Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

The Committee notes the Government’s report, including its reply to some of the comments previously made by the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) in a communication dated 12 July 2006.

The Committee notes the conclusions and recommendations reached by the Committee on Freedom of Association in its interim report concerning Case No. 2268 (340th Report, paragraphs 1064–1112) and in particular observes that it requested the Government to institute an independent inquiry into the alleged murder of a trade unionist, Saw Mya Than, and to release Myo Aung Thant from prison. The Committee notes that the Government’s observations on these matters refer to its previous communications.

The Committee also notes the comments of the ITUC dated 27 August 2007 on grave matters which arose in the course of 2006, in addition to issues that have already been raised by the Committee over the years, including the current situation of an obscure legislative framework; a single trade union system; military orders and decrees further limiting freedom of association; the prohibition of trade unions; “workers’ committees” organized by the authorities; the Federation of Trade Unions of Burma (FTUB) forced to work underground and accused of terrorism; and the repression of seafarers even overseas and the denial of their right to be represented by the Seafarers’ Union of Burma (SUB):

–           The arrest by the military authorities on 8 and 9 August 2006 of eight members of the family of the FTUB member and activist Thein Win at their house in the Kyun Tharyar section of Pegu city as well as ten alleged associates of Thein Win including the village head and other elders. While his mother and one of his sisters were released after one day, the others were sent to Toungoo prison and intensively interrogated under torture by military intelligence and special branch officers about the activities of Thein Win including an alleged trip he made to Pegu to organize activities around May Day. While being held at Toungoo the family members were ordered by their interrogators to sign “confessions” about Thein Win’s activities and most of them were forced to do so under torture. On 3 and 4 September 2006, the authorities released most of the family members and friends. Most were however subsequently visited and threatened by military intelligence officers who demanded that each prisoner pay 1 million kyats into an army fund. Three of Thein Win’s siblings (Tin Oo, Kyi Thein and Chaw Su Hlaing) were still being detained at the end of the year charged with violations of section 17(1) and (2) of the Unlawful Associations Act.

–           The arrest in March 2006 of five underground democracy and labour activists for a variety of offences connected to efforts to provide information to the FTUB and other organizations considered as illegal by the regime, and to organize peaceful anti-SPDC demonstrations. All five were sentenced to long prison terms and four were serving those terms in Insein prison (U Aung Thein, 76 years old, sentenced to 20 years; Khin Maung Win, sentenced to 17 years; Ma Khin Mar Soe, 17 years; Ma Thein Thein Aye, 11 years; and U Aung Moe, 78 years old, sentenced to 20 years).

–           Intimidation by the army of the 934 workers at Hae Wae Garment, located in South Okkapala Township in Rangoon, who went on strike on 2 May 2006 to demand better terms and conditions of work. The 48 workers allowed to meet with the authorities were forced to sign a written statement that indicated that there were no problems at the factory. A detachment of 12–20 police officers were regularly present in the factory after workers returned to work.

–           The arrest and sentencing to a four-year prison term with hard labour of Naw Bey Bey, an activist member of the Karen Health Workers’ Union (KHWU). She was supposedly held in Toungoo.

The Committee further recalls the grave information previously communicated by the ICFTU to which the Government has not provided any new information:

–           The arrest, torture and killing of Saw Thoo Di, a.k.a. Saw Ther Paw, a Karen Agricultural Workers’ Union (KAWU) committee member from Kya-Inn township, Karen State, by an armed column of Infantry Battalion 83 outside his village on 28 April.

–           The shelling of the Pha village with mortars and rocket propelled grenades by Light Infantry Battalion 308 which had been sent by the State Peace and Development Council (SPDC) military upon learning that, on 30 April, the FTUB and Federation of Trade Unions – Kawthoolei (FTUK) were preparing a May Day workers’ rights commemoration.

–           The discovery in early June 2005, by the SPDC of an underground network of ten FTUB organizers in the Pegu area who were providing support and education to workers and serving as a networking and information link to FTUB structures abroad. Seven men and three women were arrested. In a press conference held on 28 August, the SPDC leaders accused the organizers of having used satellite phones to convey information from inside Burma to the FTUB, which then provided information to the ILO and the international trade union movement. The arrested FTUB members were taken to the infamous Aug Tha Pay interrogation centre in Mayangone district of Rangoon where they were investigated and tortured by special branch police and the Bureau of Special Operations (military intelligence) personnel during the months of June and July. On 29 July, they were transferred to Insein prison, and their case sent to a special court that conducts its hearings inside the prison. During the secret trial, they were denied access to outside council or witnesses, and the proceedings clearly did not meet international judicial standards. They were all found guilty and were sentenced on 10 October. Wai Lin and Win Myint, as key leaders of the network, respectively received sentences of 25 years and 18 years; the other five men and two of the women (Hla Myint Than, Major Win Myint, Ye Myint, Thein Lwin Oo, Aung Myint Thein, Aye Chan, Kin Kyi), each received seven-year jail terms, and bank clerk Ma Aye Thin Khine was sentenced to three years of imprisonment. In its communication of 27 August 2007, the ITUC adds that, at the end of 2006, all these FTUB members were still being detained in Insein prison. There were significant concerns about the health of retired army Major Myint Lwin, aged 77, who had been sentenced to seven years.

–           Thet Naing, another underground FTUB leader, was released from Myitkyina prison in November 2004 after serving a seven-year sentence following his rearrest for his role in leading a workers’ protest in the Yam Ze Kyang garment factory. He continues to be affected by nerve damage suffered from the torture he was subjected to during his interrogation and the mistreatment he received while in jail. He has now left the country and joined the FTUB abroad.

The Committee takes note of the information provided by the Government with regard to some of the other allegations made by the ICFTU in 2006:

–           The police arrest on 17 April 2005 of four workers (Hlae Hlae Khaing, Zin Min Khing, Moe Thi and Mar Mar) following a strike at a garment factory in Hlaingthayar industrial zone, and their imprisonment in Rangoon for allegedly having broken the law through their actions connected with the factory (released on 2 May after mobilization of the other workers in the factory which was suppressed by the army). The Government indicates that the mobilization was due to claims that the annual bonus be paid on a monthly basis and was resolved through negotiations and conciliation.

–           The death on 3 November 2005, of FTUB organizer Aung Myint (see above) under mysterious circumstances in his cell at Insein prison. According to the ICFTU, the authorities told the family that he died of dysentery, but refused to turn over the body to his relatives for a funeral, making it impossible to ascertain whether he died from abusive treatment, disease or other cause. Police officials cremated the body themselves. The Government indicates that he was suffering from tuberculosis and had received treatment in the prison hospital as well as the Insein Public Hospital and then, at the patient’s request, back to the prison hospital where he died on 6 November 2005. Because his relatives had difficulties to arrange for a funeral, the authorities, in consultation with the relatives, cremated the body.

–           The arrest of Myo Aung Thant, a member of the All Burma Petro-Chemical Corporation Union in 1997, and his being charged at the time with high treason for maintaining contacts with the FTUB. According to the ICFTU, now the SPDC, has explained that he was jailed for ten years for high treason under section 122(1) of the Penal Code, plus seven years for violations of the Emergency Provisions Act, plus three years for violating the Unlawful Associations Act. Myo Aung Thant is detained in a remote part of the country at Myitkyina prison in Kachin State, and was, according to his family, in the course of 2005 held in solitary confinement in a small, windowless cell. The Government indicates that the cell is 10 by 10 feet, the main door is 7 by 2.5 feet and the bed is 6 by 4 feet. He received a medical check-up and it was found that he was suffering from the disease of piles. He was sent to the Myitkyina General Hospital for operation. His relatives (mother, son, sister and niece) were able to see him seven times.

The Committee regrets the paucity of the information provided by the Government in reply to the large number of extremely grave allegations most of which have remained without reply. The Committee urges the Government to provide detailed observations on all the above allegations, in its next report.

The Committee once again most strongly deplores the recent and serious alleged acts of arrest, detention, torture and sentencing to many years of imprisonment of trade unionists for the exercise of their trade union activities, including the mere sending of information to the FTUB. The Committee recalls once again that respect for civil liberties is essential for the exercise of freedom of association and that workers and employers should be able to exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats and that a climate of violence, in which murders and disappearances of trade union leaders go unpunished, constitutes an extremely serious obstacle to the exercise of trade union rights and that such acts require severe measures to be taken by the authorities. The authorities should not seize on legitimate trade union activities as a pretext for arbitrary arrest or detention. Furthermore, as regards more specifically, torture, cruelty and ill-treatment, the Committee points out that trade unionists, like all other individuals, should enjoy the safeguards provided by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and governments should give the necessary instructions to ensure that no detainee suffers such treatment (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 29–30). The Committee therefore urges, once again, the Government to provide information on measures adopted and instructions issued without delay so as to ensure respect for the fundamental civil liberties of trade union members and officers and to take all necessary measures to release all those who have been imprisoned for the exercise of trade union activities immediately and to ensure that no worker is sanctioned for the exercise of such activities, in particular for having contacts with workers’ organizations of their own choosing. The Committee firmly hopes that the Government will soon be in a position to indicate progress in this respect.

Concerning the legislative framework (Articles 2, 3, 5 and 6 of the Convention), the Committee recalls that it had noted in its previous observation a total lack of progress towards establishing a legislative framework under which free and independent workers’ organizations could be established. In particular, the Committee had regretted the long delay in the adoption of the Constitution, and the lack of participation in this process of the social partners and civil society as a whole, which would be a necessary foundation for the establishment of a legislative framework on the particularly serious and urgent issues raised in relation to the application of the Convention for nearly 20 years. Furthermore, the Committee recalls that, for several years, it has indicated that 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. More specifically: (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 notes the Government’s indications that: (i) the National Convention delegates successfully completed the drawing up of the fundamental principles and detailed basic principles for the drawing up of the Constitution; (ii) work has started at the basic level, especially in the Yangon Division, under the supervision of the Supervisory Committee of the Industrial Zone, towards the creation of the new trade union and that 11 basic workers’ organizations have been formed at the industrial zones in Yangon Division and more will be formed in the remaining industrial zones of Myanmar; and (iii) workers can bargain with their employers on their working conditions under the existing labour laws, either individually or collectively; such bargaining took place in 80 factories and workplaces in 2006 and 140 factories and workplaces up to September 2007; all these could be settled by the representatives of the Government, employers and workers through conciliation and negotiation.

While noting the Government’s indications, the Committee must, however, recall once again the long delay in the adoption of the Constitution and the fact that, in the meantime, no progress has been made on the particularly serious and urgent issues it has been raising for nearly 20 years now. It must also express serious doubts as to whether the organizations and negotiations referred to by the Government actually reflect the free choice and interests of workers in a situation as described above, void of any legislative protection for the exercise of meaningful freedom of association.

The Committee once again urges the Government to furnish without delay a detailed report on the concrete measures taken to enact legislation guaranteeing to all workers and employers the right to establish and join organizations of their own choosing, as well as the rights of these organizations to exercise their activities and formulate their programmes and to affiliate with federations, confederations and international organizations of their own choosing without interference from the public authorities. It further urges the Government in the strongest terms to immediately repeal Orders Nos 2/88 and 6/88, as well as the Unlawful Association Act, so that they cannot be applied in a manner that would infringe upon the rights of workers’ and employers’ organizations. It requests the Government to communicate any steps taken towards the adoption of the Constitution and provide the text of the fundamental principles for the drawing up of the Constitution as well as any further relevant draft laws, orders or instructions made to guarantee freedom of association so that it may examine their conformity with the provisions of the Convention. Finally, the Committee requests the Government to indicate the manner in which the elements of civil society were involved in the adoption of the fundamental principles.