Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Follow-up to the recommendations made by the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

Historical background

In its earlier comments, the Committee has discussed in detail the history of this extremely serious case, which has involved the Government’s gross, long-standing and persistent non-observance of the Convention, as well as the failure by the Government to implement the recommendations of the Commission of Inquiry, appointed by the Governing Body in March 1997 under article 26 of the Constitution.

The Committee recalls that the Commission of Inquiry concluded that the obligation under the Convention to suppress the use of forced or compulsory labour was violated in national law and in practice in a widespread and systematic manner. In its recommendations, the Commission urged the Government to take the necessary steps to ensure:

• -that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention;
• -that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and
• -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, which required thorough investigation, prosecution and adequate punishment of those found guilty.

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, to be accomplished through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. The Committee of Experts has identified four areas in which “concrete action” should be taken by the Government to fulfil the recommendations of the Commission of Inquiry. In particular, the Committee indicated the following measures:

• -issuing specific and concrete instructions to the civilian and military authorities;
• -ensuring that the prohibition of forced labour is given wide publicity;
• -providing for the budgeting of adequate means for the replacement of forced or unpaid labour; and
• -ensuring the enforcement of the prohibition of forced labour.

Developments since the Committee’s previous observation

There have been a number of discussions and conclusions by ILO bodies, as well as further documentation received by the ILO, which has been considered by the Committee. In particular, the Committee notes the following information:

• -The report of the ILO Liaison Officer submitted to the Conference Committee on the Application of Standards during the 100th Session of the International Labour Conference in June 2011, as well as the discussions and conclusions of that Committee (ILC, 100th Session, Provisional Record No. 18, Part Three (A) and Doc. D.5(C)).
• -The documents submitted to the Governing Body at its 310th and 312th Sessions (March and November 2011), as well as the discussions and conclusions of the Governing Body during those sessions.
• -The communication made by the International Trade Union Confederation (ITUC) received in August 2011, with appendices.
• -The communication made by the Federation of Trade Unions Kawthoolei (FTUK) received in October 2011, with appendices.
• -The reports of the Government of Myanmar received on 9 December 2010, 16 February, 4 April, 2 and 27 June, 31 August, 27 September, 14 October and 18 November of 2011.

The Supplementary Understanding of 26 February 2007 – extension of the complaints mechanism

In its earlier comments, the Committee discussed the significance of the Supplementary Understanding (SU) of 26 February 2007 between the Government and the ILO, which supplemented the earlier Understanding of 19 March 2002 concerning the appointment of an ILO Liaison Officer in Myanmar. The Committee noted, in particular, that the SU set out a complaints mechanism, which had as its 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 and in accordance with the Convention”. The Committee notes that the Supplementary Understanding was extended for the fourth time, on 23 February 2011, for a further 12-month period from 26 February 2011 until 25 February 2012 (ILC, 100th Session, Provisional Record No. 18, Part Three, Doc. D.5.F). The Committee further discusses the information on the functioning of the SU below, in the context of its comments on the other documentation, discussions and conclusions regarding this case.

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

The Committee on the Application of Standards once again discussed this case in a special sitting during the 100th Session of the Conference in June 2011. The Conference Committee took note of certain steps taken by the Government, such as: the further extension of the SU for another year; certain awareness raising activities, including in ethnic minority regions; allocation of funds for the purpose of alleviating the chances of unpaid labour on the part of the Government; and certain improvements in dealing with under-age recruitment by the military, including release of children and disciplinary action taken against military personnel, as well as dismissal of some officers and the imposition of penal sentences in certain cases. However, the Conference Committee regretted to note that there had been no substantive progress achieved towards complying with the recommendations of the Commission of Inquiry and strongly urged the Government to fully implement, without delay, these recommendations, as well as the comments and observations of the Committee of Experts, and in particular, to submit the draft proposals for amendment of the relevant legislative texts to the ILO for comment and advice aimed at ensuring their full conformity with the Convention, and ensure their early adoption into law and application in practice; to take all necessary measures to prevent, suppress and punish the full range of forced labour practices, including the recruitment of children into the armed forces, forced conscription into fire brigade and militia reservist units, portering, construction, maintenance and servicing of military camps, agricultural work and human trafficking for forced labour, that are still persistent and widespread; to strictly ensure that perpetrators of forced labour, whether civil or military, are prosecuted under the Penal Code and that sufficiently dissuasive sanctions are applied; to release immediately complainants and other persons associated with the use of the complaints mechanism who are currently detained, etc. The Conference Committee also called for the strengthening of the capacity available to the ILO Liaison Officer to assist the Government in addressing all of the recommendations of the Commission of Inquiry, and to ensure the effectiveness of the operation of the complaints mechanism.

Discussions in the Governing Body

The Governing Body continued its discussions of this case during its 310th and 312th Sessions in March and November 2011 (GB.310/5, GB.312/INS/6). The Committee notes that, following the discussion in November 2011, the Governing Body welcomed the positive developments in Myanmar since March 2011 but remained concerned that serious problems in the use of forced labour persisted. It called for the continuation of strengthened resolute and proactive action for the full implementation of the recommendations of the 1998 Commission of Inquiry. The Governing Body noted that legislation prohibiting the use of forced labour in all its forms and repealing both the Village Act and the Towns Act of 1907 is before Parliament; it urged the early adoption and coming into force of that legislation. The Governing Body urged that the practice of the imposition of forced labour on prisoners, particularly as porters in conflict areas, cease immediately and again invited the Government to avail itself of the technical assistance of the ILO in the review of the Jail Manual. The Governing Body welcomed the commencement of direct discussion with the Tatmadaw (armed forces) and looked forward to further substantive policy and behavioural change for the elimination of forced labour and ending impunity. It also welcomed the commencement of direct discussion with the Ministries of Finance and Planning and looked forward to confirmation that planning and financial management processes sufficiently provide for the payment of wages in government operational and project activities. While welcoming the release of a number of labour activists, the Governing Body strongly urged the early release of other labour activists remaining in detention. The Governing Body stressed again the critical importance of a comprehensive proactive approach encompassing not only the continuation of awareness-raising activities and the management of the complaints mechanism but also the effective prosecution of forced labour perpetrators, military and civilian, under the Penal Code. While welcoming the expanded awareness-raising activities being undertaken, including the production and distribution of the information brochure in Shan language, the Governing Body encouraged the continuation of this partnership activity and its expansion into other languages. Whilst recalling all of its previous conclusions and recommendations, the Governing Body encouraged the ILO and the Government in their continuing positive collaboration within the framework of the Understanding and its Supplementary Understanding, which should be further extended in February 2012. Finally, in the light of the above, the Governing Body considered it essential to strengthen the capacity of the Liaison Office and reiterated its repeated calls on the Government to issue without delay the visas necessary to that effect.

Communication received from workers’ organizations

The Committee notes the comments made by the ITUC in its communication received in August 2011. In these comments, the ITUC refers to several recent reports which contain detailed allegations about the continued use of forced labour, largely for portering, but also for road construction, collection and provision of bamboo and leaves to military camps, etc., which have occurred in the Karen, Shan and Arakan States. Appended to this communication was a report which contained allegations about the forced labour practices by civil and military authorities in North Arakan State/North Rakhine State over the nine months period which followed the national elections in November 2010. The report noted the observers’ estimate that 35–40 per cent of forced labourers were children, some as young as ten years old. The report attributed the increase in forced labour to construction and repair of the border fence between Myanmar and Bangladesh, but noted that forced labour was also used for large scale road construction projects, construction of bridges, portering, military camp maintenance, patrol duties, collection of logs and bamboo poles and plantation work. The Committee also notes the comments made by the FTUK in its communication received in October 2011, which contained a report including translated copies of 207 Order documents issued by military and civilian officials to village heads in eastern Myanmar between March 2008 and July 2011. The tasks and services demanded according to these documents involved, inter alia, portering for the military; bridge construction and repair; production and delivery of thatch, bamboo and other materials; attendance at meetings; provision of money and food; forced recruitment into armed ceasefire groups; provision of information on individuals, households and non-state armed groups; etc. The report states that, in almost all cases, demands were uncompensated and backed by implicit or explicit threats of violence or other punishments for non-compliance. Copies of the above communications by the ITUC and the FTUK with annexes were transmitted to the Government, in September and October 2011 respectively, for its comments.

The Government’s reports

The Committee notes the Government’s reports referred to above, which include replies to the Committee’s previous observation. It notes, in particular, the Government’s indications concerning its continued cooperation with the various functions of the ILO Liaison Officer, including monitoring and investigating the forced labour situation, discussion on the follow-up to the 100th Session of the International Labour Conference and the operation of the SU complaints mechanism. As regards the amendment of the legislation, the Government indicates that draft legislation prohibiting the use of forced labour in all its forms and repealing both the Village Act and the Towns Act of 1907 has been submitted to Parliament. However, no action has been taken or contemplated to amend section 359 of the Constitution. The Committee notes the Government’s ongoing efforts in the field of the awareness-raising and training activities on forced labour, including the joint ILO–Ministry of Labour (MOL) Awareness Raising Workshop held in Chin State in May 2011 and the distribution of booklets on the SU and informative simply worded brochures on forced labour. The Committee also notes the Government’s indications concerning measures taken to prevent recruitment of under-aged children and to release newly recruited under-aged soldiers, disciplinary action taken against military personnel, as well as dismissal of some officers and the imposition of penal sentences in certain cases. However, the Committee notes that the Government has not yet supplied its comments on the numerous specific allegations contained in the communications from the ITUC of August 2011 and the FTUK of October 2011 referred to above, as well as in the previous communication by the ITUC received in August 2010. The Committee urges the Government to respond in detail in its next report to the numerous specific allegations of continued imposition of forced or compulsory labour by military and civil authorities, which are documented in the above communications from the ITUC and FTUK, making particular reference to the “Order documents”, which provide evidence of the systematic imposition of forced labour throughout the country.

Assessment of the situation

Assessment of the information available on the situation of forced labour in Myanmar in 2011 and in relation to the implementation of the recommendations of the Commission of Inquiry and compliance with the Convention by the Government will be discussed in three parts, dealing with: (i) amendment of legislation; (ii) measures to stop the exaction of forced or compulsory labour in practice; and (iii) enforcement of penalties prescribed under the Penal Code and other relevant provisions of law.

(i) Amendment of legislation

The Committee notes from the discussions in the Governing Body in November 2011, as well as from the Government’s reports referred to above, that draft legislation prohibiting the use of forced labour in all its forms and repealing both the Village Act and the Towns Act of 1907 has been submitted to Parliament. While noting these positive developments, the Committee trusts that legislation prohibiting the use of forced labour in all its forms and repealing the Village Act and the Towns Act of 1907 will be adopted without delay in order to ensure compliance with the Convention, and that the Government will communicate to the ILO a copy of the new legislation, as soon as it is adopted.

In its earlier comments, the Committee referred to section 359 of the Constitution (Chapter VIII – Citizenship, Fundamental Rights and Duties of Citizens), which excepts from a prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public”. The Committee observed that the exception encompasses permissible forms of forced labour that exceed the scope of the specifically defined exceptions in Article 2(2) of the Convention and could be interpreted in such a way as to allow a generalized exaction of forced labour from the population. The Committee notes with regret the Government’s repeated statement in its reports that it is impossible to amend the 2008 Constitution, since it has been approved by 92.48 per cent of citizens’ votes. The Committee expresses the firm hope that, following the legislative amendment referred to above, the necessary measures will be taken with a view to amending section 359 of Chapter VIII of the Constitution, in order to bring it into conformity with the Convention.

(ii) Measures to stop the exaction of forced or compulsory labour in practice

Information available on current practice.

The Committee notes that the communications received from the ITUC and the FTUK referred to above contain well-documented allegations that forced and compulsory labour continued to be exacted from local villagers in 2010–11 by military and civil authorities in some of the country’s States. The information in the appendices refers to specific dates, locations and circumstances of the occurrences, as well as to specific civil bodies, military units and individual officials responsible for them. According to these reports, forced labour has been exacted both by military and civil authorities; it has taken a wide variety of forms and involved a variety of tasks.

The Committee notes from the report of the ILO Liaison Officer to the Conference Committee in June 2011 (Doc. D.5.C) that, notwithstanding the awareness raising and training activities, complaints alleging the use of forced labour by both military and civilian authorities continue to be received (paragraphs12–14). A considerable number of forced labour complaints have been lodged by farmers in Magway Region; they refer to the actions of the military in support of their commercial projects and self-sufficiency policy (paragraph 19). The ILO Liaison Officer also states that the generally positive responses from the Adjutant-General’s Office in respect of under-age military recruitment and associated complaints is in contrast to the continuing difficulty in reaching satisfactory conclusions regarding complaints that allege the use of forced labour by the military. The ILO Liaison Officer further states that “non-verifiable evidence continues to suggest that the use of forced labour by the civilian authorities has been reduced, at least in some parts of the country” and suggests to verify this trend in a proposed labour force survey (paragraph 15). An increasing number of complaints under the SU mechanism continue to be received, which may be also seen as a sign of greater awareness among the public of their right under the law to complain and their increased confidence in seeking redress through the use of the complaints mechanism (paragraph 10). However, according to the Governing Body document submitted to its 312th Session in November 2011, “Whilst recognizing the progress made in respect of civilian authorities, the Governing Body and the Conference called on the Government to provide for meaningful consultations between the ILO and the Ministry of Defence and senior army representatives to address both the policy and behavioural practices driving the use of forced labour by the military, including, in particular: the recruitment of children into the armed forces; forced conscription into the armed forces, fire brigade and militia reservist units; portering; construction, maintenance and servicing of military camps; and forced agricultural work” (GB.312/INS/6, paragraph 28). In response to this call, the Working Group for the Elimination of Forced Labour facilitated the first direct meeting between the ILO and the Tatmadaw (armed forces) Committee on ILO Affairs, at which all the issues and practices indicated above were discussed, and further meetings to clarify these issues were scheduled (GB.312/INS/6, paragraph 29). Regarding the under-age recruitment, the Committee notes that, since March 2011, 33 victims of under-age recruitment have been released or discharged from the military in response to complaints launched under the SU; the total number of under-age recruits released or discharged under the SU since February 2007 was 208 (GB.312/INS/6, paragraph 31).

Issuing specific and concrete instructions to the civilian and military authorities

In its earlier comments, the Committee emphasized that specific, effectively conveyed instructions to civil and military authorities, and to the population at large, were required to identify each and every field of forced labour and to explain concretely for each field the means and manner by which the tasks or services involved are to be carried out without recourse to forced labour. The Committee previously noted the Government’s statement in its June 2009 report that “the various levels of administrative authority are well aware of the orders and instructions related to forced labour prohibition issued by the higher levels”. However, the Committee notes once again that no new information has been provided by the Government in its subsequent reports on this important issue. Given the continued dearth of information regarding this issue, the Committee remains unable to ascertain that clear instructions have been effectively conveyed to all civil authorities and military units, and that bona fide effect has been given to such instructions. It therefore reiterates the need for concrete instructions to be issued to all levels of the military and to the whole population, which identify all fields and practices of forced labour and provide concrete guidance as to the means and manner by which tasks or services in each field are to be carried out, and for steps taken to ensure that such instructions are fully publicized and effectively supervised. Considering that measures to issue instructions to civilian and military authorities on the prohibitions of forced and compulsory labour are vital and need to be intensified, the Committee reiterates the firm hope that the Government will provide, in its next report, information on the measures taken in this regard, including translated copies of the instructions which have been issued reconfirming the prohibition of forced labour.

Ensuring that the prohibition of forced labour is given wide publicity

In relation to ensuring that the prohibition of forced labour is given wide publicity, and noting, in particular, that the Governing Body and the Conference called for the continuing expansion of awareness-raising activities at community level, the Committee notes from the report of the ILO Liaison Officer referred to above, from the documents submitted to the Governing Body and to the Conference Committee, as well as from the Government’s reports, that a number of awareness-raising activities concerning the forced labour situation, the legal prohibitions of forced labour and existing avenues of recourse for victims were carried out in 2011. These included, inter alia, a joint ILO–MOL awareness-raising seminar in Chin State for local authority personnel (military, police, judges and civilian authorities); two presentations on the law and practice concerning forced labour to senior police, immigration and Ministry of Home Affairs personnel, and to the Myanmar Women’s Affairs Federation; and six training seminars/workshops (one of them on a regular two-months basis) for journalists, various NGO’s and community-based organizations. The Government’s translation of the information brochure in the Shan language (the most widely used of the national languages after the Myanmar language) was in the process of printing and distribution, and the brochure in the official Myanmar language was widely distributed in every State and region by the Government and the ILO with support from NGO’s and community-based organizations (GB.312/INS/6, paragraphs 22–24). Considering that the awareness-raising activities are of crucial importance in helping to ensure that the prohibition of forced labour is widely known and applied in practice, the Committee expresses the firm hope that such activities will continue and be expanded, both at State and community level.

Noting also from the report of the ILO Liaison Officer to the Conference Committee in June 2011 referred to above that complaints alleging the use of forced labour by both military and civilian authorities continue to be received, the Committee reiterates its view that the complaints mechanism under the SU provides in itself an opportunity for the authorities to demonstrate that continued recourse to forced labour practices is illegal and would be punished as a penal offence, as required by the Convention. The Committee therefore reiterates its hope that the Government will continue to use the SU complaints mechanism as an important modality of awareness raising, and that it will provide, in its next report, the information on the impact the awareness-raising activities are having on the enforcement of criminal penalties against perpetrators of forced labour and on the imposition in actual practice of forced or compulsory labour, particularly by the military.

Making adequate budgetary provisions for the replacement of forced or unpaid labour

In its earlier comments, the Committee observed that budgeting of adequate means for the replacement of forced labour, which tends also to be unpaid, is necessary if recourse to the practice is to end. The Committee recalled in this regard that, in its recommendations, the Commission of Inquiry stated that “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.” Recalling also that both the Governing Body and the Conference have consistently called for the Government to facilitate ILO meetings with the Ministry of Finance and the Ministry of Planning towards ensuring that adequate budgetary allocations are made so that workers may be freely contracted and adequately remunerated, the Committee notes from the Governing Body document submitted to its November 2011 session (GB.312/INS/6) that the first meetings of the ILO with the above Ministries took place in 2011, during which the budget formulation procedure and the basic procedures for pre-allocation planning were explained, and it was clarified that, under the new administration, financial policy was in the process of being reformed in accordance with the new Constitution. It was also recognized that the potential for forced labour arose particularly at municipal level when the demand for infrastructure or repairs and maintenance outstripped budgeted allocations, and it was expected that such matters would be addressed under new governance and accountability structures (paragraphs 35–40). The Committee notes that the Government’s reports referred to above contain no new information on this issue, and that the Government merely repeats, in its report received on 2 June 2011, its previous indication that the budget allotments including the expense of labour costs for all ministries have been allocated to implement their projects. The Committee therefore hopes that the Government will provide, in its next report, detailed and precise information on the measures taken to budget adequate means for the replacement of forced or unpaid labour, as well as the information on the impact of the financial policy reform on these issues.

(iii) Ensuring the enforcement of the prohibition of forced labour

In its earlier comments, the Committee referred to section 374 of the Penal Code, which provides for the punishment, by a term of imprisonment of up to one year, of anyone who unlawfully compels any person to labour against his or her will. It recalls that, following the recommendations of the Commission of Inquiry, both the Governing Body and the Conference have sought to ensure that perpetrators of forced labour, whether civil or military, are prosecuted under the Penal Code and that sufficiently dissuasive sanctions are applied. The Committee notes from the Governing Body document submitted to its 312th Session in November 2011 (GB.312/INS/6) that, in respect of military personnel deemed responsible for the recruitment of minors, action under the military disciplinary code is now routinely taken, punishments ranging from a formal reprimand to a monetary penalty, the loss of service entitlements for pension and promotion, discharge and imprisonment (paragraph 42). The Government indicates in its reports received on 2 June and 31 August 2011 that, in the under-age recruitment cases, action was taken against 20 military officials and 110 other ranks for breaching the rules, five officials and five other ranks were dismissed and imprisoned. However, in respect of cases concerning forced labour exacted by the military, the ILO has received no information concerning the prosecution of any perpetrator under the abovementioned provision of the Penal Code. As regards the exaction of forced labour by civilian authorities, the Committee previously expressed concern that the only prosecution of perpetrators under the Penal Code in response to complaints submitted had been reported in respect of a case in 2007 already noted by the Committee in its earlier comments. The ILO has been advised that another prosecution has been initiated under the Penal Code in respect of a civilian accused of being a party to the exaction of forced labour, though no information has yet been received as to the outcome of this prosecution (GB.312/INS/6, paragraph 42).

The Committee regrets to note once again that no new information has been provided by the Government in its 2011 reports about any prosecutions against perpetrators of forced labour being pursued under section 374 of the Penal Code. The Committee therefore urges the Government to take measures to ensure that penalties imposed by law for the illegal exaction of forced or compulsory labour are adequate and strictly enforced, as required by Article 25 of the Convention, and expresses the firm hope that appropriate measures will be taken in the near future in order to ensure that perpetrators of the exaction of forced labour are prosecuted and punished with penal sanctions under section 374 of the Penal Code. The Committee asks the Government to provide, in its next report, information on the progress made in this regard.

Concluding remarks

The Committee fully endorses the conclusions concerning Myanmar made by the Conference Committee and the Governing Body, as well as the general evaluation of the forced labour situation by the ILO Liaison Officer. The Committee welcomes the positive developments, such as submission to Parliament of the draft legislation repealing the Towns Act and the Village Act of 1907; the expanded awareness-raising activities; the improvements in dealing with under-age recruitment by the military, including release of children and imposition of disciplinary and penal sanctions on military personnel; cooperation in the functioning of the SU complaints mechanism and its further extension for another year. However, the Committee observes that, in spite of the efforts made towards the implementation of the recommendations of the Commission of Inquiry, the Government has not yet fully implemented these recommendations. Besides the steps taken towards the amendment of the legislation, the Government still has to ensure that, in actual practice, forced labour is no longer imposed by the authorities, in particular by the military; and it still has to ensure that penalties for the exaction of forced labour under the Penal Code are strictly enforced against civil and military authorities. While noting the positive developments referred to above, the Committee urges the Government to redouble its efforts towards the full implementation of the recommendations of the Commission of Inquiry, by implementing the concrete practical requests addressed by the Committee to the Government. It expresses the firm hope that all the necessary measures will be taken without delay to achieve full compliance with the Convention, both in law and in practice, so as to ensure that all use of forced or compulsory labour in Myanmar is completely eliminated.