Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

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

A Government representative recalled that, in previous sessions of the International Labour Conference, information relating to the application of Convention No. 87 had been provided to the Conference Committee, some members of which had commented on the continued efforts of his Government to enact a new trade union law. He reaffirmed the interest of his Government in promoting and protecting the legitimate rights of all workers. A total of 17 labour-related laws were still in force in his country. Half of those laws had been enacted during the British colonial days, while the remaining half had been adopted after the attainment of independence nearly five decades ago. The Department of Labour under the Ministry of Labour was mainly responsible for reviewing and redrafting all laws to ensure that they were in conformity with changing circumstances. In the process of reviewing and redrafting laws, priority had been given to the Trade Union Law, the Workman's Compensation Law, the Factories Law, the Leave and Holiday Law, the Minimum Wages Law and the Employment and Training Law. Other labour laws were also scheduled to undergo the same process.

Focusing on the draft trade union law, he stated that the Department of Labour and the Office of the Attorney-General had approved the draft and submitted it to the Central Laws Scrutiny Body. After scrutinizing the draft, the Central Body had returned it to the Labour Ministry with remarks and recommendations for modifications and redrafting. One important recommendation by the Central Body was that, following the necessary drafting, the revised text should be tabled and subjected to extensive consultation with all the parties concerned, namely employers' organizations, such as the Union of Myanmar Chamber of Commerce and Industry, representatives of public and private enterprises and workers' welfare associations. Taking into consideration the recommendation of the Central Laws Scrutiny Body, which was to be implemented this year, it was hoped that it would be possible to submit the revised draft to the respective supervisory body at an appropriate time.

The Workers' members recalled that Myanmar was a persistent violator of the Convention and had therefore frequently come before the Committee. The case had been discussed in 1987, 1989, 1993, 1994, 1995 and 1996. For over 40 years, the ILO had been requesting the Government to respect the fundamental principles of freedom of association. The Committee had requested it to ensure the right of workers to freely establish and to join first-level unions, federations and confederations, without previous authorization, subject only to the rules of the organization concerned, and to freely affiliate to international workers' organizations, in accordance with Articles 2, 5 and 6 of the Convention.

Over the years, the Government had bluntly refused to cooperate with the Committee and had once again failed to supply the report requested, despite the inclusion of the case in a special paragraph last year. The case had been mentioned by the Committee in a special paragraph in 1993, 1995 and 1996 and deserved to be placed in a special paragraph once again this year. The message from the Government of Myanmar was clearly that it considered it more important to deny the workers in the country freedom of association than to live up to the obligations deriving from the Convention. This amounted to an insult to all ILO constituents and the Government rightfully deserved worldwide condemnation for its behaviour.

In 1996, the Government representative had reaffirmed his Government's firm commitment to the principles of freedom of association and to a multi-party democratic system, a free market economy, justice and human rights for all. However, the Government's conception of what this implied appeared to differ enormously from that of the Workers' members. The continued repression and violation of human rights, including the right to freedom of association and democracy, by a military regime showed that the Government had no intention whatsoever of complying with its obligations or the requests of the Committee. The Workers' members recalled that a Commission of Inquiry had been set up to investigate a complaint under article 26 of the Constitution concerning the non-observance of the Forced Labour Convention, 1930 (No. 29). Moreover, the Government representative had requested technical assistance from the ILO on the application of Convention No. 87, but the ILO representative had been prevented by the authorities from undertaking the mission.

For some years, the Workers' members had been raising the matter of seafarers in Myanmar and had been requesting the Government to confirm that they were no longer forced to sign contracts obliging them not to contact international trade union organizations and that they were no longer intimidated if they exercised their rights in accordance with the Convention. Regrettably, the question had to be repeated once again this year.

The Workers' members expressed surprise that Myanmar had recently been admitted to become a future member of the Association of South East Asian Nations (ASEAN). This constituted a setback for the democratic forces in Myanmar and had been criticized by the Nobel Prize winner, Aung San Suu Kyi. The Workers' members were concerned that the demands concerning respect for freedom of association in the country might be relaxed and that, in reality, the ILO Constitution might be set aside. The Declaration of Philadelphia stated that all national and international policies and measures, in particular those of an economic and financial character, should be judged and accepted only if they promoted the fundamental principles of the Organization, including freedom of expression and association. The Workers' members questioned whether the acceptance of Myanmar as a future member of ASEAN would be seen as an example of applying ILO principles with objectivity, impartiality and transparency at the regional level as had been actively advocated in the ILO by some of those Governments concerned.

In conclusion, the Workers' members urged the Government to immediately accept the right of workers to organize freely in trade unions without prior authorization and to affiliate freely with international trade union organizations. However, as no action had been taken by the Government, the Committee should express its dissatisfaction in the strongest possible terms and mention the case in a special paragraph for continued failure to implement the Convention.

The Employers' members observed that the comments made by the Committee of Experts on the case of Myanmar were getting shorter. This was due to the fact that, after repeated examinations of the case, there was almost nothing new to be said. The ILO supervisory bodies had been examining the continued non-existence of freedom of association in the country for decades. Since the early 1980s, the Conference Committee had been placing its conclusions on this case in a special paragraph of its report due to persistent violations of the Convention. When the case had been examined by the Conference Committee the previous year, the Government representative had had nothing new to report and had merely repeated his statements from previous years. There had briefly been some hope that an ILO mission might have been able to assist in addressing the problems related to application of the Convention. However, although the mission had been invited, it had not been received by the authorities in Myanmar and had not therefore been able to provide the necessary assistance. For the past 40 years it had been impossible to establish a trade union or an employers' organization without prior authorization from the national authorities and there were no federations at higher levels. In effect, there was no freedom of association in the country. Although the Government had referred in general terms to certain draft Bills on a number of issues of labour law, there had been no clear indication that any of these would lead to the development of freedom of association. Moreover, once again the Government had not submitted the requested report to the Committee of Experts. This was a very clear indication of a lack of cooperation, and indeed non-cooperation on the part of the Government. The Conference Committee was therefore bound to repeat what it had stated last year and express its regret even more profoundly that, despite its observations, not the slightest progress had been made. Its conclusions should be included once again in a special paragraph of the Committee's report.

The Workers' member of Japan pointed out that this was one of the oldest and most serious cases of violation of Convention No. 87 before this Committee. The Government had accepted to receive a direct contacts mission to the country. Its subsequent failure to do so showed a complete lack of respect for the supervisory machinery and the requirements of the Convention. He further pointed out that freedom of association could not exist without freedom of speech, freedom of expression and freedom of assembly all of which were absent in Myanmar. People who had participated in peaceful demonstrations were regularly arrested and detained, and more than 2,000 had been arrested in 1996. Students and fellow workers who participated in these demonstrations were unfortunately forced to seek asylum. He insisted that the Government bring, without delay, its legislation into conformity with the requirements of the Convention, and announce a scheduled time frame for doing so. He urged the Committee to have Myanmar placed in a special paragraph.

The Workers' member of Pakistan regretted that the Government representative had not bothered to reply to the observation of the Committee of Experts concerning the prevalence of the denial of freedom of association in Myanmar. Basic human rights, including freedom of association, as incorporated in ILO core Conventions, were fundamental to all persons and if they were denied these rights, in any country, no social justice could exist. He, along with the Workers' members, fully supported that freedom of association principles be immediately respected in Myanmar.

The Workers' member of the United States stated that the absolute denial of freedom of association must be viewed in the context of the absolute denial of all basic human rights and freedoms by the military regime. Freedom of association received particular attention, however, for the leaders of the military regime understood all too well that freedom of associaion - the right to come together, to organize - was a necessary prerequisite for the protection of all other rights. This case came before the Committee only a few weeks after 316 followers of Nobel Peace Prize Laureate, Daw Aung San Suu Kyi, were arrested in order to keep them from meeting with each other on 27 May, the seventh anniversary of the landslide victory of her party, the National League for Democracy, in national elections. He pointed out that this case had been examined by the Committee of Experts and this Committee on numerous occasions, for many reasons. The most obvious was the hope that, despite the long history of no progress, the unrelenting pressure of the ILO to ensure that the Government respect its obligation, taken together with a growing international campaign to force the military regime to step down and allow civilian self-government, would one day begin to have an impact. Secondly, despite the fact that nothing of substance had been heard from the Government representative thus far, this was yet another opportunity to communicate directly to the representatives of the military regime, the condemnation of the international community. Finally, it provided this Committee with an opportunity to bring to the attention of the Committee of Experts even more information on the violations of freedom of association by the military regime.

The speaker wished to ask the Government representative, given the vague statements that the latter had made earlier on, about the regime's respect for the rights of workers in Myanmar, and why the Free Trade Unions of Burma (FTUB) was not allowed to function inside the country. Moreover, he wondered why workers who were identified with the FTUB were under constant surveillance by the police and the military intelligence, and why they lived in permanent fear of arrest and torture. He strongly supported the view of both Employers' and Workers' members that this Committee had to find a way to express its extreme displeasure over the lack of progress and cooperation from the military regime in even stronger terms than the previous year. The Committee's conclusions should be contained, once again, in a special paragraph of its report as a case of continued failure to apply the Convention.

The Government member of Denmark, speaking on behalf of the Governments of Austria, Belgium, Canada, Denmark, Finland, Germany, Iceland, the Netherlands, Norway, Sweden, Switzerland and the United Kingdom, expressed his deep regret that the Committee, once again, had to examine the violations by Myanmar of the Convention. In addition to the fact that the Government had not sent a report to the Committee of Experts, it regrettably had not been possible for an ILO mission to visit the country, due to the lack of cooperation on the part of the Government. Although the Government representative had told the Committee, the previous year, that it was his Government's intention to apply the Convention, nothing had happened with regard to the right for workers in Myanmar to establish and join independent trade unions. Reference also had to be made to Resolution 1997/64 of the United Nations Human Rights Commission, which had been adopted by consensus. The Government of Myanmar had been asked to "fulfil its obligations as a State party to the Freedom of Association Convention No. 87 of the ILO, and to cooperate more closely with the ILO". He firmly hoped, that it would be possible to agree on a date for a mission to Myanmar in the near future, that it would be undertaken before the next Conference and that the Government would take the necessary measures to ensure fully the right to organize and join independent trade unions.

The Government member of the United States stated that the situation of the rights of workers in Myanmar was, quite simply and very sadly, deplorable. There were no functioning trade unions. Workers continued to be unable to organize freely. Efforts by the ILO to offer technical assistance had proved fruitless and were at present suspended. In addition, seafarers from Myanmar who had attempted to receive fair treatment and wages for their services on international vessels were intimidated and harassed when they returned home. Those who did speak of free trade unions, dared not return to their country for fear of imprisonment by the Government and were obliged to live in exile. Although Myanmar had freely ratified the Convention in 1955, the Committee of Experts and this Committee were obliged to conclude that it was not applied and that freedom of association just did not exist in Myanmar. There were no adequate explanations for this horrible situation. The only appropriate answer was swift and concrete action to fully restore trade union rights in Myanmar. In the meantime, he joined the overwhelming call in the Committee for the strongest possible conclusions in this case.

The Workers' member of Greece invited the members of the Committee who were not familiar with this case to consult the reports adopted by this Committee during its 1994, 1995 and 1996 sessions. In those reports, the Committee had noted the commitment of the Government to bring its legislation and practice into conformity with the provisions of the Convention. The Government representative had just made the same statement again this year. The Employers' members were quite right when they stated that everything had been thoroughly discussed regarding this case. The Committee of Experts also noted the absence of any new element. The list of delegates for this Conference revealed an interesting aspect of the trade union situation: the Workers' member appeared in that list in his capacity of controller of oil wells and sites in the petroleum company. Although Myanmar was a third world country, it had an abundance of resources. By forbidding workers and citizens to organize themselves, a minority was only trying to prevent the majority from organizing itself to defend its own interests. The means available to incite a change of attitude by the Government were unfortunately limited to the adoption of a special paragraph. As we move towards the twenty-first century, other means should be envisaged to deal with such a serious case where a regime did not respect the most fundamental human rights.

The Government representative indicated that an interesting dialogue had taken place in the Committee for improvement in the application of the Convention, both in law and in practice. He stressed that the present Government was building the country into a peaceful, modern and developed nation, after having laid down clear-cut political, economic and social objectives, which reflected the aspirations of its citizens and the objective situation of the country. In this context, efforts for national reconsolidation and the emergence of an enduring new State constitution were being met with success as a result of the goodwill of the Government. It was to be recalled that Myanmar was a union of more than 100 ethnic groups, and that the Government, through its goodwill, had been successful in bringing 15 out of 16 armed groups back into the legal fold. This meant that peace reigned in the country after almost half a century of internal conflict that had held back development.

He stressed that the other important task to which his Government was firmly committed to was the establishment of a genuine multi-party democratic system and the enjoyment of the principles of justice, liberty and equality. At this juncture, although there were no trade union organizations in the actual sense of the term, workers' welfare associations in various industries and establishments were functioning on a tripartite basis. There were more than 2,000 associations of this kind. Workers' supervisory committees at the township level also looked after matters relating to industrial relations. These were clear indications that the Government never neglected the well-being and welfare of workers. The labour administration system was as strong as ever in terms of protecting the legislative rights of workers. There was no doubt that trade unions' rights would prevail within the framework of a new constitution. Stability and national reconsolidation were the prerequisites to reach this desired goal in the shortest possible time. His Government had learned from the painful events that had recently occurred in some countries that hasty changes lead to disorder and instability that resulted in suffering for the citizens. Therefore, it was making efforts at gradual and stable progress towards the goal of a genuine democratic society.

The Committee took note of the statements made by the Government representative and of the wide discussion which had taken place. It recalled that this case has been discussed by the Committee on numerous occasions in 1987, 1989, 1993, 1994, 1995 and 1996. In 1995, the Committee put its conclusions in a special paragraph of its general report and, in 1996 it also mentioned this case in a section of its general report highlighting the continued failure to implement, taking into account that for many years and in spite of various appeals, serious discrepancies with the Convention continued to exist in legislation and practice. The Committee could not but deplore the fact that no Government report had been received by the Committee of Experts and expressed its profound regret that serious divergencies between the national legislation and the Convention continued to exist. It also deplored the fact that the Government failed to cooperate. Being greatly concerned with the total absence of progress in the application of the Convention, the Committee once again urged the Government to adopt, as a priority, the measures and mechanisms necessary to guarantee, in legislation and practice, to all workers and employers, without any distinction and any prior authorization, the right to join organizations of their own choosing to protect their interests. The Committee insisted also on the need for those organizations to have the right to affiliate with federations and confederations and with the international organizations, without any interference from the public authorities. The Committee expressed a firm hope that substantial progress in the application of the Convention might be noted in the very near future and urged the Government to supply a detailed report to the Committee of Experts. The Committee decided that its conclusions would figure in a special paragraph of its report and to mention this case among cases of continued failure to implement Convention No. 87.