Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 29) sur le travail forcé, 1930 - 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)

For a number of years, the Committee has been examining this case and it is pleased to note the various positive developments that have occurred in Myanmar over the past year, including with regard to the application of this Convention.

Historical background

The Committee has, over a number of years, been following up on the effect given to the recommendations of the Commission of Inquiry, appointed by the Governing Body in March 1997 under article 26 of the Constitution. In its recommendations, the Commission of Inquiry 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;
• -in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and
• -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 also emphasized the need for concrete action to be taken immediately in order 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 identified four areas in which such “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 101st Session of the International Labour Conference (ILC) in May–June 2012, as well as the discussions and conclusions of that Committee (ILC, 101st Session, Provisional Record No. 19, Part Three (A) and document D.5(C)).
• -The documents submitted to the Governing Body at its 313th and 316th Sessions (March and November 2012), as well as the discussions and conclusions of the Governing Body during those sessions, including the decision concerning the implementation of the Joint Strategy for the Elimination of Forced Labour in Myanmar.
• -The report of the mission of the Officers of the Governing Body submitted to the ILC at its 101st Session in May–June 2012 (ILC, 101st Session, Provisional Record Nos 2-2 and 2-2(Add.)).
• -Resolution concerning the measures on the subject of Myanmar adopted under article 33 of the ILO Constitution (ILC, 101st Session, Provisional Record No. 2-4).
• -The communication made by the International Trade Union Confederation (ITUC) received in August 2012, with appendices.
• -The reports and communications of the Government of Myanmar received on 14 and 23 March, 5 and 18 April, 4 May, 25 July, 31 August and 17 October 2012.

The Committee welcomes the positive developments in the application of the Convention by the Government referred to above, and, in particular, the amendment of the legislation, the adoption of the Action Plan for the elimination of all forms of forced labour in Myanmar by 2015, and various measures undertaken by the Government, in collaboration with the ILO, aimed at the eradication of forced labour in practice.

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

In its earlier comments, the Committee has referred to 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 has noted, in particular, that the SU has set out a complaints mechanism with the 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 SU was extended for the fifth time on 23 January 2012, for a further 12-month period from 26 February 2012 until 25 February 2013 (ILC, 101st Session, Provisional Record No. 19, Part Three, document D.5(G)).

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 101st Session of the Conference in June 2012. The Conference Committee welcomed the progress achieved towards complying with the 1998 recommendations of the Commission of Inquiry. It observed that many important steps had been taken by the Government in this regard and noted, in particular, the following: (i) the orders issued by the Commander-in-Chief of the Defence Services in March 2012 advising all military personnel that strict and stern military disciplinary actions shall be taken against perpetrators of military under-age recruitment, and those of April 2012 which make the new law prohibiting forced labour applicable to the military with perpetrators being prosecuted under section 374 of the Penal Code; (ii) budget allocations made for the payment of wages for public works at all levels for 2012–13; (iii) the progress made on the translation into local languages of the brochure on the complaints mechanism; (iv) the statement made by the President on May Day 2012 committing the Government to acceleration of action to ensure the eradication of all forms of forced labour; and (v) disciplinary measures taken against 166 military personnel and action taken under section 374 of the Penal Code against 170 other government officials and five military personnel. The Conference Committee also welcomed the elaboration of a draft Action Plan, developed between the Government and the ILO, to implement the comprehensive, proactive joint strategy for the elimination of all forms of forced labour in Myanmar, which was the subject of a Memorandum of Understanding on the elimination of forced labour in Myanmar signed on 16 March 2012. Welcoming the elaborate and detailed Action Plan, the Conference Committee insisted that all the social partners and civil society organizations should play an active role in prioritizing the elements in the Plan most relevant to the immediate implementation of the Commission of Inquiry’s recommendations.

However, the Conference Committee reiterated its concern over the provision of the Constitution which provides for an exception to the prohibition of forced labour for “duties assigned by the Union in accordance with the law in the interest of the public”. It trusted that steps would be taken to ensure that any exception to forced labour provided for in the constitutional and legislative framework is strictly limited to the narrow scope of exceptions established by Convention No. 29.

The Conference Committee welcomed the Government representative’s statement that a culture of impunity would not be tolerated. The Committee trusted that the newly adopted legislation would be effectively applied with effective and dissuasive sanctions imposed to punish the use of forced labour in all sectors, and requested the Government to review the impact of the measures that it had reported on so as to be in a position to strengthen them where necessary. It firmly emphasized the importance of the rule of law and the independence of the judiciary as necessary preconditions for real democratization and change. The Conference Committee encouraged the Government and the ILO to monitor closely the progress made in the implementation of the Action Plan, especially as regards the use of forced labour by the military, and requested that information be provided in this regard to the ILO this year.

The Conference Committee also welcomed the release of numerous political and labour activist detainees and expected that all further such prisoners would be immediately released. It trusted that complainants and facilitators would continue to be protected in relation to their use of the complaints mechanism, the retention of which the Conference Committee considered to be critically important. It once again called on all investors to ensure that their activity in Myanmar was not used to perpetuate the use of forced labour but rather made a contribution to its complete eradication, in full respect for international labour standards. Finally, the Conference Committee called for the strengthening of the capacity of the ILO Liaison Office to assist the Government, the social partners and all other relevant stakeholders to play a full and constructive role in the efforts made to eliminate forced labour.

Resolution concerning the measures on the subject of Myanmar adopted by the Conference

The Committee notes a resolution on ILO action regarding Myanmar adopted by the ILC at its 101st Session in June 2012. This resolution followed up on the conclusions of the 313th Session of the Governing Body in March 2012, the Report and the recommendations of the mission to Myanmar undertaken by the Governing Body Officers in May 2012, and the conclusions of the Committee on the Application of Standards at its special sitting on the application of the Convention by Myanmar.

The Committee notes that the mission concluded in its report that there is sufficient political will and technical need in Myanmar to justify a substantially increased and diversified engagement by the ILO. As to whether sufficient progress has been made in implementing the recommendations of the Commission of Inquiry to justify a modification or withdrawal of the measures decided by the Conference in 1999 and 2000, the mission concluded that the legislative changes introduced by the new Government, and increasingly taking effect in recent months, appear to respond appropriately to the Commission of Inquiry’s first recommendation on amending the legislation. The mission also concluded that, notwithstanding the progress made in creating an appropriate legal framework, the greatest outstanding challenge in the implementation of the recommendations of the Commission of Inquiry is the total elimination of the actual practice of forced labour in Myanmar. The mission emphasized that existing practices, which have been accepted for decades, will require a major and sustained effort of awareness raising. As long as the practice of the use of forced labour persists, those responsible for it must be investigated, prosecuted and punished. An independent and impartial judiciary trained on issues of forced labour will help put an end to the climate of impunity. The mission also recalled that the finalization and determined implementation of the comprehensive strategy for the total elimination of all forms of forced labour by 2015 are of critical importance in the definitive fulfilment of the recommendation of the Commission of Inquiry.

The Committee notes that the 2012 resolution effectively removed the restrictions on ILO cooperation with the Government of Myanmar that had been set by the Conference resolution of June 1999. It also suspended for 12 months the recommendation contained in paragraph 1(b) of the resolution adopted by the Conference under article 33 of the Constitution in June 2000. Under the terms of this resolution, the Conference decided, in particular, to lift the limitation imposed on ILO technical cooperation or assistance to the Government of Myanmar, enunciated in the 1999 resolution, to enable the ILO to assist the Government, employers and workers of Myanmar on a variety of issues coming within the ILO’s mandate; allow the Government of Myanmar once again to participate in ILO meetings, symposia and seminars in the same way as any other Member, with social partners from Myanmar receiving the same treatment; and suspend for one year the recommendation contained in paragraph 1(b) of the 2000 resolution, which called on the Organization’s constituents to review their relations with Myanmar and take appropriate measures to ensure that these relations could not be taken advantage of to perpetuate or extend the system of forced labour referred to by the Commission of Inquiry. The resolution also requested the Government of Myanmar to facilitate the enlarged scope of the activities of the International Labour Office in Myanmar through appropriate arrangements.

Discussions in the Governing Body

The Governing Body continued its discussions on this case during its 313th and 316th Sessions in March and November 2012 (GB.313/INS/6, GB.316/INS/5/5). The Committee notes that, following the discussion in March 2012, the Governing Body welcomed the following developments in Myanmar since November 2011: adoption of the Ward or Village Tract Administration Act in February 2012, which contains a provision punishing the exaction of forced labour as a penal offence; repeal of the Village Act and the Towns Act of 1907, and prosecution of some offenders; declaration of intent by the Government to develop a joint strategy with the ILO for the full elimination of all forms of forced labour by 2015; further awareness-raising activities for the civilian and military authorities; and the further release of labour activists from detention. While welcoming these important developments which represent major steps towards meeting the recommendations of the Commission of Inquiry, the Governing Body observed that the strict application of the new law and the prosecution and punishment of offenders are critical to achieving this objective. Such measures should therefore be built into the proposed strategy, which should be accompanied by a high-level public commitment to its implementation and be applied throughout the entire territory of Myanmar, including the border areas, in the context of achieving sustainable peace agreements.

The Committee also notes that, in the course of the discussion in November 2012, the Governing Body noted that the Government, which took office in March 2011, continued to carry out a complex political, economic and social reform and transition to democracy following decades of military rule. The Governing Body welcomed, inter alia, the following developments in Myanmar since March 2012: (i) several meetings of the newly expanded Committee for the elimination of forced labour chaired by the Minister of Labour, with the Deputy Minister of Labour, the Deputy Minister of Defence and the ILO Liaison Officer as co-secretaries; (ii) the establishment of a technical Committee of the Working Group to ensure that the commitments of the Action Plan for the elimination of forced labour are addressed in a timely manner with appropriate coordination and inter-ministry cooperation; (iii) the beginning of the work on the implementation of both the ILO Action Plan on under-age military recruitment and the Joint Action Plan on children in armed conflict under Security Council Resolution 1612, of 27 June 2012; (iv) the release of 46 under-age recruits during the current year, which brings the total of under-age recruits released/discharged from the military under the ILO complaints mechanism to date to 261; (v) preparation of a forced labour brochure in seven languages, which was distributed since June 2012 through the military, the General Administration Department, the Ministry of Labour, and the Ministry of Information and at various seminars and workshops, reproduced in full in Myanmar-language newspapers and journals and broadcast over national radio and television; and (vi) further awareness-raising activities for the civilian and military authorities.

The Governing Body observed that there is a significant degree of commitment by all parties to the implementation of the Action Plan for the elimination of forced labour. However, this was only the beginning of a process to develop the foundations for ongoing concerted work to realize the stated objective. Although there were continuing indications that the practice of using forced labour is being reduced, complaints continue to be received under the mechanism set up by the 2007 SU. Thus, between 1 June and 11 October 2012, 158 complaints have been received under the complaints mechanism, including individual cases of under-age recruitment, forced labour complaints with multiple complainants and human trafficking allegations.

Communication received from the International Trade Union Confederation (ITUC)

The Committee notes that, in its comments, the ITUC welcomes the repeal of the Village Act and the Towns Act and the adoption of the new legislation which contains a provision punishing the exaction of forced labour as a penal offence, in accordance with the Convention. It also welcomes the apparent decline in the exaction of forced labour in practice and the adoption by the Government and the ILO of a joint strategy for the full elimination of all forms of forced labour by 2015. The ITUC expects that all social partners and the civil society organizations will play an active role in prioritizing and assisting in the accelerated application of the elements of the Plan that are most relevant to the immediate implementation of the Commission of Inquiry recommendations.

However, in spite of these positive developments, the ITUC refers to several recent reports which contain allegations about the continued use of forced or compulsory labour in practice in certain regions of the country, in particular by the military. This includes, for example, portering, road construction and repair, military camp construction, fence building and road clearing. Moreover, the ITUC alleges that penal sanctions for the exaction of forced or compulsory labour have not been strictly enforced against the military and civilians. Appended to the ITUC’s communication are three reports which contain allegations relating to forced labour practices by civil and military authorities in Karen, Chin and North Arakan States. The reports contain documented evidence of the incidents of forced labour which involved orders issued by military and civilian officials; information on the results of the surveys based on replies to questionnaires given by heads of household; and a number of field interviews. However, a report concerning Chin State, which focuses on the incidents of forced labour that occurred in 2011, recognizes that the lack of documentation of forced labour exacted by the military in 2012 may be seen as an early indication of efforts on the part of the military to eradicate the practice of portering and other forms of forced labour. A report concerning North Arakan State notes the persistence of forced labour practices in the north, though they noticeably decreased in the central and southern regions of the state. The ITUC concludes that, while some progress is being made, reports covering the three states referred to above provide evidence that forced labour, including forced child labour, remains a serious problem in some areas of the country.

The Government’s reports

The Committee notes the Government’s reports referred to above, which include replies to the Committee’s previous observation, as well as the Government’s response to the above comments by the ITUC and to the earlier comments received from workers’ organizations. It notes, in particular, the Government’s indications concerning the implementation in practice of the Action Plan for the elimination of all forms of forced labour in Myanmar by 2015, elaborated by the Government in cooperation with the ILO. The Government states that the Action Plan has strengthened the activities for the implementation of the SU complaints mechanism and that awareness-raising activities have been intensified in conformity with the Plan. Thus, a series of joint Ministry of Labour/ILO awareness-raising seminars and presentations have been held for villagers, representatives of military and civilian government authorities, police officers, judges, NGOs and representatives of community-based organizations. Military orders have been issued instructing that civilians are not to be used for any military support activity, including portering, sentry/guard duty and camp construction/maintenance in conflict zones. Further orders have been issued instructing that any such civilian support to military operations in non-conflict zones should be freely entered into and provided in the framework of paid employment or service contracts. Orders have also been issued by the Commander-in-Chief of the defence services to all military personnel advising that strict disciplinary actions shall be taken against perpetrators of military under-age recruitment. As regards budget allocations made for the payment of wages for public works at all levels, the Government indicates that officials from the Ministry of Labour and the ILO Liaison Officer had a meeting with officials from the budget department of the Ministry of Finance and Revenue and discussed the national budget allocation procedure; the expenses for labour have been identified, which permits the Ministries concerned to submit their proposals.

The Committee notes that, in his message to the first May Day celebration with tripartite representation, the President committed his Government publicly to the full elimination of all forms of forced labour and to the successful implementation of freedom of association. His statement was widely distributed through all media outlets.

The Committee’s concluding remarks

As regards the amendment of the legislation, the Committee notes with satisfaction the adoption by Parliament of the Ward or Village Tract Administration Law, of 24 February 2012 (as amended on 28 March 2012), which has repealed the Village Act and the Towns Act of 1907 (section 37) and makes the use of forced labour by any person a criminal offence punishable with imprisonment and fines (section 27A).

However, the Committee notes that no action has been taken or contemplated to amend section 359 of the Constitution (Chapter VIII – Citizenship, Fundamental Rights and Duties of Citizens), which exempts from a prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public”. In its earlier comments, 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 the Government’s statement in its reports that the 2008 Constitution has been approved by the people of Myanmar and that no request to amend it has yet been received by Parliament. However, the Committee expresses the firm hope that, following the legislative amendment referred to above, the necessary measures will at last 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.

The Committee welcomes the positive developments in the application of the Convention by the Government referred to above and, in particular, the amendment of the legislation, the adoption of the Action Plan for the elimination of all forms of forced labour in Myanmar by 2015, and various measures undertaken by the Government, in collaboration with the ILO, aimed at the eradication of forced labour for men, women and children in practice. The Committee fully endorses the conclusions concerning Myanmar made by the Conference Committee and the Governing Body and encourages the Government to pursue with vigour its ongoing efforts towards the elimination of forced labour in all its forms, both in law and in practice, by fully implementing the recommendations of the Commission of Inquiry. It requests the Government to provide, in its next report, full information on the measures taken to that effect and, in particular, on the urgent measures taken to ensure that, in practice, forced labour is no longer imposed by the authorities, in particular by the military, as well as on the measures taken to ensure the strict application of the new legislation, so that penalties for the exaction of forced labour under this legislation and the Penal Code are strictly enforced against perpetrators. The Committee also asks the Government to continue to provide information on various practical measures aimed at the eradication of all forms of forced labour, such as the expansion of awareness-raising activities; improvements in dealing with under-age recruitment by the military, including the release of children and imposition of disciplinary and penal sanctions on military personnel; cooperation in the functioning of the SU complaints mechanism; and measures taken to budget adequate means for the replacement of forced or unpaid labour. The Committee reiterates the firm hope that all the necessary measures will be taken without delay to achieve full compliance with the Convention, so as to ensure that all use of forced or compulsory labour in Myanmar is completely eliminated.