Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Myanmar (Ratification: 1955)

The Committee takes note of the information contained in the Government’s report, the oral information provided by the Government representative to the Conference Committee in 2004, as well as the discussion which took place therein and the resulting special paragraph in the Conference Committee’s report for continued failure to implement the Convention. The Committee also notes the observations dated 19 July 2004, received from the International Confederation of Free Trade Unions (ICFTU). Finally, the Committee notes the report of the Committee on Freedom of Association on Case No. 2268 (see 333rd Report, paragraphs 642-770).

In its previous comments, the Committee had urged the Government to take all necessary measures in the very near future to ensure that workers and employers can fully exercise their rights guaranteed by the Convention, in a climate of full security and in the absence of threats or fear.

The Committee notes the indication in the Government’s latest report that the Trade Union Act is still in force and that no restriction whatsoever has been imposed on workers’ freedom of association. The Government’s report also indicates that there are several professional arts and crafts associations and other associations, including workers’ welfare associations that are functioning well in Myanmar. On the other hand, the Committee notes that the Government’s report also indicates that since 1988, when the Constitution was suspended, there have been no trade unions in Myanmar which would meet the requirements of the Convention and that, until such time as a strong Constitution accepted by the Myanmar people is drawn up, first-level trade unions and appropriate mechanisms cannot be established. In this respect, the Committee notes that the Government representative indicated to the Conference Committee that, on 20 May 2004, the National Convention held deliberations on basic principles for the social sector, including the rights of workers, and that these principles would provide the framework under which detailed provisions would be developed in the process of drawing up the new Constitution. The Committee finally notes that the Government considers that the comments made by the ICFTU are similar to those previously answered by the Government and therefore they do not call for any reply.

The Committee must, once again, point out that it has been commenting upon the Government’s failure to apply this Convention, both in law and practice, essentially since its ratification 50 years ago. It notes that the Government’s report does not contain any of the information requested by the Conference Committee at its last session, in particular as concerns the communication of all relevant draft laws as well as a detailed report on the concrete measures adopted to ensure improved conformity with the Convention, including a response to the comments presented by the ICFTU. The Committee must note with deep regret that the information provided continues to demonstrate a total lack of progress towards establishing a legislative framework under which free and independent workers’ organizations can be established.

With respect to the reference made to encouraging workers’ welfare associations to be involved in industrial relations, the Committee reiterates that it has always considered that these associations have none of the attributes characteristic of free and independent workers’ organizations that are the objective of the Convention. Like the Committee on Freedom of Association, the Committee considers that such associations fail to present the necessary guarantees of independence in their composition and in their functioning and therefore cannot act as a substitute for freely chosen organizations of workers.

The Committee recalls that, in addition to the concerns arising from the total absence of legislative framework guaranteeing the right to organize, there exist some pieces of legislation containing important restrictions to freedom of association or provisions which, although not directly aimed at freedom of association, can be applied in a manner that seriously impairs the exercise of the right to organize. The Committee notes in this respect that: (1) Order No. 6/88 of 30 September 1988 provides that the "organizations shall apply for permission to form to the Ministry of Home and Religious Affairs" (section 3(a)), and states that any person found guilty of being a member of, or aiding and abetting or using the paraphernalia of organizations that are not permitted shall be punished with imprisonment for a term which may extend to three years (section 7); (2) Order No. 2/88 prohibits the gathering, walking or marching in procession by a group of five or more people regardless of whether the act is with the intention of creating a disturbance or of committing a crime; and (3) the Unlawful Association Act of 1908, provides that whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association or in any way assists the operations of any such association, shall be punished with imprisonment for a term which shall not be less than two years and more than three years and shall also be liable to a fine (section 17.1). The Committee urges the Government to take all the necessary measures so as to ensure that Orders Nos. 6/88 and 2/88 and the Unlawful Association Act of 1908, cannot apply to the exercise of the right to organize protected by the Convention and to keep it informed in this respect.

The Committee also notes from the comments of the ICFTU that three Independent Federation of Trade Unions - Burma (FTUB) organizers, Nai Min Kyi, Aye Myint and Nai Yetka, were arrested by the "Junta" on 16 July 2003 and sentenced to death under the high treason Act by the Rangoon District Court on 28 November 2003. The ICFTU states that the evidence presented in the trial related to contacts that these three persons had with the FTUB, possession of a Burmese-language version of the ILO’s 1998 Commission of Inquiry report on forced labour in Myanmar, and possession of a business card of the Acting ILO Liaison Officer in Yangon. In this respect, the Committee notes that the Government representative has indicated to the Conference Committee that the first appeal to the Supreme Court lodged by those three individuals had a positive outcome as their sentences were commuted to much lighter ones. The Committee also notes that a second judgement made by the Supreme Court on 14 October 2004 has commuted the penalty for Nai Min Kyi and Aye Myint to two years’ sentence of imprisonment with labour. It further notes from the second judgement that the Supreme Court has clearly stated that "as the Union of Myanmar is a member of the United Nations Organization and the International Labour Organization, it is carrying out communication and cooperation with such organizations. Any person may communicate and cooperate with these organizations. Communication and cooperation with the ILO does not amount to an offence under the existing laws of Myanmar".

The Committee recalls that while being engaged in trade union activities does not confer immunity from sanctions under ordinary criminal law, the authorities should not use legitimate trade union activities as a pretext for arbitrary arrest or detention. Moreover, the Committee also takes the view that detention, and in particular detention with labour, when applied to people involved in trade union activities, constitutes a blatant violation of the principles of freedom of association. Noting that the judgements of the Supreme Court make references to contacts with illegal organizations abroad, which are ambiguous, the Committee trusts that the Government will take the necessary measures to ensure that no individual shall be sanctioned for contacts with a trade union or workers’ association, and urges the Government to take all necessary measures so that workers and employers can exercise the rights guaranteed by the Convention in a climate of full security and in the absence of threats or fear.

The Committee asks the Government to provide, with its next report, a detailed reply to the serious matters raised by the ICFTU and urges the Government, once again, to take all necessary measures in the very near future to ensure that workers and employers can fully exercise their rights guaranteed by the Convention and in particular: that they may form and join organizations of their own choosing without previous authorization, for the furtherance and defence of their interests; that these organizations may organize their activities and formulate their programmes freely; that first-level organizations may form federations and confederations and that these in turn may affiliate with international organizations of workers and employers without impediment (Articles 2, 3, 5 and 6 of the Convention).

[The Government is asked to reply in detail to the present comments in 2005.]