Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

The Committee notes with the deepest concern the observations made by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2021 referring to the systemic violence against workers and harsh suppression of civil liberties carried out by the military junta after it seized power on 1 February, relentlessly cracking down on the crowds of protesters calling for the return of democracy. While the reply provided on 19 November 2021 contends that the peaceful protests had evolved into riots and ultimately reached a stage of insurrection and terrorism, retaliating against members of security forces with all available weapons and forcing them to respond, the Committee cannot but deplore the allegations that ever since the junta’s seizure of power, daily demonstrations have been met with increasing brutality with hundreds killed, many more wounded and over 2,700 arrested and charged, with some already sentenced.

Civil liberties. The Committee deeply regrets to note the information provided by the ITUC that trade unionists have been specifically targeted with numerous cases of arrests and killings of trade union leaders and unionists and the wholesale violation of their civil liberties. The ITUC refers in particular to: the shooting of Chan Myae Kyaw, a truck driver at a copper mine and a member of IndustriALL’s affiliate Mining Workers’ Federation of Myanmar (MWFM), who was killed by soldiers on 27 March 2021 during a demonstration in Monywa; a military ambush of protesters on March 28 and 29 in South Dagon Industrial Zone, killing Nay Lin Zaw, a union leader in the wood processing sector and a member of Myanmar Industry Craft Service-Trade Unions Federation (MICS-TUF); and the shooting in the head of 21 year old Zaw Htwe, a garment worker and a member of Solidarity Trade Union of Myanmar (STUM).

The Committee notes the reply to the ITUC comments that any deaths due to security forces acts were in limited response to terrorist acts, the relevant police have these death cases on files in accord with the legal procedures and systematically registered the case records of all deaths as well as assisted their funeral affairs. According to the lists of Myanmar Police Force, 361 civilians were killed during the reporting period, of which only 193 were due to members of the security forces with Riot Control Agents (RCA) while clearing barricades and defending themselves from the terrorist acts. The remaining 168 were dead by other causes e.g., assassinated by others with arms, fell from buildings and disease, not relevant to the members of security forces. It is added that exaggerated and falser reports in this regard are aimed at discrediting the Government and the military. As to the specific deaths raised by the ITUC, it is indicated that no casualties were found after the protest at the copper mine where Chan Myae Kyaw is said to have been shot, there were no events of a crackdown by security guards in Dagon township where Nay Lin Zaw is said to have died, and an inquest has been filed at Shwepyithar Township Police Station concerning the death of Zaw Htwe.

The Committee is bound to recall that the mobilization of the Civil Disobedience Movement was due in the first instance to the military seizure of power and destitution of the civilian government. In these circumstances, it must refer to the examination by the Committee on Freedom of Association of the grave allegations of numerous attacks by the military authorities following the coup d’état on 1 February 2021 in Case No. 3405 (see 395th Report, June 2021, paragraphs 284–358). The Committee further observes that the ILO Governing Body had on its agenda an update on the situation in Myanmar and on additional measures to promote the restoration of workers’ rights at its 341st, 342nd and 343rd Sessions (March, June and November 2021), at which it, inter alia: expressed profound concern about developments since 1 February and called on the military authorities to respect the will of the people, respect democratic institutions and processes and restore the democratically elected Government (GB.341/INS/17(Add.1) (March)); expressed profound concern that the situation had deteriorated and that no progress had been made in this regard (GB.342/INS/5 (June)); and expressed profound concern that the military authorities have continued with the large-scale use of lethal violence and with the harassment, ongoing intimidation, arrests and detentions of trade unionists (GB.343/INS/8 (November)). Finally, the Committee takes note of the Resolution for a return to democracy and respect for fundamental rights in Myanmar adopted by the International Labour Conference at its 109th Session (2021) which calls upon Myanmar to cease all attacks, threats and intimidation by the military against workers, employers and their respective organizations, and the general population, including in relation to their peaceful participation in protest activities (ILC.109/Resolution II).

The Committee recalls that freedom of association can only be exercised in conditions in which fundamental human rights are fully respected and guaranteed, and in particular those rights relating to human life and personal safety, due process and the protection of premises and property belonging to workers’ and employers’ organizations. The killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events. While noting the cursory information provided in respect of the deaths noted above, the Committee calls for a full and independent investigation into the circumstances of the killings of Chan Myae Kyaw, Nay Lin Zaw and Zaw Htwe and requests to receive a full report of the outcome and the measures taken to prosecute and punish the guilty parties.

The ITUC further refers to the arrest on 18 February 2021 of a union leader from the MICS-TUF who has been sent to Insein Prison and the arrest on 15 April 2021 of the director of STUM, who was charged under section 505-A of the Penal Code, which means she is not eligible for bail and faces up to 3 years in prison. Also in May, forces were deployed to arrest another 22 unionists, including seven members of Myanmar Transport Federation with another 11 warrants pending against national leaders of the Confederation of Trade Unions of Myanmar (CTUM) and other trade unions. On 4 June 2021, the passports of 28 CTUM members were cancelled. Finally, the ITUC recalls a number of arrests, detentions and attacks against trade unionists exercising their right to peaceful industrial action in 2019 and 2020.

In reply it is stated that tens of thousands of prisoners were pardoned on 12 February and 17 April respectively, while pending cases for 4,320 defendants were closed on 18 October with amnesty granted to 1,316 prisoners. As for the cancellation of the passports of 28 CTUM members, it is stated that false news had been perpetrated by the leaders of the organization to discredit the State Administration Council and the military giving rise to charges against the CTUM Chairperson for violation of section 505 of the Penal Code, while he and 28 CTUM members were also charged under section 124-A. The Government cancelled their passports as they were fleeing the arrest warrants due to be issued. As regards the serious allegations of a number of arrests, detention and attacks against trade unionists for exercising their right to peaceful industrial action and participating in the civil disobedience movement for the restoration of democracy, as well as the cancellation of their passports, the Committee calls for all measures to be taken to ensure full respect for the basic civil liberties necessary for the exercise of freedom of association, including freedom of opinion and expression, freedom of assembly, freedom of movement, freedom from arbitrary arrest and detention and the right to a fair trial by an independent and impartial tribunal, so that workers’ and employers’ organizations can carry out their activities and functions without threat of intimidation or harm and in a climate of complete security.

In this regard, the Committee further notes the ITUC’s indication that some of the arrested trade unionists were charged under section 505-A of the Penal Code which sets forth a broad and vague definition of the term “treason” to include attempts “to hinder, disturb, damage the motivation, discipline, health and conduct of the military personnel and government employees and cause hatred, disobedience, or disloyalty toward the military and the government.” The Committee further notes that section 124 A of the Penal Code was amended by the military authorities in February using similarly broad wording to make it a criminal act “to sabotage or hinder the success of performance of the Defence Services and law enforcement organizations” under a penalty of up to 20 years’ imprisonment. While having been informed that the director of STUM has been released, the Committee observes that the far-reaching nature of the drafting of this section can favour the categorization as treason of any exercise of dissent in a manner so as to compromise the exercise of basic civil liberties necessary to the full exercise of trade union rights. The Committee therefore calls specifically for the immediate release of the leader of MICS-TUF and any other trade unionists still being detained or imprisoned for having exercised their trade union rights protected under the Convention, including their engagement in the civil disobedience movement. Just as the Committee on Freedom of Association, the Committee further calls for the repeal of section 505-A of the Penal Code and also calls for the amendment of section 124 A in light of its similar nature.

As regards the ITUC comments concerning the announcement of a new cyber security law which criminalizes any statement against any law with sanctions of imprisonment and heavy fines, the Committee notes the reply that the Cyber Law has not yet been promulgated but observes that elements of this draft law were introduced into the Electronic Transaction Act (ETA), adopted on 15 February 2021, which provides in section 38(c) that any person that is convicted of making fake news or false news (not defined) in a cyberspace with the aim of alarming the public, making someone lose his or her faith, disrespecting someone or dividing unity, shall be imprisoned for a minimum of one year to a maximum of three years or fined not more than 5 million in kyat or both. The Committee observes with deep concern that this provision is vaguely worded and likely to undermine freedom of expression and other basic civil liberties under the threat of heavy penalties, including imprisonment. The Committee therefore urges that section 38(c) be revised with a view to ensuring full respect for the basic civil liberties necessary for the exercise of freedom of association so that workers’ and employers’ organizations can carry out their activities and functions without threat of intimidation or harm and in a climate of complete security.

Additionally, the Committee recalls that, in its previous comments, it had taken note of the new Law on the Right to Peaceful Assembly and Peaceful Procession, adopted on 4 October 2016, and observed that the Chapter on Rules and the corresponding Chapter on Offences and Penalties could give rise to serious restrictions of the right of organizations to carry out their activities without interference. The Committee requested the Government to ensure that workers and employers are able to carry out and support their activities without threat of imprisonment, violence or other violations of their civil liberties by police or private security and to inform of any sanctions imposed on workers’ or employers’ organizations under the Law. The Committee observes in this regard that the ITUC refers to a number of incidents in 2019 and 2020 where workers and union leaders engaged in peaceful protests had been prosecuted and convicted under this Law, but who have since been released. The Committee deeply regrets that Myanmar’s report this year simply states that the Law on the Right to Peaceful Assembly and Peaceful Procession, 2016, was enacted to ensure every citizen has the right to carry out activities in line with the law, without providing any information in reply to the detailed examples of prosecution and conviction provided by the ITUC. The Committee must therefore urge that all steps be taken to ensure that workers and employers are able to carry out and support their activities without threat of imprisonment, violence or other violations of their civil liberties by police or private security and that the Law on the Right to Peaceful Assembly and Peaceful Procession not be used in any way to restrict these rights.

Labour law reform process. Despite the deeply concerning deterioration of the situation in the country and the Committee’s strong conviction that priority must be given to the restoration of democratic and civilian rule, it wishes to recall its previous comments concerning the labour law reform process in the country for further action once the democratic institutions and processes and democratically elected government are restored.

Article 2 of the Convention. As regards the membership requirements and pyramidal structure set out in the Labour Organization Law (LOL), the Committee recalls that it had encouraged the Government to pursue consultations within the framework of the National Tripartite Dialogue Forum (NTDF) so as to ensure that all workers and employers, without distinction whatsoever, are able, not only in law but also in practice, to fully exercise their rights under the Convention, bearing in mind key difficulties faced by parts of the population, such as those in remote areas.

The Committee notes from this year’s report the information that, since the law’s entry into force, 2,887 basic labour organizations, 161 township labour organizations, 25 region or state labour organizations, nine labour federations, one labour confederation and 27 basic employer organizations, one township employer organization and one employer federation have been registered under the law.

As regards the possible denial of registration, the Committee once again requests information on any denials of registration, including reasons for such decisions and procedures for review and appeal of such denials.

Article 3. The Committee further noted the restrictions for eligibility to trade union office set out in the Rules to the LOL, including the obligation to have been working in the same trade or activity for at least six months (no initial time period should be required) and the obligation for foreign workers to have met a residency requirement of five years (this period should be reduced to a reasonable level such as three years), as well as the requirement to obtain permission from the relevant labour federation under section 40(b) of the LOL in order to go on strike.

The Committee once again expresses its expectation that, as soon as conditions permit, all of the above matters will be reviewed within the framework of the legislative reform process in consultation with the social partners so as to ensure fully the rights of workers and employers under the Convention.

The Committee further notes from the report that the Settlement of Labour Disputes Law was amended in 2019 and requests the final adopted text, as well as the Settlement of Labour Disputes Rules to implement the law, to be transmitted for its consideration.

Special economic zones (SEZs). The Committee notes the information provided in relation to the settlement of labour disputes in SEZs and the setting up of Workplace Coordinating Committees (WCCs) both inside and outside of the zones. It notes further that labour disputes occurring in SEZs have been settled by the Special Economic Zone Management Committee and all disputes have been settled by agreement up to now. If no agreement is reached, such disputes shall be dealt with under the Settlement of Labour Disputes Law. The Committee expects that all necessary measures will be taken to guarantee fully the rights under the Convention to workers in SEZs, including by ensuring that the SEZ Law does not contradict the application of the LOL and the Settlement of Labour Disputes Law in the SEZs, and suggests that this matter be followed up within the framework of the NTDF as soon as conditions permit.

The allegations and issues raised in this comment relating to numerous deaths, massive detentions and arrest of trade unionists and a momentous attack on basic civil liberties have given rise to the Committee’s deepest concern. The Committee deeply regrets that despite several decisions by the ILO Governing Body in March, June and November of this year and the Committee on Freedom of Association’s recommendations and the International Labour Conference’s Resolution in June, no steps have been taken to address these grave concerns or to rectify the serious infringements on fundamental rights introduced this year in the Penal Code and the Electronic Transaction Act and the ongoing concerns with respect to the Law on the Right to Peaceful Assembly and Peaceful Procession of 2016.

In these circumstances, and given the urgency of addressing these matters affecting the fundamental rights of workers and employers, their physical integrity and freedom, and the likelihood of irreversible harm, the Committee considers that this case meets the criteria it has developed to be asked to come before the Conference.

[The Government is asked to supply full particulars to the Conference at its 110th Session and to reply in full to the present comments in 2022.]