INTERNATIONAL LABOUR CONFERENCE

I. Brief summary of developments
since June 2003

1. In the conclusions it adopted last year at the close of the special sitting concerning the application by Myanmar of the Forced Labour Convention, 1930 (No. 29), the Committee on the Application of Standards inter alia noted with appreciation the Government’s cooperation with the ILO Liaison Officer in Myanmar, but had to note that the measures taken by the Government still had not resulted in tangible progress in the application of the Convention. The Committee welcomed the fact that the Government and the ILO had agreed on 27 May 2003 on a joint Plan of Action for the elimination of forced labour and expressed its support for this Plan, but deplored the situation created by recent events in Myanmar, noting that a climate of uncertainty and intimidation did not provide an environment in which the Plan of Action, and in particular the Facilitator mechanism which it established, could be implemented in a credible manner. The Committee expressed the hope that the implementation of the joint Plan of Action would go ahead as soon as the Director-General considered that the conditions were met for its effective implementation. The following brief overview of the main developments since its last session should be of interest to the Committee.

2. At its 288th Session (November 2003), the Governing Body had before it two reports from the Liaison Officer on her activities and other developments since June 2003. [1] The Governing Body endorsed the Chairperson’s conclusions, in particular regarding the importance he felt should be accorded to the introductory statement made by the representative of Myanmar, from which it appeared that the Myanmar authorities were in agreement that the representatives of the Director-General should undertake, according to the modalities that had been successfully applied previously, a complete review of the situation with the aim of an implementation of the Plan of Action as rapidly as possible. On this basis, the Governing Body agreed to postpone until its March 2004 session the consideration of the proposal to reactivate the measures envisaged under the resolution adopted in June 2000 by the Conference, on the understanding that a complete report on the situation, with appropriate recommendations, would be submitted to it by the Director-General.

3. The Liaison Officer, Ms. Hông-Trang Perret Nguyen, completed her appointment at the end of November 2003. Mr. Richard Horsey was appointed Liaison Officer ad interim from 1 December.

4. The 289th Session (March 2004) of the Governing Body had before it three reports: (i) a report from the Liaison Officer a.i. on his activities, [2] (ii) a report of the preliminary phase of an evaluation visit to Yangon under the November 2003 understanding reached by the Governing Body, carried out by Mr. Francis Maupain, Special Adviser to the ILO Director-General, together with the Liaison Officer a.i., [3] and (iii) a report on the latest developments in the case of certain persons sentenced to death for high treason, including the observations of the future Facilitator concerning his visit to two of the detained persons. [4] The Governing Body concluded that while positive developments had taken place since November 2003 and the authorities had demonstrated an openness to cooperate, the discovery of a court judgement against certain persons in relation to contacts or exchange of information with the ILO had undermined the credibility and prospects for future cooperation. The conclusions identified three separate concerns which had been expressed. The first concern was that contacts or exchange of information with the ILO could in any way have judicial consequences in Myanmar. In this regard it took note of the assurances given by the Myanmar Ambassador and the Minister for Labour. It also supported the future Facilitator’s clear recommendations for action as regards the persons involved. The second concern was that contacts with third parties on matters of concern to the ILO could similarly be punished, as it may call into question freedom of association principles. The third concern was whether in light of the court judgement the Plan of Action, and more specifically the Facilitator mechanism, could be credibly implemented. The Office was to examine this question more thoroughly in light of the results of the review of the recent cases and any further assurances provided by the Government and report on the results of this examination to the Officers of the Governing Body, which should be found sufficiently convincing before proceeding to the implementation of the Plan of Action.

II. Latest developments since the 289th Session of the Governing Body
(March 2004)

Activities of the Liaison Officer a.i.

5. On 9 April the Liaison Officer a.i. met with the Minister for Labour in order to discuss the outcome of the Governing Body debate and the steps which could be envisaged to give effect to the Governing Body’s conclusions. The Liaison Officer a.i. had further meetings with the Minister on 7 and 24 May, together with the informal facilitator Mr. de Riedmatten.

6. In a meeting on 29 April with the Director-General of the Myanmar Department of Labour, the Liaison Officer a.i. had the opportunity to discuss matters relating to the practical elimination of forced labour. A meeting on 5 May with the Convention 29 Implementation Committee provided the opportunity to have more detailed discussions in this regard, as set out in paragraphs 18-20 below. In a subsequent meeting on 18 May with the Director-General of the Department of Labour, the Liaison Officer a.i. was able to reiterate some of the comments and concerns that he had expressed in the meeting with the Convention 29 Implementation Committee.

7. In addition to these meetings with the authorities, the Liaison Officer a.i. also had the opportunity to have discussions with the diplomatic community in Yangon and Bangkok, as well as with representatives of United Nations agencies, international non-governmental organizations and the International Committee of the Red Cross.

8. From 10 to 15 May, the Liaison Officer a.i. travelled to Chin State. [5] This trip was conducted independently of the authorities. The Liaison Officer a.i. was able to travel to all areas that he wished without any restrictions or escort, and was able to meet freely with a range of persons, as well as with members of the Chin State Peace and Development Council including its Secretary.

Developments on specific allegations

9. Since the finalization of his report to the 289th Session of the Governing Body in March, the Liaison Officer a.i. has received a considerable number of additional complaints, mostly from alleged victims or their representatives, concerning incidents of forced labour. This brings the total number of complaints received so far in 2004 to 40. The Liaison Officer a.i. has now transmitted 21 of these cases to the Convention 29 Implementation Committee for investigation and action. [6] In two further cases, the individuals who presented allegations to the Liaison Officer a.i. had also lodged direct complaints with a Myanmar court under section 374 of the Penal Code. This is the first time that a complaint has been lodged under this section of the Penal Code. [7] In these cases, the Liaison Officer a.i. wrote to the Convention 29 Implementation Committee informing it that he had received copies of the complaints and underlining that, particularly as these were the first complaints of this kind and as such could be expected to generate considerable interest, it was important for the credibility of the process that they be handled in a fully transparent manner. He indicated that he would remain in contact with the complainants throughout the case and asked that he be kept informed of developments.

10. On 12 March the Liaison Officer a.i. transmitted to the Convention 29 Implementation Committee an allegation of forced labour that he had received from an individual from Naukmee village in Bogalay township (Ayeyawaddy Division). This individual alleged that they had very recently been forced by the local authorities to participate in the upgrading of a village access road along with hundreds of other villagers from several villages in the area. The individual also alleged that forced labour had been imposed for a number of other projects in the recent past.

11. On 7 April the Liaison Officer a.i. transmitted to the Convention 29 Implementation Committee an allegation of forced labour that he had received from a number of individuals from Toungup township (Rakhine State). These individuals alleged that an army battalion had very recently forced them and around 800 other villagers from several villages in the area to work under difficult conditions on the construction of embankments as part of a land reclamation project. The Liaison Officer a.i. also received a separate allegation containing similar information concerning the same project.

12. On 9 April the Liaison Officer a.i. transmitted to the Convention 29 Implementation Committee three further allegations of forced labour that he had received. The first of these allegations was made by three individuals from Pantanaw township (Ayeyawaddy Division). These individuals alleged that villagers from one village tract in the area were currently being forced by the local authorities to carry out guard duty at a local official’s house and at a nearby fish-breeding project being implemented by the local authorities. They also had to work clearing land for a football field.

13. The second allegation transmitted to the Committee on 9 April was made by an individual from Magu village tract in Bogalay township (Ayeyawaddy Division). According to this allegation, two villagers were required by the local authorities at all times for general duties at the village tract office. Villagers carried out this duty on a rotation basis, and anyone who failed to be present was subject to a fine. Villagers were also forced to participate in other projects, such as constructing embankments and widening the access road. Copies of two orders from the local authorities requisitioning such labour were provided.

14. The third allegation transmitted to the Committee on 9 April was made by an individual from Ama village tract in Bogalay township (Ayeyawaddy Division). According to this allegation, one person from each household had been forced by the local authorities for the previous three weeks to participate in the construction of 13 government offices as part of a project to upgrade Ama to a sub-township.

15. On 29 April the Liaison Officer a.i. transmitted to the Convention 29 Implementation Committee an allegation of forced labour that he had received from an individual from Monywa township (Sagaing Division). According to this allegation, villagers from five villages were being forced to work on the resurfacing with rocks of a five-mile section of road. In addition to the labour the villagers had to provide the rock chippings, which entailed financial costs.

16. On 20 May the Liaison Officer a.i. transmitted to the Convention 29 Implementation Committee a case of forced labour that had come to his attention during his recent visit to Chin State, including photographs he had taken showing the nature and scope of the work. The Liaison Officer a.i. had found that work was under way at the time of his visit to Tiddim and Falam towns to widen the main road passing through these towns. The households along these roads were required to carry out this work, which included considerable excavation of the steep hill into which the road was cut, as well as the construction of a high retaining wall and surfacing of the newly widened section with rock.

17. In letters dated 11 and 18 March, and 8, 23 and 30 April, the Liaison Officer a.i. transmitted to the Convention 29 Implementation Committee nine detailed allegations concerning forced recruitment into the army. Information concerning the alleged circumstances of the recruitment, together with copies of identification documents of the boys, was provided to the Committee. Seven of these allegations concerned the forcible recruitment of boys between the ages of 13 and 16. The Liaison Officer a.i. requested the Committee to ensure that urgent action was taken to verify these allegations in order that, if they were confirmed, these children could be returned to the care of their families as soon as possible and an urgent investigation then carried out into the circumstances of their recruitment so that any person found to have acted illegally could be prosecuted. Of the remaining two cases, one concerned a 15-year-old boy who it was alleged was forcibly recruited into the army, but then ran away after two months and resumed his education. He was subsequently arrested and sentenced by court martial to four years’ imprisonment for desertion. The Liaison Officer a.i. requested the Committee to ensure that an urgent investigation was carried out in order that, if the information was confirmed, the court martial verdict would be reviewed and the individual released as appropriate. The other case concerned a 13-year-old boy who it was alleged was recruited into the military against his will. A few months later, after completing basic training and being posted to a battalion, he was allowed a home visit and subsequently did not return to his battalion. He was therefore now facing the possibility of being arrested and court-martialled for desertion. The Liaison Officer a.i. requested the Committee to ensure that urgent action was taken to verify this information in order that, if it was confirmed, the individual could be given a formal discharge from the military and assurances that no action would be taken against him. In both of these cases, the Liaison Officer a.i. also requested the Committee, if the information was confirmed, to ensure that investigations were carried out into the circumstances of recruitment so that any person found to have acted illegally could be prosecuted.

18. Meeting with the Convention 29 Implementation Committee. On 5 May the Liaison Officer a.i. met with the Implementation Committee and was briefed on the recent work of the Committee and the action taken in light of the various allegations, as detailed below. The Liaison Officer a.i. thanked the Committee for the information on its work and for the cooperation that he had received. The Liaison Officer a.i. noted the increasing number of allegations he was receiving from individuals, as well as the first complaint under section 374 of the Penal Code. This demonstrated not only a degree of confidence in the ILO, but also showed that complainants had a degree of confidence that the authorities would take action in cases of forced labour. It was important that the Committee continue to take concrete and credible action in response to allegations. In this regard, the Liaison Officer a.i. noted that most of the allegations transmitted in the last few months were still under investigation, and he was still awaiting written reports on those investigations that had been completed. So far, none of the allegations that had been brought to the attention of the Committee had been found by the Committee to be correct, and the Committee had not found any cases of forced labour through its field observation teams. [8] The Liaison Officer a.i. was aware that in some cases forced labour practices had been stopped and administrative action had been taken against local officials as a result of allegations that he had transmitted. However, if the official position of the Committee continued to be that the allegations were unfounded, this would inevitably cast doubt on the credibility of the Committee and its work, particularly given the increasing number of allegations. These comments and concerns were reiterated by the Liaison Officer a.i. in a letter to the Committee following the meeting, and in subsequent meetings with the Minister for Labour and the Director-General of the Department of Labour.

19. Detailed responses to allegations. During the Implementation Committee meeting, the representative of the Ministry of Defence provided information on action that had been taken with regard to allegations concerning the military. He indicated that the allegation of forced labour in Thandaung township (Kayin State) transmitted by the Liaison Officer a.i. after his visit to the area [9] was still under investigation. As regards the nine allegations of forced recruitment, investigations had been completed in four cases. In three cases, the information transmitted by the Liaison Officer a.i. had been confirmed. However, no information was provided on any action that had been taken to return these boys to their families or to investigate the circumstances of their recruitment. In the fourth case, the investigation had found that the information was incorrect as no person fitting the description in the allegation had been located in the battalion mentioned. The other five cases were still under investigation. The representative of the Ministry of Defence then gave some details on the recruitment procedure used by the military. He underlined that all soldiers were recruited voluntarily and had to be over the age of 18. In 2003, 75 recruits had been rejected as they had been found to be under age. If information was subsequently received that recruitment procedures had been violated and a recruit had not been voluntarily recruited or was under age, the case was investigated and the recruit discharged as appropriate. As a result of such investigations, there had been 68 discharges in 2002, and 12 discharges in 2003. Officials found to have violated recruitment procedures had action taken against them. There had been 17 such cases in 2002 and five in 2003.

20. The Committee then provided information on action that had been taken on allegations concerning local authorities. As regards the allegation of forced labour in Twantay township (Yangon Division), [10] the Committee indicated that this allegation was unfounded, but that the district chairman had nevertheless been removed from his post for “being a burden to the people”. This was confirmed in a letter from the Director-General of the Department of General Administration received that day. The remaining allegations were still under investigation.

21. On 26 May the Liaison Officer a.i. received information from the Ministry of Defence, transmitted in a letter from the Department of Labour. According to this information, investigations had been carried out into five allegations of forced recruitment transmitted by the Liaison Officer a.i. In one case, it was found that the person was not serving in the battalion alleged, and in the other four cases the information in the allegations was confirmed, except as regards the dates of birth of the persons concerned, which in all cases were such that the persons would have been 18 or over at the time of recruitment. [11] In three cases the information indicated that after interviewing the persons and confirming that they were voluntary recruits it had been learned that their parents “had been persuaded to make false allegations”. In the fourth case it was indicated that the person was serving a sentence for desertion. The Liaison Officer a.i. notes that he saw original identification documents (such as birth certificates and family registration lists) showing the age of the individuals in all these cases, and that copies of these were transmitted to the authorities together with the allegations. The evidence received thus contradicts the assertions of the authorities.

Developments in the high treason case

22. On 12 May the Supreme Court of Myanmar issued a judgement following an appeal on behalf of nine persons sentenced to death for high treason, including the three persons whose conviction had an ILO element.

23. On 14 May, the Liaison Officer a.i. received a letter from the Department of Labour providing some details of the Supreme Court judgement. The conviction of U Shwe Mahn for high treason had been upheld, but the sentence was commuted from death to transportation for life. [12] The convictions of Nai Min Kyi and U Aye Myint were altered to section 123 of the Penal Code (encouraging, harbouring or comforting persons guilty of high treason) and their sentence was commuted from death to three years’ imprisonment.

24. The Liaison Officer a.i. then requested that the authorities provide a copy of the Supreme Court judgement as soon as possible. The Liaison Officer a.i. reiterated this request in a letter to the Minister for Labour dated 20 May, together with a request for access to the convicted persons for himself and the informal facilitator, Mr. Léon de Riedmatten. The Liaison Officer a.i. and Mr. de Riedmatten were informed in a meeting with the Minister on 24 May that access had been granted to the three detainees the following day, and that the Supreme Court judgement would also be provided the following day.

25. On the morning of 25 May, the Liaison Officer a.i. and Mr. de Riedmatten met with the three convicted persons, U Shwe Mahn, Nai Min Kyi and U Aye Myint, in Insein Prison. The observations of Mr. de Riedmatten following this visit were transmitted to the Minister for Labour in a letter dated 25 May (this letter is reproduced in the Appendix).

26. Just as this report was being completed, the Liaison Officer a.i. received from the Myanmar authorities an authentic translation into English of the Supreme Court judgement.

27. An appropriate summary of the judgement together with any further information, including any action proposed by the Officers of the Governing Body in the framework of the conclusion adopted by the Governing Body at its March 2004 session, will be provided separately to the Committee (see paragraph 4 above).

[5] He travelled from Mandalay to Chin State via Kalemyo, returning to Mandalay via Gangaw. In Chin State he visited the townships of Tiddim, Falam and Hakha.

[6] Of the remaining cases, five were rejected on the grounds that they were not sufficiently precise or credible for action to be taken, five cases were judged not to fall within the mandate of the Liaison Officer, seven cases of forced recruitment had already been the subject of interventions by another agency, and two cases were sub judice as the complainants had made direct complaints to a court under section 374 of the Penal Code (see below).

[7] Section 374 of the Penal Code makes forced labour a criminal offence, in the following terms: “Whoever unlawfully compels any person to labour against the will of that person shall [be] punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”

[8] No new visits by field observation teams had taken place since the last meeting with the Committee on 29 January. However, in a letter dated 26 May the Director-General of the Department of Labour (who serves as Joint Secretary of the Implementation Committee) indicated that he had held a two-day workshop for 120 participants, including a number of senior officials, on “Raising awareness of ILO Convention 29” in Myeik township, Tanintharyi Division.

[9] This allegation was transmitted to the Committee on 24 February. See GB.289/8, para. 18.

[10] This allegation was transmitted to the Committee on 28 January. See GB.289/8, para. 15.

[11] There were also some slight discrepancies in the dates of recruitment. Four of the five cases were those that the representative of the Ministry of Defence had provided information on in the Implementation Committee, although there were further discrepancies between his statement and the letter concerning the ages of the persons concerned.

[12] This is equivalent to a term of life imprisonment.

INTERNATIONAL LABOUR CONFERENCE	C. App./D.5
92nd Session, Geneva, June 2004
Committee on the Application of Standards