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Appendix II |
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Memorandum of the Government of Myanmar
on the Report of the Director-General to the members
of the Governing Body dated 21 May 1999
The Permanent Mission of the Union of Myanmar to the United Nations Office and other international organizations in Geneva presents its compliments to the ILO, and with reference to the Report of the Director-General to the members of the Governing Body on measures taken by the Government of Myanmar following the recommendations of the Commission of Inquiry established to examine its observance of the Forced Labour Convention, 1930 (No. 29), dated 21 May 1999, has the honour to attach herewith a Memorandum in response to the abovementioned Report.
The Permanent Mission of the Union of Myanmar would like to request that this Memorandum be treated as an official document in response to the Director-General's Report for use in any proceedings of the Governing Body and other relevant meetings.
Memorandum
Myanmar became a Member of the ILO a few months after its independence in 1948. As a responsible Member it has a long record of cooperation with the ILO and had settled several issues in the best spirit of cooperation.
It has been a consistent policy of successive governments of Myanmar to promote the welfare of labour. Myanmar is determined to build a society where peace and prosperity prevail and where rights of women and children are given all the encouragement and protection which they rightly deserve.
From around 1990 allegations were made to the effect that there is use of forced labour in Myanmar. Myanmar strongly feels that these allegations were largely the result of misconceptions and misunderstandings of the situation and the mentality of the Myanmar people.
Since a sound infrastructure is essential for economic development, the Government of Myanmar has placed special emphasis on this sector. Hence, a substantial effort to improve the infrastructure of the country's economy by building roads, bridges, dams and reservoirs has been undertaken. Realizing the benefits to the country from these projects, people have traditionally contributed labour so that they can be completed sooner. Moreover, it is Myanmar's thinking that "you reap what you sow before death in the present world or in the future cycles of life".
This is the background thinking of our people, and without understanding of these facts people tend to make all kinds of false allegations.
International organizations must not be used as forums to put pressure on member States by the powerful and influential quarters as a means to achieve their political objectives.
However, as stated earlier, since the early 1990s, Myanmar has been the subject of political pressure from some quarters who do not understand the reality in Myanmar. They tend to act largely on information from anti-government elements. They are making these politically motivated allegations to tarnish the image of the Government using every opportunity including various international fora.
In a move to further apply political pressure on Myanmar the anti-government elements succeeded through false allegations in persuading a few members of the Workers' group to file a complaint against Myanmar under article 26 of the ILO Constitution. This resulted in the formation of the Commission of Inquiry in 1996. Myanmar on the other hand very firmly stood up against such allegations. However, the Commission, based on reports of certain terrorist organizations, both inside and outside Myanmar, and also on information given by certain other sources, came up with recommendations in July 1998 that:
- Myanmar must bring the Village Act, 1907, and Towns Act, 1907, in line with the forced labour Convention namely: Convention No. 29 of 1930. Certain provisions of this law are also to be put in line with the Convention;
- to take measures to stop current practice through public acts and make them public and not through secret directives;
- to enforce penalties upon offenders for extraction of forced or compulsory labour.
As we have said earlier, Myanmar is building a modern nation and a society where peace and prosperity shall prevail. In this process, Myanmar does realize that these recommendations were based on false allegations. But with the spirit of cooperation, goodwill and sincerity towards the ILO, it never rejected these recommendations. Furthermore, it is in the process of revising on its own independent sovereign right old laws that are not in conformity with the present situation. Under public international law, it has every right to perform this task on its own.
Myanmar finds that these recommendations were not too difficult to accommodate. But at the same time, one must take into account that Myanmar is inhabited by some 135 national races, with a changing economic system.
Thus, when Myanmar received the recommendations and the report of the Commission it made several communications to the ILO which shows that these recommendations were not neglected. As evidence, these communications are: letters dated 23 September 1998, 4 February 1999, 18 February 1999, 12 May 1999 and 18 May 1999.
The fact remains on record that in the letter dated 23 September 1998, the Ministry of Labour said, "We do not see any difficulty in implementing the recommendations contained in paragraph 539 of the report".
True to its word, Myanmar firmly acted in accordance with its legal system and acted in accordance with the law of the land.
The recommendations made by the Commission were: firstly, that the Village Act and Towns Act be brought in line with Convention No. 29. The essence of the recommendation "brought in line" is in the domain of Convention No. 29. But on the other hand, it is the domain of national law or municipal law as to how to put into effect the provisions of the Convention which is not in the domain of the Convention. At this juncture, it is to be pointed out that legal systems of the world differ from State to State. One legal system in a State cannot be the same with the system of another. The modus operandi for putting in effect the essence of the Convention into national law might be different between two States.
Myanmar in its own legal system has on 14 May 1999 put a "stop" to the offending provisions of the above two laws through an Order from the Legislature to the ministry concerned not to exercise powers for the offending provisions under these two laws. In Myanmar's legal system, the State Peace and Development Council is the Legislature of Myanmar. As in all other countries under constitutional law, it is above the Executive. Executive encompasses the various ministries which includes the Ministry of Home Affairs, which implement these two laws. The Memorandum of the State Peace and Development Council was issued on 14 May 1999 and under it the Ministry of Home Affairs issued Order No. 1/99 of 14 May 1999 ordering all implementing authorities not to exercise powers under Towns Act, section 7, subsection (1)(L) and (m), and section 9 and 9A, and similarly in the Village Act, section 8, subsection (1)(g), (n) and (o), and section 11(d) and section 12. This Order has the force of law to stop all implementing authorities from exercising the offending powers of these provisions.
Thus, under our legal system this measure is taken in compliance with the related recommendation of the Commission of Inquiry.
The second recommendation of the Commission of Inquiry stipulates that the Order be made public. The Order has been made public and distributed immediately to 16 authorities. Besides this step, it will be published in the Myanmar Gazette where all laws are published. There is complete transparency. For the sake of the record, it has been circulated for action to the following 16 authorities:
- Office of the Chairman of the State Peace and Development Council.
- Office of the State Peace and Development Council.
- Office of the Government.
- Supreme Court.
- Office of the Attorney-General.
- Office of the Auditor-General.
- Public Services Selection and Training Board.
- All ministries.
- Director-General, Department of General Administration (forwarded for information and further circulation of the copy of this Order to the State, divisional, district and township administrative officers subordinate to him).
- Police Major General, Myanmar Police Force (forwarded for information and for further circulation of the copy of this Order to the relevant departments and organizations subordinate to him).
- Director-General, Bureau of Special Investigation.
- Director-General, Prisons Department.
- All State and Divisional Peace and Development Councils.
- All District Peace and Development Councils.
- All Township Peace and Development Councils (forwarded for information and for further circulation of the copy of this Order to the Chairman of the Ward and Village Tract Peace and Development Councils subordinate to him).
- Managing Director, Printing and Publishing Enterprise (with a request for publication in the Myanmar Gazette).
Thus Myanmar firmly believes that the second recommendation is fully complied with.
The third recommendation says that penalties should be imposed for persons under section 374 of the Penal Code for transgression. It is pertinent to draw attention to paragraph 6 of the above-mentioned Order which reads: "any person who fails to abide by this Order shall have action taken against him under existing laws". This is beyond all reasonable doubt that offenders will be punished under section 374 of the Penal Code which is enacted as follows:
Unlawful compulsory labour
374. 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.
Despite these positive actions and steps taken decisively and effectively by the Government, the ILO office on 21 May 1999 issued the "Report of the Director-General to the members of the Governing Body on measures taken by the Government of Myanmar following the recommendations of the Commission of Inquiry established to examine its observance of the Forced Labour Convention, 1930" that:
- the Village and Towns Act had not been "amended";
- in actual practice, forced or compulsory labour continues to be imposed in a widespread manner;
- no action appears to be have been taken under section 374 of the Penal Code to punish those extracting forced labour.
The facts of the report are inaccurate. The alleged facts mentioned in the report are based on allegations supposed to have taken place prior to 14 May 1999. Not a single allegation is found after the Order of 14 May 1999 was issued. Thus, in legal language, one can say of this situation that "things speak for themselves". If there be any alleged acts that supposedly took place after 14 May 1999, the authorities should be directly informed of such allegations.
Myanmar on the other hand continues to be objective and steadfast in its course of building a modern nation where peace and prosperity prevails, taking into account the circumstances as they stand today. Moreover, Myanmar is in the process of making a new Constitution, when after its completion, all laws will be adjusted to meet the requirements of a modern nation.
Meanwhile, Myanmar takes the spirit that it has "charity towards all and malice towards none". There is a saying in law that justice must not only be done but must also be seen to be done. Justice must also be fair. Thus, Myanmar appeals to all Members of the ILO to understand the true facts and seek your help to support it in the discussions at the ILC.
Observations and conclusions
The most pertinent observations to be made of the report of the ILO Office dated 21 May 1999 are on the three negative points contained in paragraph 61.
Although these three points have been adequately countered and addressed in Order No. 1/99 dated 14 May 1999 issued by the Ministry of Home Affairs of the Government of the Union of Myanmar, which is the Order Directing Not to Exercise Powers Under Certain Provisions of the Towns Act, 1907, and the Village Act, 1907, the explanations given in Order 1/99 have not been mentioned in the Director-General's Report, except for the fact that Order 1/99 was simply annexed as Appendix III to the Report.
It may be recalled that in an earlier communication from the Director-General of the ILO, some deadlines had been mentioned for a response to be received from the Myanmar side. Please note that Order 1/99 was issued on 14 May 1999 which, inter alia, specifically orders that the offending paragraphs of the Village Act, 1907, and Towns Act, 1907, not be exercised; that any and all unpaid labour or compulsory labour be terminated henceforth; that any person who fails to abide by this Order have action taken against him; that Order 1/99 is not a secret order but is circulated to all government ministries among others; that it be publicly and openly published in the Myanmar Gazette for all to see, complies with all recommendations of the Commission of Inquiry.
Hence, it can be seen that Myanmar had adequately and specifically taken action to respond to, and to rectify the provisions of the Village and Towns Acts, and also taken additional measures as called for in the recommendations of the Commission of Inquiry. All this had been done in a timely manner.
But the question arises as to why such action taken by the Myanmar authorities was not reflected in the Director-General's Report, which, as a result led to the three negative observations as seen in paragraph 61 of the Report.
The answer would seem to be that Order 1/99 was issued only on 14 May, which was only five working days away from the 21 May deadline. It may be concluded that time constraints prevented any examination of this Order and compelled the drafters of this Report to only affix it to the Report as Appendix III.
But nevertheless, this time constraint cannot be used as an argument to the effect that Myanmar had not complied with the recommendations.
The Report in question contains oversights and omissions as stated above. Furthermore, the following additional observations and conclusions can be found.
The Report is full of unfounded and biased charges deliberately levelled at Myanmar and the Myanmar Government.
The alleged facts in this Report are manifestly false accusations concocted with evil intent to bring about the destruction of Myanmar by Myanmar expatriate organizations abroad and renegade groups that oppose all measures undertaken by the Myanmar Government. They are also based on blatantly false accusations made verbally, in writing and in the form of announcements by the National League for Democracy (NLD), whose only aim is to create difficulties for the Government to place it in an untenable position.
At present the Government is implementing construction projects with systematic planning and proper budget appropriations. Moreover most of the work being done on these projects is through the use of mechanized implements and machinery. In any project where human labour has to be unavoidably employed, there is a budget allotment for payment of wages to the workers. Any worker so employed is paid fair wages and there is not a single instance or a shred of evidence that forced labour is being used in these projects.
Work on the highways under construction in various regions, including the union highway in the Shan State, and new railroads being laid, are being done by servicemen of the armed forces. There is not a single civilian working on them.
Any jobs in which the people are involved are confined to the digging of small irrigation ditches to convey water to their own private cultivation plots. The larger state projects for the building of irrigation canals and dams do not use forced or conscripted labour of civilians. As stated, if people are at work at all, they are working in their own interest and according to their own plans and schedules on their privately owned plots of land.
State construction projects employ only military servicemen. So the accusation that the Government is using forced labour on these projects is baseless and flagrantly false. Since only members of the armed forces are employed in the construction of rail and motor roads, to say that forced labour is being used is utterly meaningless.
Other ongoing projects such as the reclamation of vacant and fallow lands and the construction of residential housing and hotels are all ventures by private entrepreneurs who have made capital investments. The use of forced labour in such cases is totally out of the question. In fact when incidents arise over labour grievances, the Government stands firmly on the side of the workers in settling such disputes.
Concerning the charge that the army conscripts porters in its military operations, it could be said that this was the practice in former times when the insurgencies were rampant. But the fact remains that these porters were always paid and the defence budget always had an allotment for payment of their wages. These porters enjoyed the same rights as a soldier. He was given the same rations and paid the same wages. Moreover, a porter, if wounded, obtained equal compensation with a serving soldier and he was entitled to the same hardship allowances. But this issue of military porters is no longer relevant and has become a non-issue since military operations are no longer an urgent necessity.
The Myanmar Government categorically refutes all the false information deliberately fed by the NLD.
An esteemed organization like the ILO should not give credence to fabricated news and lies supplied by those who only see Myanmar and the present Government through hostile and resentful eyes, and who are moreover bent upon destroying the country to put the Government in a predicament.
Finally, it is relevant to reiterate that Myanmar, as a responsible Member of the ILO, has a long record of cooperation with the ILO, and has in the past settled issues in a spirit of cooperation. This spirit of cooperation will continue in the future.
As examples of this cooperation, Myanmar had signed a considerable number of ILO Conventions, including some core Conventions.
At present the ILO is in the process of inviting and persuading countries that have not done so, to sign, to ratify or accede to those Conventions that they had not yet become State parties.
In this positive atmosphere being created at present by the Members of the ILO, it would indeed be unfortunate, even counter-productive, to have more and more ILO Members become State parties to core Conventions, if one Member who had signed a core Convention, in this case the Union of Myanmar, is singled out unfairly and been unduly criticized.
Such an exercise will no doubt serve as a reminder to those who have not yet signed core Conventions to maintain their status quo, and will certainly help to dissuade them from signing the core Conventions, much to the detriment of the ILO membership as a whole.
7 June 1999.