Observación (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (2008)

Historical background

1. In previous comments the Committee has drawn attention to gross breaches of the Convention by the Government of Myanmar and the failure by the Government to implement the recommendations of the Commission of Inquiry, appointed by the Governing Body in March 1997.

2. The Commission of Inquiry, appointed in 1997 under article 26 of the Constitution, concluded that the Convention was violated in national law and in practice in a widespread and systematic manner, and made the following recommendations:

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

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

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

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

3. The continued failure of the Government to comply with those recommendations and the observations of the Committee of Experts as well as 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. The detailed history of this extremely serious case has been set out at length in previous observations of this Committee in recent years.

4. Each of the ILO bodies, in discussing this case, had focused attention on the recommendations of the Commission of Inquiry. The Committee of Experts has in its previous observations identified four areas in which measures should be taken by the Government to achieve those recommendations. Specifically, the Committee indicated the following measures:

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

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

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

n      ensuring the enforcement of the prohibition of forced labour.

Developments since the Committee’s last observation

5. There has been a number of discussions and conclusions by ILO bodies and also further documentation received which the Committee has considered in the course of making this observation. In particular the Committee notes:

n      the discussions and conclusions of the Conference Committee on the Application of Standards during the 96th Session of the International Labour Conference in June 2007;

n      the documents submitted to the Governing Body at its 298th and 300th Sessions (March and November 2007) as well as the discussions and conclusions of the Governing Body during the sessions;

n      the comments made by the International Trade Union Confederation (ITUC) in a communication received on 31 August 2007 together with the detailed appendices of some 740 pages;

n      the reports of the Government of Myanmar received on 17 and 20 August, 10 September and 12 and 23 October as well as 3 December 2007; and

n      the Supplementary Understanding (SU) of 26 February 2007 to the earlier Understanding of 19 March 2003 concerning the appointment of an ILO Liaison Officer in Myanmar.

The Supplementary Understanding of 26 February 2007

6. The Committee notes at this point that the SU is a very important development and its significance is discussed in greater detail towards the end of this observation. It is important for the SU to be viewed in the context of the other documentation, discussions and conclusions referred to above.

7. The SU concerns the appointment and role of an ILO Liaison Officer in Myanmar, and was concluded after long negotiations between the ILO and the Government of Myanmar. The SU provides for a new complaints mechanism to be established and put into operation, and has as its prime object “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”. The mechanism was to be implemented on a trial basis over a period of 12 months and could thereafter be extended by mutual agreement (GB.298/5/1, appendix).

8. The role of the Liaison Officer in the context of the SU and the impact of his work in the circumstances in which he was required to perform it in the country, was a major subject of later discussion in ILO bodies.

Discussion and conclusions of the Conference Committee
on the Application of Standards

9. The conclusion of the Conference Committee during the 96th Session in June 2007, was that, whilst the complaints mechanism set up under the SU was continuing to function, it had to be assessed against the ultimate goal of eliminating forced labour.

10. In this connection, the Committee notes that the Committee on the Application of Standards in its conclusions in June 2007 (ILC, 96th Session, Provisional Record No. 22, Part 3) “observed that the mechanism had to be assessed against the ultimate goal of eliminating forced labour, and it remained to be seen what the impact would be”; and that the recent documentation submitted to the Governing Body stated that “it is both physically and financially very difficult for victims of forced labour or their relatives to lodge a complaint if they live outside Yangon” noting that “informal networks have been developed” which “although valuable … do not necessarily extend to all parts of the country” (GB.300/8, paragraph 9). The Committee also notes from the documentation that “regarding the mechanism set up by the Supplementary Understanding, it is not possible today to say to what extent it is fully functional after the civil unrest and its suppression, and thus to what extent experiences from it can be built upon” (GB.300/8, Add, paragraph 9).

Discussions in the Governing Body

11. The Committee notes that the reports to the Governing Body at its 300th Session in November 2007 regarding the progress of the complaints mechanism indicated that as of 7 November 2007, the Liaison Officer had received 56 complaints (GB.300/8 (Add.), paragraph 3). Of those complaints, 19 were assessed as falling outside the mandate of the Liaison Officer and 24 were formally submitted for investigation and appropriate action to the Deputy Minister of Labour in his capacity as Chairman of the Government Working Group on Forced Labour. Four complaints were closed after being assessed as having an insufficient basis to proceed, and nine complaints were still being processed or could not proceed until further information was received from the complainants (GB. 300/8, paragraph 5 and GB.300/8 (Add.), paragraph 5).

12. In addition, the Governing Body called upon the Government to ensure that the mechanism provided by the SU remained fully functional with no further detention or harassment of complainants, facilitators or others, and that it should be fully applied to the military authorities. It considered that full attention should also be given to preventing the recruitment of child soldiers (paragraph 5). Importantly, the Governing Body also called for the putting into place of an appropriate network towards ensuring that the nationwide application of the SU, including in the combat zones, and to ensure that forced labour victims are able to easily access the complaints mechanism (paragraph 6).

Communication received from the International Trade Union Confederation

13. The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication received on 31 August 2007. Appended to this communication were 45 documents, amounting to more than 740 pages, containing extensive and detailed documentation referring to forced labour practices on the part of civil and military authorities. In many cases, the documentation refers to specific dates, detailed locations and circumstances, and specific civil bodies, military units and individual officials. The documentation covers a broad area of the country (including many parts of Chin, Kayah, Kayin, southern Mon, northern Rakhine and Shan States, and of Ayeyarwady, Bago, Mandalay and Tanintharyi Divisions) during the period from the second half of 2006 through the first half of 2007. The incidents referred to involve the alleged requisition of labour for the full range of tasks identified by the Commission of Inquiry:

–      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);

–      various infrastructure projects; and

–      cleaning/beautification of rural or urban areas.

14. The documentation includes copies of 145 written orders apparently from military and other authorities to villages in Kayin State, containing a range of demands entailing in most cases a requirement for (uncompensated) labour. It also includes photographs purporting to show people in Mon State being forced to work on military development projects, as detailed in an accompanying report. It further includes a video in which five men state that they were forced to work for the Myanmar army since April 2007 as porters, sentries, carrying out construction projects, building fences and doing various tasks in army camps, as well as being forced to provide ox carts and tractors to the army. A copy of the ITUC’s communication and its annexes was transmitted to the Government for such comments as it may wish to provide.

The Government reports

15. The Committee notes the Government’s reports received on 17 and 20 August, 10 September, 12 and 23 October, and 3 December 2007. These reports make reference to information contained in a communication from the ITUC to the Committee dated 31 August 2006 that was forwarded to the Government and to which reference was made in the Committee’s previous observation. The Government has not responded in detail to the information contained in the ITUC’s communication, except to state its view that “most of the issues raised by the [ITUC] are totally groundless” and to note that such cases “would be covered by the mechanism to deal with the forced labour complaints under the Supplementary Understanding” agreed between the ILO and Myanmar on 26 February 2007.

16. The Committee must point out that agreement on the Supplementary Understanding and the establishment of the complaint mechanism provided for thereunder, in no way relieves the Government of its obligation under the Convention to suppress the use of forced labour. Rather, they are a means to assist the Government in meeting this obligation through the full implementation of the recommendations of the Commission of Inquiry.

17. The Committee requests the Government to respond in detail in its next report to the numerous specific allegations contained in the most recent communication from the ITUC as well as that of the previous year.

Assessment of the situation

Issuing specific and concrete instructions to the civilian and military authorities

18. The Committee notes that in its report the Government has again referred to a series of letters, directives, telegrams and rules issued by various civil and military authorities relating to the Orders prohibiting forced labour. However, as noted in its previous observation, since the Government has supplied minimal details of the content of these instructions, and given that all the indications suggest that the imposition of forced labour continues to be widespread, the Committee is yet to be convinced that clear instructions have been effectively conveyed to all civil authorities and military units. The Committee reinforces the need for appropriate publicity to be given to these Orders.

19. The Committee must also emphasize that, even if the Orders provide a statutory basis in practice for ensuring compliance with the Convention, this still falls far short of the formal repeal of the provisions of the relevant legislation requested by the Commission of Inquiry. The Committee therefore hopes that the Government will take the necessary steps to amend these provisions as soon as possible, something it has been promising to do for 40 years. The Committee also hopes that the Government will take advantage of the opportunity to bring constitutional clarity to the prohibition of forced labour.

Ensuring that the prohibition of forced labour is given wide publicity

20. In relation to ensuring that the prohibition of forced labour is given wide publicity, the Committee refers to its comment above. The Committee also notes the agreement on 26 February 2007 of a Supplementary Understanding between the ILO and the Government, which is a welcome development. The mechanism that it establishes to deal with complaints of forced labour provides an opportunity to the authorities to demonstrate that continued recourse to the practice is illegal and will be punished as a penal offence, as required by the Convention. The fact that Order No. 1/99 as supplemented by the Order of 27 October 2000, has been used as a legal basis for criminal convictions of government officials for exacting forced labour, is in line with the Committee’s conclusion in its observation published in 2001, that these Orders “could provide a statutory basis for ensuring compliance with the Convention in practice, if given bona fide effect not only by the local authorities empowered to requisition labour under the Village and Towns Acts, but also by civilian and military officers entitled to call on the assistance of local authorities under the Acts”.

21. The Committee also notes that some publicity has been given to the signing of the Supplementary Understanding and to the subsequent prosecutions of two officials for imposing forced labour (a press release on 26 February 2007; a press conference by the Director-General of the Department of Labour on 26 March 2007; and an article on the prosecutions in the New Light of Myanmar on 31 March 2007). The Committee also notes from the report submitted to the 300th Session of the Governing Body that the Government “has undertaken widespread training for administrators to raise awareness of the law and to explain the Supplementary Understanding procedure”, that “a further round of such training on a joint ILO/Ministry of Labour basis has been discussed” and that “the Government has drafted a booklet entitled Eradication of forced labour – Educational Paper No. 1”, consultations on the content and format of which are continuing prior to its dissemination throughout the administration (GB.300/8, paragraph 8).

22. The Committee considers that such publicity is vital in ensuring that the prohibition of forced labour is widely known and applied in practice, and should continue and be expanded. The Committee shares the view of the Governing Body that “an unambiguous public statement that all forms of forced labour are prohibited throughout the country and will be duly punished” from the Government of Myanmar “at the highest level” (GB.300/8, conclusions) would be extremely valuable.

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

23. In this regard, the Committee stresses the importance of its request, made regularly in previous observations and underlined in the recent conclusions of the Conference Committee on the Application of Standards, that specific instructions be issued to all military units making clear the prohibition of forced labour and the fact that this will be strictly enforced. This requires the budgeting of adequate means for the replacement of forced labour, which tends also to be unpaid, are necessary if recourse to the practice is to end.

24. Similarly, the Committee notes that the Government’s report of 17 August 2007 states that it provides a budget allotment including labour costs “for all Ministries to implement their respective projects” and that a signed statement from the Ministry of Construction indicating the sum in question is provided in an annex to the report. Again, the Committee fails to understand, if adequate resources really are provided to civil and military authorities, why it is that recourse to unpaid forced labour apparently remains widespread, particularly by the military and by local civil administrations. The Committee repeats its earlier request that the Government, in its next report, provide detailed information about the measures taken to budget for adequate means for the replacement of forced or unpaid labour.

Ensuring the enforcement of the prohibition of forced labour

25. The Committee is bound to express its concern that, as stated in the reports submitted by the Office to the Governing Body referred to above, and in the information provided by the Government, that out of 24 complaints (as of 7 November) forwarded by the Liaison Officer to the authorities for investigation and appropriate action, only one case has so far resulted in the prosecution of those responsible (Case No. 001, which led to the prosecution of two civilian officials). A number of other cases have led to administrative action against civilian officials (for example, dismissals or warnings for the officials concerned). Although seven of the cases forwarded to the authorities by the Liaison Officer involved allegations against military personnel (for forced recruitment of children into the army, and imposition of forced labour against villagers), there are so far no indications that any action, criminal or even administrative, has been taken against any military personnel. The Committee notes the recent information provided by the Government on 3 December 2007 that it has taken concrete measures to prevent recruitment of children into the military by setting up a central committee and working committees, with follow-up workshops.

26. The Committee notes the information from the Liaison Officer that the Government Working Group “appears to be more successful in achieving prompt and constructive outcomes in cases associated with civil administrations. It is more difficult to obtain timely and appropriate responses on complaints involving the military” (GB.300/8, paragraph 6). The Committee indicates that this is all the more concerning, as it has previously observed that forced labour is a particular problem in areas of the country with a heavy presence of the army.

27. The Committee reemphasizes that the illegal exaction of forced labour must continue to be punished as a penal offence, rather than an administrative issue, as required by Art. 25 of the Convention. While taking account of the measures to be taken by the Government regarding recruitment of children, it is also essential that the legal penalties be strictly enforced in cases involving military personnel, including in cases of forced recruitment of children into the armed forces.

Conclusion

28. The Committee considers that there are obvious constraints and limits on the contribution that the complaint mechanism can make to the eradication of forced labour. This is due to structural limitations on the mechanism and is magnified by the uncertainties of the present situation in the country. The mechanism can certainly provide welcome relief to individual victims by offering an objective and safe channel for complaints to be raised and addressed, and beyond this it can send a powerful signal to potential perpetrators that they are not free to act with impunity. However, the mechanism is not obviously well-suited to dealing with some of the more extreme and widespread violations in remote areas, of the kind referred to in the documentation submitted by the ITUC.

29. More fundamentally, the complaint mechanism, whilst valuable, does not address the root causes of the forced labour problem that were identified by the Commission of Inquiry and by the High-level Team (see GB.282/4). Namely, it does not address the basic governance relationships prevailing in the country, the role of the army and its self-reliance policy, and the absence of freedom of association and, more generally, freedom of assembly, which recent events have served to graphically illustrate. The prevailing situation in Myanmar, ten years after the establishment of the Commission of Inquiry, seems to provide sad support to the perception that addressing these root causes remains indispensable.

30. In the light of this, the Committee believes that the only way that genuine and lasting progress in the elimination of forced labour can be made is for the Myanmar authorities to demonstrate unambiguously their commitment to achieving that goal. This requires, beyond the agreement of the Supplementary Understanding, that the authorities establish the necessary conditions for the successful functioning of the complaint mechanism, and that they take the long overdue steps to repeal the relevant provisions of domestic legislation and adopt the appropriate legislative and regulatory framework to give effect to the recommendations of the Commission of Inquiry. The Committee remains hopeful that, having agreed the Supplementary Understanding, the Government will finally take the required steps to achieve compliance with the Convention in law and in practice and resolve one of the most serious and long-standing cases that this Committee has ever had to address.