Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

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

The Government communicated the following written information.

In 2007, the Myanmar Workers' delegate to the ILC was elected from the Basic Worker Association which covered 11 sectors. A first-level organization had never been formed before. Even though the appointed Workers' delegate, represented most of the workers and had been elected from the sector in which the majority of workers were working, the ILO raised an objection to the Myanmar Workers' delegate. This time, in accordance with the advice of the ILO, the Workers' delegate was elected from the textile industrial sector, where the majority of the workers were working, most of whom were well organized.

The referendum for approval of the Constitution of the Republic of the Union of Myanmar was successfully held in the whole country with massive approval (92.48 per cent). The provisions on the organization of labour organizations were contained in paragraph 96 of Chapter IV, paragraphs 353, 354 and 355 of Chapter VIII and Schedule One, Union Legislative List, in Chapter XV of the Constitution. Once the Constitution came into force, labour organizations would emerge in line with these provisions and would be able to carry out their activities in the interests of the workers.

With regard to the recognition of the Federation of Trade Unions of Burma (FTUB) as a legitimate organization as indicated in paragraph 1093(b) and (e) of the 349th Report of the Committee on Freedom of Association and in the report of the Committee of Experts of 2008, there was no comment about the affiliation of the FTUB to the International Trade Union Confederation (ITUC) or having associated status with the ITUC, but there was strong and firm evidence of the FTUB committing a series of terrorist activities and bombing in Myanmar. The FTUB supported financially and took part in these terrorist acts and supplied explosive materials to cause unstable situations in the country. As these terrorist acts were forbidden by the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism, the Ministry of Home Affairs announced that the FTUB was a terrorist group in Declaration No. 1/2006 of 12 April 2006. It was therefore not possible to accept the FTUB as a legitimate organization.

Concerning the five persons arrested, including Ma Shwe Yee Nyunt, after investigation of the matters contained in the letters from Mr Guy Ryder, General Secretary of the ITUC, and the ILO, it was found that they admitted being neither workers of nor representing the Myanmar workers. Although they breached section 13(1) of the 1974 Immigration Act for illegally entering and re-entering the country, the Government did not take action against them because they admitted their fault honestly, telling the truth and saying openly that there was no trade union in the country. They also said that they had accepted financial assistance by pretending to be members of trade unions. The five persons, including Shwe Yee Nyunt, were illegally entering and re-entering the country and made contact with Ei Shwe Zin Nyunt, the personal assistant to Maung Maung and accepted 42 lakhs in Myanmar currency (kyats) by pretending to be trade union members. Actually, it was found that they were neither representing the Myanmar workers nor genuine workers, but a group of relatives, making this type of incident with the intention of receiving international financial assistance on the basis of false information.

With regard to the situation of Myanmar workers and their workers' rights under existing labour laws, the legislation respecting workers' associations, collective bargaining and tripartite consultation had been mentioned in the Constitution of the Republic of the Union of Myanmar with a view to being in line with Convention No. 87. Myanmar workers were aware of collective bargaining and practised it under the existing labour laws. Disputes between employers and workers were settled through conciliation and negotiation. Some 411 cases in 2007 and 365 cases in 2008 were settled under tripartite principles with the Township Workers Supervisory Committee playing a role as the Government representative and employers and workers also participating. Such conciliated dispute cases concerned over 2,000 or 3,000 workers.

With regard to the allegations of the murder, arrest, detention, torture and sentencing to many years of imprisonment of trade unionists for the exercise of ordinary trade union activities, action had been taken, not because of the exercise of trade union activities, but because of the breach of the existing laws of the country and attempts to incite hatred or contempt of the Government. Once the State Constitution came into force, labour organizations would emerge in line with the Constitution and the ITUC's comments and the observations of the Committee would automatically be solved at the appropriate time.

In addition, before the Committee a Government representative stated that Myanmar was in the process of transforming into a democratic society and had made significant progress in the implementation of the seven-step road map to democracy. The new Constitution, which was the fourth step in this process and had been approved by 92.48 per cent of the voters, clearly demonstrated the support of the people for this Constitution. The fifth step in implementing the seven-step road map would be free and fair elections to be held in 2010 in accordance with the Constitution.

The rights of citizens, including the right to express their convictions and opinions freely, the right to assemble peacefully and the right to form associations and unions were clearly laid down in article 254, subparagraphs (a), (b) and (c), of the new Constitution. Article 96 of the new Constitution stipulated that the legislative body were to enact laws on labour organizations included in the Union Legislative List, Schedule One, paragraph (r). The new promulgated law would be in line with Convention No. 87, as well as with the Constitution. He was confident that workers in Myanmar would be able to form their own associations and enjoy the fundamental rights as provided for in Chapter VIII, article 354, when the new Constitution would come into operation after the 2010 elections. There was therefore no legal basis to ask for an amendment of the Constitution.

The speaker added that Myanmar had been cooperating with the ILO with a view to fulfilling its obligations under various Conventions ratified by Myanmar. This became clear from the detailed and regular information provided in response to requests or clarifications sought by the ILO.

In addition to the written information provided by his Government, the speaker wished to highlight, with respect to the six workers arrested on May Day in 2007, that those workers had not been arrested for holding a May Day event but for breach of existing laws and for their involvement in unlawful activities and attempted terrorist acts in the country. There was solid evidence that those persons had been receiving instructions, training and financial assistance from the so-called Federation of Trade Unions of Burma (FTUB), an exile terrorist group and unlawful association which masterminded bombings and terrorist acts, to incite public unrest in the country. Any request to release them immediately was an act of interference in national law and constituted an infringement of the legal system of a sovereign State. It was a contradiction to the basic principles of public international law and Article 8 of Convention No. 87, which stipulated that the law of the land should be respected.

Turning to the case of Tin Hla, he considered that time and resources would be wasted if action were to be taken based on fictitious and fabricated facts or incidents. Tin Hla was neither a leader nor a member of a labour union but had worked as a supervisor for Myanmar Railways, which had no union. He had been caught by the police when committing the crime of possessing ammunition and had been subsequently charged and sentenced.

Recently, there was a sham conference which was organized by Maung Maung at Mae Sok, Thailand. In fact, there was a group of four persons including Ma Shwe Yi Nyunt who attended the meeting. In reality, none of them was a worker nor did they represent any workforce. They were a group of relatives who eventually had personal links to Maung Maung. For this group, their association with Maung Maung was punishable under existing laws of Myanmar and under laws of any country countering terrorism. Following an investigation after they had returned, it was revealed by them that they were neither workers nor representing any Myanmar workers and they had been asked to visit Maesot for a different purpose and accepted 4.2 million kyats in Myanmar currency. The purpose of their crossing the border was nothing but a gathering of relatives and friends funded by Maung Maung. These facts were also revealed by them during their meeting with the ILO Liaison Officer on 25 April 2009. The Government had complete records pertaining to the facts mentioned above. As they were the victims of a sham conference masterminded by Maung Maung and they had admitted what they did unwittingly, the Government stopped the investigation and condoned them in the best spirit of cooperation with the ILO.

With respect to the FTUB, he considered it unfortunate that Maung Maung, a fugitive from law who had escaped to a neighbouring country and who had joined anti-government organizations, could take part in the proceedings of the ILO. He was the Secretary-General of the so-called FTUB and the National Council of the Union of Burma (NCUB), an alliance of the Democratic Alliance of Burma and the National Democratic Front (NDF), composed of terrorist groups in exile, which had been resorting to violent acts such as bombings of public places. As their activities were harmful to the population and to the peace, stability and the rule of law of the country, they had been outlawed. These terrorist acts were also forbidden by the United Nations Convention for the Suppression of the Financing of Terrorism, to which Myanmar was a party, and the Ministry of Home Affairs had therefore issued Declaration No. 1/2006 of 12 April 2006, stating that the FTUB and Maung Maung were a terrorist group.

In conclusion, he stated that Myanmar was fully cognizant of its obligations under Convention No. 87 and that measures were being taken to review the existing legislation with a view to examining its compliance with international human rights law and the Constitution, including Chapter VIII. Given the nature and volume of the work, results could not be expected overnight. Myanmar was taking measures and doing its best to comply with the obligations contained in Convention No. 87; meeting this challenge was only a matter of time.

The Worker members stated that the present Committee had rarely had an occasion to assess such an overwhelmingly bad record of arrests, imprisonments and killings of persons for as simple a reason as the exercise of their trade union or political activities. Currently, 91 persons were still in prison following the repression by the Government of the September 2007 uprising. Six workers - Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min - were sentenced to imprisonment for having participated in a 2007 May Day manifestation and for association with the FTUB. The Committee on Freedom of Association called for their immediate release. A member of the Petro-Chemical Corporation Union, Myo Aung Thant, was sentenced to almost 12 years imprisonment for maintaining contacts with the FTUB. The Committee on Freedom of Association had called for his immediate release. Mr Saw Mya Than, an FTUB member and leader of the Education Workers' Union, had been murdered by the army in retaliation for acts, presented by the latter, like a rebel attack. The Committee on Freedom of Association had requested the institution of an independent inquiry. Mr U Tin Hla, a railway electrician, had been arrested along with his entire family on 20 November 2007 and sentenced to seven years in prison for possession of explosives which were, in fact, a harmless toolbox. In reality, he had been sentenced for inciting railways workers to support the popular uprising in September 2007. Ms Su Su Nway, the activist who had brought a forced labour complaint to the ILO which subsequently resulted in the successful conviction of four local officials, had been arrested in November 2007 and detained in jail for her actions in supporting the September 2007 uprising. Two trade union activists, Lay Lay Mon and Myint Soe, had disappeared at the end of September 2007 after having actively participated in the September uprising. In 2006, the FTUB activist Thein Win had been arrested together with seven members of his family. Three of his children had been sentenced to 18 years in prison. One of his children had been tortured and had become mentally unstable. Five political and labour activists, U Aung Thein, Khin Maung Win, Ma Khin Mar Soe, Ma Thein Thein Aye, and U Aung Moe, had been arrested in March 2006 and sentenced to long prison terms for having provided information to the FTUB and other pacifist organizations considered as illegal by the regime. Concerning 934 workers of Haw Wae Garment factory who had gone on strike on 2 May 2006, demanding better working conditions, 48 had been brought before the authority and had been forced to sign a written statement that indicated that there had been no problems at the factory. Ms Naw Bey Bey, an activist member of Karen Health Workers' Union, had been sentenced to four years of hard labour. Mr Saw Thoo Di, an activist of Karen Agricultural Workers' Union had been arrested, tortured and killed on 28 April 2006 by Infantry Battalion 83. On 30 April 2006, the Pha village had been shelled with mortars and rocket-propelled grenades because the authorities had considered that the FTUB and the Federation of Trade Unions-Kawthoolei (FTUK) were holding a demonstration. In June 2005, ten activists of the FTUB had been arrested and then tortured and sentenced, by a special court established in the prison, to prison sentences from three to 25 years for having used satellite phones to convey information to the ILO and to the international trade union movement through an intermediation by the FTUB.

The Worker members stated that it was up to the Conference Committee to denounce all these serious facts of arrest, sentencing to long imprisonments or murders suppressing the exercise of ordinary and normal trade union activities, such as speeches on socio-economic issues, commemorating May Day or sending of information to the trade union movement. The authorities of Myanmar had systematically denied any violations of Convention No. 87. They took pleasure in invoking the provisions of Article 8 of Convention No. 87, indicating the obligation for trade unions to respect the law of the land, but they ignored that the same Article provided that the law of the land should not impair the guarantees provided for in this Convention. All member States of the ILO had the obligation to respect freely ratified Conventions. The truth was that there was currently no legal basis providing for freedom of association in Myanmar. The new Constitution subjected freedom of association "to the laws enacted for State security, prevalence of law and order, community peace and tranquillity or public order and morality". Several legislative provisions were restricting, directly or indirectly, freedom of association: Order No. 6/88 requiring permission to form an organization; Order No. 2/88 prohibiting the gathering, walking or marching in procession by a group of five or more people; the Unlawful Association Act of 1908; the 1926 Trade Union Act; and the 1964 Law instituting an obligatory system of organization and representation of workers. The Worker members concluded by stating that freedom of association did not exist in Myanmar.

The Employer members recalled that the Government had ratified the Convention over 50 years ago. The present case had been discussed since 1991 (last time in 2005), and had, for many years, made the object of a special paragraph due to the continuous failure of the Government to implement the Convention.

This year's extensive observation carried a double footnote and referred to the severe repression of the 2007 uprising; the arrest, heavy-handed interrogation and long prison sentences imposed on six workers who participated in the 2007 May Day event; the significant harassment of their lawyers which had prompted them to withdraw from the case; and several additional convictions to further prison terms for associating with the FTUB and for illegally crossing the border. Concerning the relevant case, the Committee on Freedom of Association had concluded in its 349th Report that it was "undeniable that the six persons were punished for exercising their fundamental right to freedom of association and the freedom of expression". The Committee of Experts had further noted the detention and incarceration of a long list of other trade union activists contained in the observations submitted by the ITUC.

In view of the above, the Employer members agreed with the Committee of Experts that there was a lack of civil liberties in Myanmar, in particular freedom of movement, freedom of expression, freedom of assembly, freedom of association and the right to a fair trial. All those civil liberties were fundamental for making Convention No. 87 a reality. The Employer members expressed their conviction that there were no free and independent trade unions in Myanmar, given that all trade union activities constituted punishable offences under the law, which the Government did not deny.

The Employer members expressed doubts as to the Government's statement that the constitutional amendment concerning freedom of association would give effect to the Convention. In the absence of legislation implementing the rights contained in the Convention, any imparted civil liberties would lack protection. They therefore urged the Government to communicate to the Committee of Experts, as soon as possible, drafts of the texts of the long-overdue laws and regulations implementing the rights contained in the Convention, for analysis.

With reference to a credentials claim regarding the current Worker representative of the delegation of Myanmar, the Employer members recalled that, last year, the Workers' delegate was found to be a management official. Moreover, the Employer members believed that the discrepancy between the large Government delegation and the representation of employers and workers by only one delegate each, illustrated a lack of true tripartism, which was an essential part of a viable freedom of association.

The Government member of the United States recalled that the Committee of Experts had used the strongest language available to it to deplore the persistent failure of the Burmese authorities to guarantee freedom of association in both law and practice. In her view, it was undeniable and deeply disturbing that people in Burma were punished for exercising their fundamental rights of freedom of association and freedom of expression, and that the most ordinary trade union activities were considered to be criminal offences subject to severe punishment. The Committee of Experts and the Committee on Freedom of Association had condemned many instances where the fundamental civil liberties of trade union members, officials and supporters had been violated, including intimidation, arrest, torture, imprisonment and murder. The supervisory bodies had repeatedly stressed that a genuinely free and independent trade union movement could only develop where fundamental human rights were being respected.

She referred to the broad and long-standing legal restrictions on the right of workers to establish, join, and participate in organizations of their own choosing. While the Burmese authorities contended that a legislative framework had been established by the new Constitution and that steps were being taken for the establishment of trade unions at the basic level, the Committee of Experts noted with deep regret that the new provisions gave rise to continued violations of freedom of association in law and practice. It further noted with regret the lack of any meaningful consultation of the social partners and civil society to create a legal framework that would guarantee respect for, and realization of, freedom of association.

The speaker regretted the failure of the Burmese authorities to give serious consideration to the views of the ILO supervisory bodies regarding the authorities' continued and baseless refusal to recognize the FTUB as a legitimate trade union organization. She further regretted the persistent failure of the Burmese authorities to respect international legal obligations that had been voluntarily accepted over 50 years ago. It was therefore difficult to conclude that there had been any genuine progress to remedy the serious and urgent situation that the Committee of Experts had been examining for so many years.

In 2005, the Conference Committee had concluded that the persistence of forced labour in Burma could not be dissociated from the prevailing absence of freedom of association. If the Burmese authorities were truly serious about eliminating forced labour, they would need to recognize that strong and independent workers' organizations could play a significant role in accomplishing that goal. The speaker expressed the hope that the Burmese authorities would avail themselves of the ILO's assistance and advice in taking the necessary steps to bring law and practice into conformity with Convention No. 87.

An observer representing the International Trade Union Confederation (ITUC), stated that in 2008, one able-bodied Burmese seaman had died and another had been seriously wounded in an accident. The Seamen's Employment Control Division (SECD), the section of the junta's administration branch for seafarers from Burma, had pressured the families of these seafarers not to contact the International Transport Federation (ITF) that covered seafarers around the world, or ask for compensation directly from the company, but to wait for compensation to be awarded in accordance with standards implemented by the State Peace and Development Council (SPDC). This was not an isolated case. It was but one example of the methods used by the SPDC systematically to control Burmese workers and deprive them of their rights.

The seafarers of Burma worked through company contracts that provided less than 50 per cent of the ITF standard pay. Should the seafarers receive more pay than the company contracts allowed, the seafarers were required by the SECD to return the extra pay to the companies, or the SECD banned them for up to three years.

The Federation of Trade Unions of Burma (FTUB) member who worked on the "Global Mariner" education ship of the ITF had now become an ITF inspector in Houston, Texas, and was handling these cases on behalf of the SIU/ITF and their families. His greatest challenge in assisting the seafarers and their families came not from the companies for which they worked, but from the SECD, or the SPDC, which controlled the SECD.

In Burma, freedom of association and freedom of expression were strictly prohibited. Organizing of any kind, whether among workers or among public citizens, whether openly or behind closed doors, was quickly quashed through the SPDC's extensive network of informers, the regular use of brutal force, and the overt manipulation of the legal system using fabricated charges.

The shop-floor workers in industrial zones of the textile and garment industries, worked eight hours a day, five days a week for the equivalent of 50 cents per day. Only with compulsory overtime and work on the weekends did they earn up to $1 a day. Even if the workers were able to earn that $1 per day, pay was frequently late. If workers tried to organize to ask for their rightful pay collectively, once the dispute was over, the workers who took the initiative to organize were dismissed, through some alternative reason that was found to justify their dismissal.

Workers in agriculture were often ordered to grow government project crops for example, biofuel crops and sugar cane that did not benefit them. In the process, many were evicted from their land with no possibility to oppose this, in violation of the ratified Right of Association (Agriculture) Convention, 1921 (No. 11).

In 1988, when the FTUB had begun forming trade unions and participating in efforts to highlight the social and economic problems in Burma, the workers had been dismissed from their jobs and been attacked by the military regime and either forced to leave the country or face arrest. Trade union members had been persecuted and arrested by the regime, their families pressured and isolated by the SPDC and its thugs. At present, there were 38 workers' rights activists under detention - all with fabricated charges imposed after their arrests.

The SPDC's pressure had made labour organizing in Burma quite impossible. The FTUB had had to work 18 years in order to hold its first congress in March 2009. The delay was due to the fact that the SPDC continued to enforce Orders Nos 2/88 and 6/88, which, respectively, prohibited meetings of five or more persons and required the SPDC's permission to form any type of organization. The arrests of FTUB delegates after the congress was proof of that. These Orders were clear violations of the SPDC's obligations under ratified ILO Conventions.

Burma needed to comprehensively reform both the Constitution and legislation in order for workers' rights to be protected. Not only should workers be guaranteed basic rights, such as freedom of association and expression, but they should also be provided with education on their rights. The junta had now orchestrated voting for a workers' representative. Having workers vote for a representative without knowing why they were voting, and having a representative who did not understand the responsibilities, was not the way to introduce freedom of association or the means to develop independent trade unions. Nor should it be allowed to be the way to avoid implementing the recommendations of the ILO, as the SPDC was doing.

As reported by the Committee of Experts, section 354 of the junta's new Constitution, imposed under duress, would give rise to continued violations of freedom of association in both law and in practice. Section 354 was but one reason why the FTUB had rejected the SPDC's Constitution.

The speaker asked that the ILO, in consultation with the Worker members, issued clear recommendations to the SPDC on steps it should take to meet its ILO treaty obligations, so that its legislation would provide for freedom of association and be brought into compliance with international standards, and these steps should be timebound. Enforcement actions should be prepared by the ILO to ensure no further delays by the junta. He called for the full recognition of the FTUB as the legitimate trade union, working through peaceful and non-violent means inside Burma. The speaker called on the ILO and all of its members to do everything in their power to work with the ILO, particularly on the needed reviews of the junta's Constitution before it would be imposed on the people in 2010.

The Government member of India had listened carefully to the statement made by the Government representative and expressed his satisfaction over the tangible progress made and the further strengthening of cooperation between the Government and the ILO. It was a matter of satisfaction to note that the mutually agreed mechanisms between the Government and the ILO were functioning effectively.

The Government had reaffirmed that the new Constitution guaranteed the rights of citizens, including the right to express convictions and opinions freely, the right to assemble peacefully and the right to form associations and unions. The Government had further affirmed that the new laws to be enacted concerning labour organizations would be in conformity with Convention No. 87, and that hundreds of domestic laws were currently under review so as to ensure their compliance with the provisions of the new Constitution and international human rights standards. Under these circumstances, India once again encouraged continued dialogue and cooperation between Myanmar and the ILO.

The Worker member of Indonesia expressed full support for the recommendation, made by some members, that the FTUB be recognized as a legitimate trade union. Having participated in the first FTUB congress - which took place from 22 to 24 March 2009 and included as participants representatives from 20 ASEAN country trade unions, the General Secretary of ITUC Asia-Pacific, and representatives from the European unions FNV and CISL - he stated that he was impressed by the entire proceedings and outcomes.

He refuted the Government's allegation that the FTUB was not represented anywhere in the country's workforce. The FTUB congress was attended by 150 delegates, the majority of whom worked inside the country, in such sectors as transport, education, textile and garments, public services, agriculture, health, and mining. It was clear from discussions with these delegates that a genuine trade union such as the FTUB was necessary to protect workers' rights and promote decent work in Burma. Despite the restrictions it faced, the FTUB's membership continued to grow, as more workers contacted them in order to register. Furthermore, more workers were listening to FTUB radio, which was broadcast inside the country. As ITUC Asia-Pacific and the ASEAN Trade Union Council (ATUC) had expressed their commitment to accepting FTUB as an affiliate, he hoped that the Government would similarly extend recognition to the union.

He recalled that the FTUB congress had issued several declarations, including calls for the immediate release of Aung San Suu Kyi and all political prisoners, including ethnic and trade union leaders, as well as for the recognition of the ILO's fundamental role in the fight against forced labour and the promotion of freedom of association. Finally, he stressed that there was no evidence to support the claim that the FTUB was a terrorist organization. An organization that struggled against dictatorship and protected workers' rights through democratic, non-violent means could not be considered a terrorist one.

The Government member of the Russian Federation recognized that it was essential for ILO member States to respect their obligations with regard to implementing international labour Conventions. After having listened attentively to the Government representative, he had noted that the country was in the process of large-scale constitutional reform. The new Constitution sanctioned the right to freedom of association. Furthermore, a new law on trade unions was going to be adopted. It was essential to strengthen cooperation between the ILO and the Government in order to ensure the success of labour reforms. He strongly hoped that such cooperation would bring about successful results.

The Worker member of Sweden, speaking on behalf of the workers of the Nordic countries, stated that countries which did not permit free and democratic trade unions would never attain sustainable growth, or social justice. Burma was such a country; the absence of freedom of association therein had led to widespread poverty, social exclusion, and negative growth overall. Deploring that no progress in the national situation had been witnessed, though the Committee had dealt with this case year after year, she urged the Government to ensure respect for freedom of association and put an end to the period of repression that had lasted for over 50 years. She further expressed support for the ITUC's and the FTUB's calls for the adoption of more effective measures against the Government in order to bring about change.

The branding of the FTUB as an illegal terrorist organization was entirely unacceptable. She maintained that the FTUB was a democratic, representative workers' organization, which only a few months ago had successfully convened its first congress, and commended the latter for this achievement. She stated that next year's national elections, which were to be based on the new Constitution, would not improve the country's situation. Ethnic groups were excluded from the elections, the military was to keep 25 per cent of the allotted seats in Parliament, and people of Burmese nationality who had lived outside Burma for more than five years were not allowed to vote. The election was, as such, not free. She urged the Government to amend the Constitution to allow all people and parties to participate in the process as well as to allow for free and independent trade unions, in line with the comments of the Committee of Experts.

She stated that after more than five decades of dictatorship, the country's population was now overwhelmingly a poor one. The military and its leaders had enriched only themselves, whereas for workers the situation was extremely grave; the cost of food, shamefully, was such that families would often go hungry unless both parents worked every day. She concluded by declaring that allowing democratic unions such as the FTUB to exercise the rights enshrined in Convention No. 87 was the only way to change this deplorable situation, and instead embark on the road to prosperity and social justice for the entire nation.

The Government member of China stated that the challenges that Myanmar faced should be taken into consideration. Progress towards democratization had been noted. The Government was considering the measures that would be needed in its domestic policies in order to conform to the Conventions that it had ratified while new laws had been adopted with regard to labour. Such action reflected the will of the Government to promote human rights and to protect workers. He hoped therefore that the ILO would continue its dialogue with the Government. Technical assistance from the Office was essential for the people of Myanmar.

The Government member of Cambodia expressed his appreciation regarding the progress in Myanmar relating to the adoption of a new Constitution which included a chapter on fundamental rights and duties of citizens and ensured the right to freedom of expression, the right to assemble peacefully and the right to form associations and unions. Many domestic laws and regulations were currently under review to determine compliance of the new Constitution with international human rights standards. This new progress clearly proved the commitment of the Government to comply with the provisions of Convention No. 87. Even though there was a need for a clear change on this issue, the speaker was convinced that given the excellent cooperation between the Government and the ILO, compliance with Convention No. 87 would gradually improve in the country. In this context, Cambodia strongly encouraged cooperation between the Government and the ILO, especially in the context of the process of the revision of laws and regulations at issue.

The Worker member of the United States stated that perhaps no country was more guilty of violating fundamental human rights, as reflected in the UN Charter, the Universal Declaration of Human Rights, and the ILO's Conventions, than Burma. In September 2007, the Burmese people mobilized their largest social and political uprising since 1988, when the military massacred 3,000 people. The crackdown of 2007 left at least 110 persons dead and thousands injured. Given that Burma's persecution of its citizens for attempting to exercise fundamental human rights was well documented, and in turn inspired condemnation from all over the world, year after year, it was sobering to realize that violations of human rights - including those rights enshrined in Convention No. 87 - continued to occur at an unrelenting and unrepentant pace. He recalled that Convention No. 87 guaranteed workers freedom of association rights, free from fear of discrimination, harassment, imprisonment or torture, and that Article 3 of the Convention specifically prohibited the public authorities from interfering with this right or impeding its lawful exercise. Such interference, however, was precisely the kind of conduct the Government continued to display with respect to the exercise of freedom of association.

He noted that the Committee of Experts' report contained such information as the arrest and interrogation of six workers for participating in a 2007 May Day event at the "American Center" in Rangoon. Serious interference with the parties' legal representation had taken place, moreover, and they were handed down prison sentences of 20 years for sedition, while four others were convicted and sentenced to five years in prison for association with the FTUB. Such actions represented a profound assault on human rights. They also served to intimidate all those who wished to exercise their rights under Convention No. 87 and sent a clear message to workers that any attempt to exercise the fundamental human right to freedom of association would incur stiff penalties - including being labelled a terrorist. He called for the immediate release and full restitution of all political prisoners, including all human rights and trade union activists. The Government needed to send a clear and unequivocal message that it would not use imprisonment or forced labour to interfere with the right of freedom of association.

He deplored that the 2008 Constitution enabled the Government to continue to impair the guarantees provided for under Convention No. 87. The provisions on freedom of association in the new Constitution were woefully inadequate, vague, and lacked procedures for their implementation or enforcement. Moreover, the vague rights referenced in the new Constitution were further weakened by gross exceptions, such as the limitation of those rights to the "laws enacted for state security, prevalence of law and order, community peace and tranquillity or public order and morality". Such exceptions rendered the principle of freedom of association virtually meaningless. Moreover, Burma's history of sustained human rights violations cast serious doubt as to whether these "law and order" exceptions would be legitimately and narrowly applied; the exceptions did little to create trust in a regime that had demonstrated time and time again, in rhetoric and in deeds, that it had yet to recognize the rights enshrined in Convention No. 87. Recalling that in last year's conclusions the Committee had expressed serious concerns over the restrictive provisions in the Constitution, and further observing that the Government had failed to act in respect of this matter, he emphasized the need to once again call for amendment of the Constitution in the Committee's conclusions. He concluded by urging the Office to monitor and report all violations of Convention No. 87 in Burma.

The Government member of Cuba stated that, in view of the statement of the Government representative, it was important to stress, in the current case, the principles of Article 8 of Convention No. 87: trade unions should respect the law and national legislation should not impinge upon the guarantees provided in the Convention. She noted the adoption of a new Constitution, which sanctioned trade union activity. The willingness expressed by the Government to make efforts to establish a peaceful nation should therefore be encouraged, as should cooperation and dialogue between the Government and the ILO, with the aim of putting into practice Convention No. 87 on freedom of association. To conclude, she expressed support for the request made by the Committee of Experts that the Government should report on its progress in implementing the Convention with regard to the provisions of the new Constitution.

The Worker member of Japan, in supporting the previous statements made by the Worker members, noted that this was one of the most serious cases under examination, which had been discussed over and over again and had been subject to a special paragraph repeatedly. She pointed out that still no concrete measures had been taken to enact legislation in order to guarantee to all workers the right to establish and join organizations of their own choosing. On the contrary, the Government indicated it would maintain for some more time Orders Nos 2/88 and 6/88, which the Committee of Experts and the Conference Committee had repeatedly urged the Government to repeal immediately. These two Orders were most seriously impairing the right to organize, and had to be immediately repealed by all means.

The Government indicated that the new Constitution provided for freedom of association. However, she profoundly regretted that a broad exclusion clause had been added, as pointed out by the Committee of Experts, which stipulated that the exercise of freedom of association was subject to the laws enacted for state security, prevalence of law and order, community peace and tranquillity of public order and morality. It was peculiar to have such a long list of exclusions and it was therefore likely that even under the new Constitution, violations of freedom of association in law and practice would continue.

The Committee on Freedom of Association had ruled that the FTUB was a legitimate trade union aimed at defending and promoting the rights and interests of Burmese workers. However, the FTUB had been forced to operate in a clandestine manner and was the object of very serious suppression from the Government, who impeded the FTUB from existing freely and carrying out its activities as a full-fledged union.

The Government also had to understand that genuine freedom of association could not be realized without civil liberties and respect for civil society. In this regard, a first step had to be the immediate release of Ms Aung San Suu Kyi and the more than 2,100 political prisoners including labour activists. She urged the Committee to come up with the strongest possible message to the Burmese authorities to immediately recognize, guarantee and promote freedom of association and the right to organize.

The Government representative of Myanmar stated that he had listened carefully to the interventions made and thanked those speakers who had spoken in an objective and constructive way. His Excellency U Wunna Maung Lwin had clearly spelled out the present political situation of Myanmar and what Myanmar was doing and would do with regard to the application of Convention No. 87. There were divergent views on what Myanmar was doing to meet its obligations under Convention No. 87. There had been some speakers who were living in glass houses and throwing stones at others. There had also been some who could provide nothing but words for the benefit of workers in Myanmar. Some of them were acting as champions for the cause of workers in Myanmar, and had to disguise themselves for their own survival.

As the economic crisis was affecting all countries these days, the challenge of providing global jobs was an immediate issue to be taken up. In discussing global solutions, he urged those who had a genuine desire to improve the lives of many workers in Myanmar to do so most effectively by working towards removing the economic sanctions imposed on Myanmar. This would be one of the best ways to assist those who had lost their jobs because of sanctions to return to employment, because sanctions hurt workers' jobs.

The new Constitution had been adopted by over 90 per cent of voters and the Government had clearly declared that free and fair elections would be held in 2010 in accordance with the new Constitution. Citizens' rights were guaranteed in the new Constitution under Chapter VIII, entitled Citizenship, Fundamental Rights and Duties of Citizens. Citizens' rights included the right to express convictions and opinions freely, the right to assemble peacefully and the right to form associations and unions. There could be no doubt that once the new Constitution came fully into effect, workers' associations would soon come into existence.

The legal action against Ms Aung San Suu Kyi was an internal affair of Myanmar taking action through its legal system in accordance with domestic law. He referred in this context to the universal legal principle that no one is above the law. Only when this legal principle was upheld, put into practice and encouraged would there be rule of law in a country. His only comment on what had been said concerning the trial of Ms Aung San Suu Kyi was that all had been done and would be done in accordance with the law, applying well-accepted principles of justice.

It was regrettable that Mr Maung Maung, who had a criminal and terrorist record, had been permitted to make a presentation before the Committee. His activities, past and present, had done nothing to improve the situation of the Myanmar workers and he was trying to damage the peace and stability of the country. Through an examination of his records and credentials it could be found that he was not a genuine labour activist. It was hard to believe that a fugitive or a group of fugitives with refuge abroad could represent workers residing in a country which was thousands of miles away. They had not set foot on Myanmar territory in decades and it could therefore reasonably be asked how they could possibly share and advance the lives of workers in Myanmar. Mr Maung Maung was a fugitive from the law and the so-called FTUB had never existed in any form at any time within Myanmar. The Government had repeatedly pointed out that there was solid evidence that Mr Maung Maung and the FTUB had masterminded a number of bombings in Myanmar. In short, Myanmar would never recognize the FTUB, a terrorist group in exile, run by an outlaw. His Government would thus continue to object to his attendance at ILO conferences.

Some speakers had been referring to the name of his country incorrectly. The official communications from the United Nations and its agencies addressed the country correctly as Myanmar, as well as ASEAN, BIMSTEC, FEALAC. Even the letter addressed to the Director-General of the ILO by ITUC signed by Director Raquel Gonzalez on 4 June 2009 observed the correct usage. There were just a handful of groups and nations who disregarded the real situation and intentionally and disrespectfully referred to his country by a different name. Their action was in contempt of the Chair and should be considered a serious matter.

The Employer members wished to note at the outset the substantial difference in tone in the discussion, especially in the final statement by the Government representative as compared to the constructive atmosphere which had prevailed during the special sitting on the observance by Myanmar of Convention No. 29. All those who had participated in the Committee came with goodwill and had differing points of view because of their differences in background, origins, etc. Past experience in the Committee had shown that when faced with differing points of view, a disparaging approach by governments was not successful in addressing the problems. The issues raised in this case went to the root of democracy and civil liberties of people. The case had a clear and substantial history which, even with the prospect of the adoption of a new Constitution, naturally made one sceptical as to whether this Constitution could really make a difference. The question was what could make this Constitution real in the face of the continuous failure to implement the Convention, which should be reflected once more in a special paragraph in the Committee's report. If the Government wanted to show some goodwill, it would agree that the Liaison Officer in Myanmar facilitated education on freedom of association. The Employer members asked the Government whether it would agree to such facilitation, as it would be an important first step. They concluded by noting that this was a serious case and deserved serious treatment.

The Worker members stated that they should once again denounce the murders, torture, arrests and imprisonment of trade union members for involvement in union activity that was considered completely normal in other countries; those violations, as well as the terms used by the Government representative to describe an honest trade union member, warranted the creation of a commission of inquiry. The ongoing violations, in law and in practice, of freedom of association would continue for a long time if respect for fundamental civil liberties was not restored. It was for that reason that the Worker members had made the following requests: that the Constitution be revised, particularly the articles on freedom of association and on forced labour; that the rulings and laws on illegal association be repealed; that the FTUB, whose representativeness had been attested to by a number of speakers, be both recognized and legalized; that Aung San Suu Kyi and all other trade union leaders and political prisoners who had exercised their right to freedom of speech and of association be released immediately; and that impunity for acts of violence against trade union members or for imposing forced labour be put to an end. To that end, the Worker members requested the Office to designate a Liaison Officer in the country who would be responsible for handling complaints filed in relation to exercising those rights cited in Convention No. 87. They also requested that the conclusions of the Committee be included in a special paragraph on the continued failure to implement the Convention.

Conclusions

The Committee took note of the written and oral information provided by the Government representative and the detailed discussion that followed. The Committee also recalled that it had discussed this serious case on numerous occasions over the last two decades and that its conclusions had been listed in a special paragraph for continuous failure to implement the Convention since 1996.

The Committee deplored the gravity of the information provided to the Committee of Experts by the International Trade Union Confederation (ITUC) with respect not only to the long-standing absence of a legislative framework for the establishment of free and independent trade union organizations, but also of the grave allegations of arrest, detention and denial of workers basic civil liberties, some of which had been examined by the Committee on Freedom of Association.

The Committee took note of the statement made by the Government representative in which he stressed that Myanmar was in the process of transforming to a democratic society and that freedom of association rights, as well as other basic civil liberties, had been provided for in the new Constitution. Once the Constitution came into force, labour organizations would emerge in line with it and would be able to carry out activities for the interests of workers. With regard to the question of the recognition of the Federation of Trade Unions of Burma (FTUB), the Government reiterated its previous statement that the Ministry of Home Affairs had declared the FTUB to be a terrorist organization in 2006; it was therefore not possible to recognize it as a legitimate organization. As regards the allegations of murder, arrest, detention, torture and sentencing of trade unionists, the Government explained that action was not taken because of the exercise of trade union activities, but rather due to breaches of existing laws and attempts to bring hatred and contempt upon the Government. The Government also provided information on the role played by the Township Workers Supervisory Committee in dispute settlement.

Recalling that fundamental divergences had existed between the national legislation and practice and the Convention ever since it had been ratified more than 50 years ago, the Committee once again urged the Government in the strongest terms to adopt immediately the necessary measures and mechanisms for the full assurance to all workers and employers of the rights provided for under the Convention. It once again urged the Government to repeal Orders Nos 2/88 and 6/88, as well as the Unlawful Association Act, so that they could not be applied in a manner that would infringe upon the rights of workers' and employers' organizations.

While taking note of the Government's statement that its Constitution had been overwhelmingly approved through a referendum by over 90 per cent of the population and that it included respect for freedom of association and basic civil liberties, the Committee wished to highlight the intrinsic link between freedom of association and democracy and observed with regret that the Government had embarked upon a road map for the latter without ensuring the basic requisites for the former. The Committee was obliged once again to stress that respect for civil liberties was essential for the exercise of freedom of association and called upon the Government to take concrete steps urgently, with the full and genuine participation of all sectors of society regardless of their political views, to ensure that the Constitution, the legislation and the practice were fully brought into line with the Convention. It urged the Government to take all measures to ensure that workers and employers could exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats.

The Committee continued to observe with extreme concern that many people remained in prison for exercising their rights to freedom of expression and association, despite its calls for their immediate release. The Committee therefore once again called upon the Government to ensure the immediate release of: Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min, as well as all other persons detained for exercising their basic civil liberties and freedom of association rights. The Committee once again recalled the repeated recommendations made by the Committee of Experts and the Committee on Freedom of Association for the recognition of trade union organizations, including the FTUB, and urged the Government to put an end to the persecution of workers or other persons for having contact with workers' organizations, including those operating in exile.

The Committee recalled its previous conclusion that the persistence of forced labour could not be disassociated from the prevailing situation of a complete absence of freedom of association and the systematic persecution of those who tried to organize and called upon the Government to accept an extension of the ILO presence to cover the matters relating to Convention No. 87.

The Committee urged the Government to transmit all relevant draft laws and a detailed report on the concrete measures taken to ensure significant improvements in the application of the Convention, including as regards the serious matters raised by the ITUC, to the Committee of Experts at its up-coming session. The Committee expressed the firm hope that it would be in a position to observe meaningful progress in this regard at its next session.

The Committee decided to include its conclusions in a special paragraph of its report. It also decided to mention this case as a case of continued failure to implement the Convention.