committee was once again obliged to note the lack of real progress towards the
establishment of a legislative framework for the creation of free and
independent organizations. The Committee profoundly deplored the persistence of
serious discrepancies between national legislation and the provisions of the
Convention which had been ratified almost 50 years ago. The Committee regretted
that the information provided by the Government on the existence of workers'
associations had not solved the problems raised by the Committee of Experts
towards implementing the Convention.
Concerned about the
total lack of progress towards implementing this Convention, the Committee
strongly insisted once again that the Government urgently adopt the necessary
measures and mechanisms for guaranteeing, both in law and in practice, the
right of workers and employers to affiliate themselves with the organizations
of their own choosing, without previous authorization, and the right for these
organizations to affiliate themselves with federations, confederations and
international organizations without the interference of state authorities. The
Committee emphasized that respect for civil liberties was crucial for the
exercise of freedom of association and therefore urged the Government to take
the necessary measures so that workers and employers could exercise the rights
guaranteed by the Convention in a climate of full security and in the absence
of threats or fear. Furthermore, the Committee urged the Government to provide
the Committee of Experts, next year, with all relevant draft legislation and
existing legislation so that it could be studied, and to provide a detailed
report on the concrete measures taken to ensure improved compliance with the
Convention. The Committee expressed the firm hope it would be able to note
significant progress next year.
The Committee decided
to include its conclusions in a special paragraph in its report. It also
decided to mention this case as a case of continued failure to apply the
Convention.
The Government
representative stated that in the light of the full cooperation and genuine
good will expressed by the Government of Myanmar, the Committee should not have
decided to include this case in a special paragraph. The Government
representative reserved his delegation's position on the conclusions adopted,
in particular on the elements concerning the political situation in the
country.
[This text has been extracted from Provisional Record 24
(Part 2) of the International Labour Conference 91st session (2003) http://www.ilo.org/public/english/standards/relm/ilc/ilc91/pdf/pr-24p2.pdf
]