Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

Forced Labour Convention, 1930 (No. 29) - Myanmar (Ratification: 1955)

1. The Committee has noted the Government’s reports on the application of the Convention. In examining compliance with the recommendations of the Commission of Inquiry established to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), the Committee has furthermore taken note of the following information:

- the information submitted to, and the discussions held at, the International Labour Conference at its 89th Session, (June 2001) (Provisional Record No. 19, Part Three);

- the information submitted to, and the discussions held in, the Governing Body of the ILO at its 280th Session in March 2001 (reproduced in Provisional Record No. 19, Part Three, of the 89th Session of the International Labour Conference);

- the information submitted to the Governing Body of the ILO at its 282nd Session in November 2001, including in particular the report of the High-Level Team (HLT) on "Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)" (GB.282/4 and Appendices), the presentation by the representative of the Government, and the conclusions by the Governing Body (GB.282/4/2);

- the resolution adopted by the United Nations Commission on Human Rights at its 57th Session (March-April 2001) on the situation of human rights in Myanmar (UN document E/CN.4/RES/2001/15);

- the interim report prepared by Paulo Sergio Pinheiro, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, dated 20 August 2001 (UN document A/56/312) and his statement made on 9 November 2001 to the 56th Session of the General Assembly;

- a briefing on the ILO Governing Body meeting of November 2001 given on 19 November 2001 by the Myanmar Ministry of Foreign Affairs and reported the following day in "The New Light of Myanmar" and by "Reuters";

- a communication dated 29 November 2001 with which the International Confederation of Free Trade Unions (ICFTU) submitted to the ILO fresh documentation referring to the continuing massive recourse to forced labour by military authorities in Myanmar, a copy of which was transmitted to the Government for such comments as it may wish to present on the matters raised therein.

2. Information available on the observance of the Convention by the Government of Myanmar will again be discussed in three parts, dealing with: (i) the amendment of legislation; (ii) any measures taken by the Government to stop the exaction in practice of forced or compulsory labour and information available on actual practice; and (iii) the enforcement of penalties which may be imposed under the Penal Code for the exaction of forced or compulsory labour.

I.  Amendment of legislation

3. In paragraph 470 of its report of 2 July 1998, the Commission of Inquiry noted:

… that section 11(d), read together with section 8(1)(g), (n) and (o) of the Village Act, as well as section 9(b) of the Towns Act provide for the exaction of work or services from any person residing in a village tract or in a town ward, that is, work or services for which the said person has not offered himself or herself voluntary, and that failure to comply with a requisition made under section 11(d) of the Village Act or section 9(b) of the Towns Act is punishable with penal sanctions under section 12 of the Village Act or section 9(a) of the Towns Act. Thus, these Acts provide for the exaction of "forced or compulsory labour" within the definition of Article 2(1) of the Convention.

The Commission of Inquiry further noted that the wide powers to requisition labour and services under these provisions do not come under any of the exceptions listed in Article 2, paragraph 2, of the Convention and are entirely incompatible with the Convention. Recalling that the amendment of these provisions had been promised by the Government for over 30 years, the Commission urged the Government to take the necessary steps to ensure that the Village Act and the Towns Act be brought into line with the Convention without further delay, and at the very latest by 1 May 1999 (paragraph 539(a) of the Commission’s report).

4. The Committee observes that by the end of November 2001, the amendment of the Village and Towns Acts sought by the Commission of Inquiry as well as the present Committee and promised by the Government for many years had not yet been made, nor had any draft law proposed or under consideration for that purpose been brought to the knowledge of the Committee. The Committee notes from paragraph 47 of the report of the HLT that legislative powers were exercised by the Government in June 2000 and February 2001 when it adopted the "Judiciary Law, 2000" and the "Attorney-General Law, 2001". The Committee again expresses the hope that the Village Act and the Towns Act will at last be brought into conformity with the Convention.

5. In its previous observation, the Committee noted that although the Village Act and Towns Act still needed to be amended, an "Order Directing Not to Exercize Powers Under Certain Provisions of the Town Act, 1907, and the Village Act, 1907" (No. 1/99), as modified by an "Order supplementing Order No. 1/99" dated 27 October 2000, 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. This, in the view of the Committee, called for further measures to be undertaken, as indicated by the Commission of Inquiry in its recommendations in paragraph 539(b) of its report.

II.  Measures to stop the exaction in practice of forced or compulsory
  labour and information available on actual practice

  A.  Measures to stop the exaction in practice of forced or compulsory labour

6. In its recommendations in paragraph 539(b) of its report of July 1998, the Commission of Inquiry indicated that steps to ensure that in actual practice no more forced or compulsory labour be imposed by the authorities, in particular the military, were:

… all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act. Thus, besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 [of the Commission’s report] to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required … .

7. Absence of specific and concrete instructions. In its previous observation, the Committee noted that in the absence of specific and concrete instructions to the civilian and military authorities containing a description of the various forms and manners of exaction of forced labour, the application of the provisions adopted so far turns upon the interpretation in practice of the notion of "forced labour". This cannot be taken for granted, as shown by the various Burmese terms used sometimes when labour was exacted from the population - including "loh ah pay", "voluntary" or "donated" labour. The need for clarity on the point was underscored by the Government’s recurrent attempts to link the pervasive exaction of labour and services by mainly military authorities to merit which may be gained in the Buddhist religion from spontaneously offered help. The Commission of Inquiry recalled in paragraph 539(c) of its report that "the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government’s statements" was "all the more likely to occur in actual recruitment by local or military officials".

8. In its report on the application of the Convention, the Government only refers to a directive issued on 1 November 2000 by the State Peace and Development Council (SPDC) "instructing all concerned authorities to strictly abide by the Orders issued by the Ministry of Home Affairs", i.e. Order No. 1/99 and its supplementary order, mentioned in paragraph 5 above. The Committee notes from the report of the HLT that it:

... requested on a number of occasions to be provided with authoritative translations of any additional instructions addressed to any authority, including the military. At the time of drafting its report, [in October 2001] the HLT had only received three instructions in Burmese issued by various military commanders to units under their command. Official translations of these orders have been requested but not yet received. On the basis of unofficial translations, the HLT understood that two of these orders simply reproduced the text of the order issued by Secretary-1 dated 1 November 2000. They did not contain any specifications either of the kinds of tasks for which the requisition of labour was prohibited nor the manner in which the same tasks were henceforth to be performed. The third instruction issued by the NaSaKa and dated 22 July 2001 re-stated the general prohibition on requisitioning of forced labour contained in the Orders but added that if recourse to forced labour was necessary, payment should be made accordingly.

The third instruction thus provides another example of the blurring of the borderline between compulsory and voluntary labour, referred to in paragraph 7 above, and of action which in the last resort is limited to the issue of wage payment, contrary to the specific indications in paragraph 539(b) of the report of the Commission of Inquiry, quoted in paragraph 6 above.

9. Thus, clear instructions are still required to indicate to all officials concerned, including officers at all levels of the armed forces, both the kinds of tasks for which the requisition of labour is prohibited, and the manner in which the same tasks are henceforth to be performed. The Committee hopes that the necessary detailed instructions will soon be issued, and that they will inter alia cover each of the following:

-           portering for the military (or other military/paramilitary groups, for military campaigns or regular patrols);

-           construction or repair of military camp/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);

-           national or local infrastructure projects (including roads, railways, dams, etc.);

-           cleaning/beautification of rural or urban areas;

-           the supply of materials or provisions of any kind. The prohibition of requisition also must apply to demands of money (except where due to the State or to a municipal or town committee under relevant legislation) since in practice, demands by the military for money or services are often interchangeable.

10. Publicity given to orders. While the specific and concrete instructions called for by the Commission of Inquiry appear not yet to have been adopted, the Government indicates in its report that Order No. 1/99 and its supplementing order and the Directive of the SPDC of 1 November 2000 (see paragraphs 5 and 8 above) have been circulated to all state organs and ministries including the Ministry of Defence, and to all local administrative authorities down to the Ward and Village Tract Peace and Development Councils, and that the Orders have also been publicly circulated in the monthly Myanmar Gazette to inform the entire population in a formal manner, which is the normal procedure in Myanmar for all laws, byelaws, orders etc. issued by the Government.

11. It appears from the report of the HLT that Order No. 1/99 and its supplementary order, referred to in part 5 above, were in general given considerable publicity in the period preceding the visit of the HLT, including their posting in English and Burmese on the noticeboards of Village Peace and Development Council (VPDC) offices and other public offices, and through large numbers of meetings arranged by various authorities to inform both the general population and administrative officials of the content of the Orders. Copies of the Orders have also been distributed to members of the military, the NaSaKa and the police force. The HLT however noted that there was considerable geographic variation in the dissemination of the Orders as well as in the time frame in which this dissemination occurred. In many cases persons met by the HLT said that they had been informed of the Orders by foreign radio stations rather than by the authorities. The HLT also noted that the Orders had not been disseminated at all via the mass media, nor distributed in languages other than English and Burmese, and that in particular the Orders had not been translated into any of the other major ethnic languages spoken in the country. The HLT was informed by people in different parts of the country that they could not understand the Orders that were posted in their areas because they did not read or understand Burmese well enough. The HLT further noted that the Orders had not always been disseminated together, although they need to be read in conjunction.

12. The Committee also notes the allegation made by the ICFTU in its communication dated 29 November 2001 that:

Indeed, many reports included herewith confirm that, in certain parts of the country at least, Order 1/99, its Supplementary Order and other relevant legal texts had been widely publicised. Reports abound in the ICFTU’s evidence of meetings organised in villages by the authorities to this effect, ahead of the ILO’s visit. As often as not, they had been run by senior SPDC officials dispatched from regional commands or even Rangoon.

In actual fact, villagers frequently - if not always - had to pay the costs of these "information gatherings", such as gasoline or food and drink for visiting SPDC officials. As for the "Orders" themselves, they were publicised, quite cynically, through what can only be described as "forced distribution", whereby the so-called "Green Book" issued by the authorities on the subject had to be bought at 1,000 kyats or more per copy, with typically 1 to 8 copies forcibly sold to each village; the villagers were also forced to purchase foam boards on which the "Orders" had to be posted.

The Government may wish to comment on this allegation.

13. Budgeting of adequate means. The Committee notes that the issue of allocating adequate budgetary resources to recruit voluntary wage labour for public activities which have been based on forced and unpaid labour was taken up by the HLT with the Myanmar authorities. On a number of occasions during its field trips and in Yangon, the HLT requested details on alternative means of obtaining required labour or services now that forced labour was prohibited. The HLT also inquired about any changes in budgetary arrangements. It appears from paragraphs 63 to 66 of the report of the HLT that at the time the report was finalized (29 October 2001), the HLT had not received information allowing it to conclude that the authorities had indeed provided for any real substitute for the cost-free forced labour imposed to support the military or for public works projects. The Committee again expresses the hope that the necessary detailed instructions will soon be issued, and that, in the words of paragraph 539(b) of the Commission of Inquiry’s report, provision will also be made for "the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour".

14. Monitoring machinery. In its report, the Government refers to the creation of a Ministerial Level Committee and a National Level Implementation Committee which are not only to monitor the adherence to law by local authorities, members of the armed forces and other public service personnel, but also to ensure that the local authorities and the people at the grass-root level are fully aware of the aforementioned orders nationwide. Also, Field Observation Teams (FOT) respectively led by Heads of the Departments under the Ministry of Labour and comprising of responsible personnel from the General Administration Department, Myanmar Police Force and the Department of Labour, have been dispatched to various areas to investigate the situations relating to the practice of forced labour and to observe the public awareness of these Orders. These FOTs will make frequent visits to all areas within the country. These are instances of the Government’s endeavours to abolish the practice of forced labour throughout the country. The Committee notes these indications, which need, however, to be placed in the context, already considered above, of the absence of specific and concrete instructions as well as budgetary allocations for the replacement of forced and unpaid labour. Information available on actual practice will be considered in paragraphs 15 to 22 hereafter and the punishment of offenders in paragraphs 23 et seq. below.

  B. Information available on actual practice

15. The Government’s view. In its report on the application of the Convention transmitted on 30 September 2001, the Government refers to its "endeavours to abolish the practice of forced labour throughout the country", but gives no indications as to the results so far achieved. At a briefing of heads of Foreign missions in Yangon on the ILO Governing Body meeting of November 2001, given on 19 November 2001 by the Myanmar Ministry of Foreign Affairs, as reported on 20 November by "The New Light of Myanmar" and "Reuters", Deputy Minister for Foreign Affairs, Khin Maung Win, is stated to have said that "following the transmission by the High-Level Team of some complaints regarding forced labour, the authorities concerned launched thorough investigations; and these investigations showed that the allegations were baseless and false and the authorities had replied to the ILO to this effect ...".

16. HLT findings. "Findings as regards the impact on the realities of forced labour of the steps taken to implement the Orders" are set out in paragraphs 54 to 58 of the report of the HLT as follows.

54. As the Chairperson of the HLT explained to the Chairman of the SPDC Senior General Than Shwe on 5 October 2001, the HLT members were from the outset very sceptical about the optimistic conclusions which were officially drawn from the absence of reported violations and of any criminal prosecution for such violations. Indeed, the HLT’s field trips, and its interviews conducted across the border, amply justified this scepticism.

55. The tentative conclusion that the HLT had reached after completing its three weeks of interviews and visits in Myanmar was of a very moderately positive evolution in the situation. Beyond the obvious although uneven effort at disseminating the Orders, the two groups of the HLT shared the view that a certain decrease in the imposition of forced labour had taken place, even though it was difficult to judge precisely to what extent. The HLT did, however, have doubts about the sustainability of the process over time, and was concerned about the geographical inconsistencies in the progress made, given that in some areas a considerable amount of forced labour appeared to persist. This was particularly associated with the presence of the military, especially in more remote areas.

56. The picture which emerged from discussions and interviews conducted across the border, which concentrated on the case of ethnic groups was even more disturbing. In fact, it was not very different from the situation presented in the report of the Commission of Inquiry. Forced labour in most of the forms previously identified seemed still to prevail, particularly in villages which were close to a military camp. All too often it was accompanied by acts of cruelty.

57. ... A balanced assessment of the trend in forced labour practice needs to reflect general patterns, as well as to distinguish between different types of situation. The following two general patterns seem to emerge:

(a)  In contrast to the situation reported in 1998 by the Commission of Inquiry, the HLT found no indications of the current use of forced labour on civil infrastructure projects.

(b)  In all areas for which the HLT had information it was apparent that there was a strong correlation between the presence of military camps and the practice of forced labour whether or not these troops were engaged in military activities (see paragraphs 61 and 62 below).

However, it is important to make the following distinctions:

(c)  In many areas, despite continued forced labour as a result of a military presence, there were indications that the situation had improved. The sustainability of this improvement is not clear, since it depends on the willingness of local military commanders to continue to rely less on forced labour.

(d)  In certain other areas, particularly southern Shan State and the eastern parts of Kayin State near the Thai border, the situation appeared to be particularly serious. This might be partly explained by the greater military presence in these areas, and by their remoteness, but there also appears to be an element of greater repression against these populations as a result of the ongoing insurgencies in these areas. Contrary to claims made by the authorities in Yangon, there is no indication that portering in these areas has diminished in any noticeable way as a result of any greater use of mules or because of any improvement in the road network.

(e)  The situation is also particularly serious in northern Rakhine State, which is also a remote area with a large military presence. The Muslim population in this area is disproportionately affected by forced labour; it reflects an element of discrimination against this population, which also takes the form, inter alia, of restrictions on movement.

58. There were some indications that the military had recourse to other methods of obtaining labour or services, such as requisitioning vehicles and their drivers. The HLT also met across the border in Thailand with three escaped porters. One claimed to have been arrested on an administrative matter (failure to pay full rice tax) and the other two claimed to have been arbitrarily detained. All were handed over by the police to the military and used as porters, without ever being formally charged or appearing before a judge. Their clothes were taken away by the military and they were made to wear blue convict uniforms.

17. HLT analysis. In identifying obstacles to the more effective eradication of forced labour, the HLT referred in particular to the "self-reliance" policy of the army, the uncertainty as regards substitute financial/practical arrangements (see paragraph 13 above) and institutional obstacles. In paragraphs 59 to 62 of its report, the HLT describes the "self-reliance" policy of the army and its bearing on the practice of forced labour in the following terms.

59. There seems to be little doubt whatever that non-application of the Orders by the army can hardly be attributed to ignorance. As previously noted, the Orders seem to have indeed been the object of wide - if uneven - dissemination at all levels of the military hierarchy. The disturbing evidence seems to be that these Orders are not observed by the military at the local level and that there seems to be no accountability in the case of breaches. ...

60. Rather than individual indiscipline, this attitude seems to have a lot to do with a policy of self-reliance in the context of combating insurgent ethnic movements which have, according to some, deep roots in the military history of the country. But it also has obvious practical and logistical reasons. The army does not have modern mechanical means and equipment and sometimes not even sufficient resources to feed all its soldiers. ...

61. However, this policy of self-reliance has another quite different dimension which is also relevant to the issue. The army has greatly expanded over the last decade (from 120,000 to over 350,000 soldiers according to military intelligence officers). Ten years ago, it was already supposed to participate in railway construction. However, the size of the army has not decreased in proportion with the much advertised progress of pacification. Because of continued budgetary constraints, a policy has developed whereby soldiers who are not fighting continue to receive their pay but have to engage in farming or other productive activities on lands assigned to them. Any surplus above what is needed for their subsistence is supposed to be sold on the market at below normal prices to fight against inflation. ...

62. It may be suspected indeed that this form of reconversion of soldiers into economic activities for which they are not necessarily well qualified or prepared is not only doubtful in terms of productive efficiency, but also produces a permanent incentive for soldiers who do not have an inclination for agricultural work to continue to abuse villagers. This does not mean, however, that the Orders are not capable of making a difference to the situation of forced labour. It seems on the contrary clear from various testimonies that villagers were less and less prepared to accept the existing situation. Thus, in one specific case they were concretely considering petitioning the authorities on the basis of the Orders.

18. The ICFTU communication. In its communication dated 29 November 2001, the ICFTU states that:

In spite of their denials, alleged efforts to suppress the practice, professed good will and spirit of co operation with the ILO, the military authorities of Burma have continued to resort to forced labour on a massive scale. Senior, middle and low ranking army officers and rank and file soldiers, as well as civilian authorities, have continued to exact forced labour in all areas of activity previously identified by the ILO. In support of its claims, the ICFTU encloses nearly 30 reports and other documents, totalling over one hundred pages. They provide detailed evidence, from the same sources and of the same quality as the hundreds of reports examined over the last 5 years by the ILO and found to be credible and authentic.

Appendices to this letter provide ample and recent evidence of forced labour, including forced portering for the army, often in combat, with frequent deaths of porters from exhaustion, disease, deprivation of food, water, rest and medical care or by sheer murder. They also describe forced road clearing and building, construction and maintenance of army installations, confiscation of land and forced agricultural work on this land for the army’s benefit or profit, compulsory supplies of construction materials, food (including rice, meat, fish, vegetables and fruit) and alcohol, forced labour in army owned brick kilns and forced supply of firewood for them, random and arbitrary tax collection of every kind and many more.

The Committee notes that the documents appended to the ICFTU communication cover the period January to November 2001. While concurring with the HLT findings on the strong correlation between the presence of military camps and the practice of forced labour, they also point to the current use of forced labour on civil infrastructure projects, both before and after the HLT visit, and often include precise indications of time and place, any military battalions or companies involved and the names of the commanders.

19. Allegations of forced labour on civil infrastructure projects included in the ICFTU documentation refer to the supply and transport of road metal and wooden sleepers to the Ye-Tavoy railroad in Natkyizin, Yebyu Township, in September 2001, and the following two examples, as summarized by the ICFTU:

-            forced labour on a railroad in southern Shan State, last October (hundreds of civilians conscripted to work on a new rail line being built from the state capital Taung gyi to the township administrative centre of Namzang; 240 people from Namzang township alone, forced to clear area for the railroad, under the supervision of Captain Than Naing Oo, Infantry Battalion No. 66, assisted by personnel of the national railway company);

-            forced road repairs in Kyaikmayaw Township (Mon State), in early October, in order to improve a local road ahead of a visit by Brigadier General Myint Swe (Commander-in-Chief, Southeast Military Command) to Tarana village; villagers were forced to repair the motor road for nine days (6 14 October); Brig. Gen. Myint Swe visit (i.e. the reason which prompted the forced labour in question) took place shortly after he had met the ILO High Level Team, in Mawlamyine, on 25 and 27 September 2001 (see ILO doc. No. GB.282/4/Appendix VI, page 4); according to local villagers, forced labour in the area was interrupted during the presence of the ILO HLT in the country, and resumed afterwards.

20. Further allegations of forced labour by villagers concern infrastructure projects of a less civil character, such as the building of a road connecting villages to military bases on Kalargote island, from mid-October until the first week of November; the forced clearing of a road infested with landmines, between Mawchi (in Kayah State) and Taungoo (in Bago Division), last September; road clearance along railway and motor roads in Ye township, in October 2001; and clearance of all roads out of Lai kha town up to a distance of about 30 km, in June 2001.

21. The greatest number of indications of forced labour communicated by the ICFTU concern service to the military, such as the conscription of 250 civilian porters, including 108 women and children, some as young as eight, on 13 June 2001 on the outskirts of Murng Kerng town by a patrol of troops from LIB 514 led by a (named) captain under the orders of the (named) battalion commander. It is stated that these villagers were released on 28 June 2001 after 16 days of service without pay, during which the women porters above 15 years were raped by the soldiers, and about five to six days later the same troops ordered the village headmen in the area to provide ten to 15 civilian porters from each village. There are similarly precise allegations for the period June to October 2001 concerning the forced cutting of bamboo and making of fences and bamboo walls for barracks; repair of barracks; clearing of drainage channels in the bases and trenches and bunkers around them, and clearing of bushes; the forced digging of ditches, with the killing of a slow worker and charging his village 3,000 kyats for the repatriation of his body; serving as messengers, cutting and carrying firewood, cooking, carrying water and doing errands; growing rice on fields confiscated from the forced labourers; and the ordering, on 18 September 2001, of villagers by the (named) new commander of LIB No. 65, to supply 4,000 sheets of thatching material for a new amphetamine factory under construction 14 miles from Mong Ton on the Mong Ton Mong Hsat road (Shan State).

22. The Committee hopes that the Government will examine the indications given by the ICFTU and supply detailed information on any action taken thereupon, as well as upon the report of the HLT, to prosecute all persons found responsible of ordering forced labour and of any concomitant crimes. More fundamentally, the Committee hopes that the required specific and concrete instructions and budgetary provisions for the effective eradication of forced labour, as indicated by the Commission of Inquiry in paragraph 539(b) of its report and referred to again in paragraphs 9 and 13 above, will at last be adopted, and that the Government will supply full information on the action taken.

III.  Enforcement

23. In paragraph 539(c) of its recommendations the Commission of Inquiry urged the Government to take the necessary steps to ensure:

... that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced labour or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty.

24. In its previous observation, the Committee noted that point 4 of the directive dated 1 November 2000 from the State Peace and Development Council to All State and Divisional Peace and Development Councils (referred to in paragraph 8 above) provides for the prosecution of "responsible persons" under section 374 of the Penal Code, and that a similar clause is included in point 3 of an instruction dated 27 October 2000, addressed by the Director-General of the Police Force to all units of the police force. Moreover, under points 4 to 6 of the instruction dated 27 October 2000:

4. If any affected person files a verbal or written complaint to the police station of having been forced to contribute labour, the latter shall record the complaint in Forms A and B of the police station and send the accused for prosecution under section 374 of the Penal Code.

5. It is hereby directed that the police stations and units concerned at various levels shall be further instructed to make sure their strict compliance with the said Order as well as to supervise so that there shall be no requisition of forced labour. A copy of the Order Supplementing Order No. 1/99 issued by the ministry of Home Affairs on 27 October 2000 is enclosed herewith.

6. It is instructed to acknowledge receipt of this directive and to report back actions taken on the matter.

25. With regard to point 4 of the instruction dated 27 October 2000 the Committee expressed the hope that prosecutions under section 374 of the Penal Code would be brought by the law enforcement agencies on their own initiative, without waiting for complaints by the victims, who may not consider it expedient to denounce the "responsible persons" to the police. The Committee hoped that in commenting on indications that the imposition of forced labour has continued beyond October 2000, the Government would also report on concrete action taken under section 374 of the Penal Code.

26. None of these concerns have so far been met. In its report, the Government repeats:

... that necessary mechanisms have also been put in place to take action to the local authorities who fail to abide by the Orders under Section 374 of the Penal Code or any other existing law. And anyone wishing to make a complaint for being subjected to forced exaction of labour can do so in respective Township Court, Police Station or Township or Ward and Village Tract Peace and Development Council. Therefore, there are proper means to accommodate such complaints already in place.

No action under section 374 of the penal Code has been brought to the knowledge of the Committee.

27. In paragraphs 52 and 53 of its report, the HLT describes "the realities of enforcement" as follows:

52. The HLT was also given a document prepared by the Ministry of Home Affairs entitled "Action Taken on Cases For Not Abiding Order 1/99 and Its Supplementary Order Issued by the Ministry of Home Affairs". Thirty-eight instances where action had been taken were mentioned. A meeting was specifically organized on the HLT’s last day in the country in order to obtain further details concerning the cases referred to in this document. It appeared that all actions taken were of an administrative  nature. They ranged from a simple warning to dismissal or discharge of the person concerned. None referred to section 374 of the Penal Code as provided for in the Orders. The HLT was informed that "inquiry committees" had authority to decide on the measures that should be imposed in case of violations of the Orders. To date, these inquiry committees had deemed it more appropriate to deal with alleged breaches of the Orders from an administrative standpoint rather than by having recourse to criminal prosecution. Out of the 38 cases, 10 occurred prior to May 1999 and therefore were not covered by the Orders. All cases involved TPDC or VPDC officers. ... It was apparent to the HLT that this document was a totally inadequate response to any inquiry as to what action had been taken to give effect to the Orders; yet no other response was made, nor, it seems, could be.

53. Most members of the general population with whom the HLT met during its visit to the country stated that they would not use the complaint procedure as envisaged in the Orders (through the courts or the police). They would more likely complain to the VPDC or TPDC. Many were scared that reprisals could be taken against them. In that respect, the HLT was given several accounts of people being beaten, detained or otherwise punished for earlier complaints on this or other issues. ...

The HLT also notes, in paragraph 68 of its report:

... that the reluctance to use the procedures specifically provided for by law is due to a large extent to the lack of trust in the police and the judicial system, in the absence of a constitutional guarantee of the separation of powers and the independence of the judiciary.

28. The ICFTU in its communication dated 29 November 2001 stresses:

... that in many cases, both military and civilian authorities have blatantly brushed aside villagers’ and headmen’s objections to performing forced labour under the rights purportedly granted to them under Order 1/99 and the Supplementary Order. This extends from a village headman being punished twice when his villagers, invoking Lt. Gen. Khin Nyunt’s "Orders", refused to perform forced labour (last September in Kawkareik, Karen State), to Tadmadaw officers openly disregarding them or even threatening to shoot anyone refusing to comply, as is described below.

In August 2001, villagers from Kyar Inn Seikkyi township (Karen State) complained to local army officials against demands for forced labour. They had been publicly informed by SPDC officials from Rangoon about the "Order", and forced to buy copies of the "Green Book" at prices going from 500 to 3,000 kyats. In reply, Lt. Col. Win Myint, Battalion Commander, Infantry Battalion (IB) 232, Taung Tee Camp, said that the "order" had been issued from Rangoon and it would be effective in Rangoon. In this area, "he" was the area commander sent by Rangoon and they had to follow his instructions. If they wanted Order No. 1/99 to be applied in their area, they would have to "relocate to Rangoon and stay with Khin Nyunt" ...

The documentation transmitted by the ICFTU:

... also includes a detailed account of forced portering for an army platoon of 8 soldiers, led by one 2nd-Lt. Tin Myo Win, Infantry Battalion (IB) 266, based in Hakha (Chin State, on the India-Burma border). The army column itself was based at Sa-Baung-Tha army camp. A group of 54 villagers had to porter for the army for a period of 8 days. As they were not given any compensation for the work, various chairmen of the VPDC (village authorities), quoting General Khin Nyunt’s "Order" asked 2nd-Lt. Tin Myo Win for the corresponding wages. According to [the] report, "Lt. Tin Myo Win replied that anyone who should dare to ask for compensation next time would be shot and killed at once. They were so terrified that no one dared to ask for compensation anymore" ...

The ICFTU puts this case "in the context of the dramatic incident reported by the HLT to Lt. Gen. Khin Nyunt" and referred to in paragraphs 28 and 53 and Appendix XI of its report, as well as the alleged detention of a witness who spoke to the HLT during its visit in Arakan State, and whose very existence was subsequently denied by the authorities. The ICFTU also notes "that other reports of harassment exist, including detention, against witnesses who spoke to the HLT", and refers to two such incidents said to have occurred in Pa-an district in October 2001. The Government may wish to comment on these matters, indicating in particular how any investigations into the allegations were conducted, by the military themselves or by the judiciary, and any measures taken to protect from reprisals both witnesses having testified, and victims of forced labour seeking redress.

*  *  *

29. In short, the Committee notes that none of the three recommendations formulated by the Commission of Inquiry and accepted by the Government have so far been met. Despite longstanding promises, as well as the Government’s assured good will, the Village Act and Towns Act have not yet been amended. While Order No. 1/99, as supplemented, has been widely publicized and may for the time being have affected certain civil infrastructure projects, by itself the order has not stopped the exaction of forced labour, in particular by the military. There is no indication that the necessary specific and concrete instructions and budgetary provisions have been adopted or even prepared with a view to effectively replacing forced labour by offering decent wages and employment conditions to freely attract any workers needed. Finally, there is no indication that any person responsible for the exaction of forced labour and often concomitant crimes was sentenced or even prosecuted under section 374 of the Penal Code or any other provision, in conformity with Article 25 of the Convention.

30. People met by the HLT "indicated that there was no point in complaining to the authorities since it was the authorities themselves who were imposing forced labour" (paragraph 53 of the report). Whilst the Government permits the exploiters of forced labour to be perceived as representing the state authority, it thereby extends the validity of the Commission of Inquiry’s concluding observation:

... that the impunity with which government officials, in particular the military, treat the civilian population as an unlimited pool of unpaid forced labourers and servants at their disposal is part of a political system built on the use of force and intimidation to deny the people of Myanmar democracy and the rule of law.

[The Government is asked to supply full particulars to the Conference at its 90th Session.]