Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

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

A Government representative of Myanmar stated that since the discussion of this matter before the Committee in 1998, the Ministry of Labour had provided a draft Trade Union Law to the Central Laws Scrutiny Body. After legal review by that Body, the draft Trade Union Law was sent back to the Ministry of Labour for consideration by its Law Review Committee, and for inter-departmental circle discussions that took into account the comments of the Central Laws Scrutiny Body. He emphasized that in order to properly draft the Trade Union Law, it was essential to discuss its provisions with employers' and workers' organizations during the year 1998-99, namely:

-- from the Employers' side: Union of Myanmar Federation of Commerce and Industry;

-- from the Workers' side: Workers' Welfare Association (numbering 2,242): Myanmar Cultural Association, Union of Myanmar Films and Musical Association, Myanmar Literature Workers' Association, Myanmar Construction Workers' Central Association, Myanmar Video Producers' Association, Myanmar Women Entrepreneurs' Association, Myanmar Maternal and Child Welfare Association, Myanmar Medical Association, Myanmar Indigenous Medical Association, Artists' and Sculptors' Association, Myanmar Nurses' Association, Transport Workers' Association.

For this reason, discussions were held with a considerable number of such organizations, which were named by the Government representative. Included among these organizations were employers' associations (separate entities that were independent of employers), the Federation of Commercial and Industrial Employers, and many workers' organizations at every level. These discussions were held for the benefit of such organizations and the various existing structures of workers. In taking into account their input on the draft Trade Union Law, it was also necessary for the Ministry of Labour to consider that at the time of the discussions there was a financial crisis in the region that was having an impact upon foreign investors. Moreover, it was also important when drafting the new Law to consider both the changes that were taking place as a result of the country's decision in 1998 to move toward a market economy system, and the ongoing preparation of a new State Constitution. He stressed that the greater the amount of discussions and input regarding the draft Law, the better it would be drafted. The Government representative proceeded to emphasize that there could be no mechanical approach to preparation of new legislation, as each country had its own situation and circumstances, and that an approach that was effective in one country might not be appropriate for another country. In this regard, he quoted the comments of the Director-General to the Plenary of the International Labour Conference on 1 June 1999 that: "We must understand the specific context of regions and subregions as well as the specific circumstances of the Eastern and Central European countries in transition and countries that are going through a crisis because of the impact of the international financial system, or the forces of nature. It is essential to support a retuned ILO that can be sensitive to differences and can respond with subtleness to the different ways in which the same problem can manifest itself in different societies. It seems to me absolutely indispensable to develop this institutional capacity. I believe it is important to foster a sensitivity about the culture of development. You cannot really understand problems of development so long as you have a somewhat mechanical approach and solutions cannot be proposed simply because they work in other countries. We need a richness of outlook, an ability to differentiate, to understand the specific situations to respond to the real problems and propose new solutions." The Government representative stressed once again that no two countries were alike and that each should be assessed based on its own situation and facts. In his view the Committee should therefore be sensitive to and take into account the different cultures and levels of development of member States. In conclusion, he stated that progress had indeed taken place since the examination of this matter by the Committee in 1998, in view of the drafting of the new State Constitution and of the Trade Union Law, and the extensive discussions regarding its content, and that this progress should be taken into account by the Committee.

The Worker members noted that in spite of the rather brief comments made by the Committee of Experts this year, the repression of freedom of association in Myanmar was one of the most long-standing and serious cases of non-compliance with the Convention before the Committee. Given the complete lack of progress over the years, there was really very little more for the Committee of Experts to say. The seriousness of the case, however, was evidenced by the fact that this would be the 13th time in the past 18 years that the Committee discussed the case and the ninth year in succession. On six occasions, the Committee had placed its conclusions in a special paragraph of its report and, for the past three years, the Committee had cited Myanmar as a special case of continued failure to comply with the Convention. This was quite a dubious record for a Government that continually claimed to be cooperating with the ILO as heard once again today. The Worker member recalled that a direct contacts mission was abruptly cancelled in 1996 without any explanation from the Government. For the past three years, there did not appear to be any momentum behind rescheduling this mission; the Worker member asked the Government representative whether he was able to commit his Government to rescheduling this direct contacts mission for later this year. Such a commitment would have more meaning than the mere issuing of an order in relating to Convention No. 29 just before the opening of the ILO Conference.

The speaker stated that for a number of years, the Government had failed even to submit reports, as noted with profound regret by the Committee of Experts last year. This year, the Government had finally submitted a report reminding the Committee of Experts that a new Constitution was being drafted as well as a revised labour code. Only when this process was completed and a new labour code enacted -- the Government seemed to be saying -- could it demonstrate in practice its new-found respect for freedom of association. The Committee of Experts had noted that the drafting of new labour legislation and a new Constitution had now been in progress for many years, yet "no specific progress or developments have been communicated ... in this regard". The Government representative did not mention any timetable and the Worker members asked the representative whether his Government was prepared to indicate when this task would be completed. Also, it would be extremely helpful if the Government would submit draft texts to the Committee of Experts before the end of the year.

For Workers members, there did not exist any operating trade union law in Myanmar nor any legal structure to protect freedom of association. As noted last year, there was a Decree issued in 1988 by the military called the Law on the Formation of Associations and Organizations (No. 6/88) under which such associations and organizations had to obtain permission from the Ministry of Home and Religious Affairs before being established. This Law stated that the associations and other organizations would be disbanded if they attempted, incited, encouraged or assisted in undermining law and order, local peace and security and the smooth and secure operations of transport and communications. The Worker members wondered whether this was one of the laws now under revision and, if so, whether the Government could provide information about its revision to the Committee of Experts.

The Worker members informed the Committee that the General Secretary of the Federation of Trade Unions of Burma (FTUB), Mr. Maung Maung, was in the Committee's room. It was precisely Law No. 6/88 which was used 11 years ago by the then State Law and Order Restoration Council (SLORC) to fire Mr. Maung Maung and six other members of the All Burma Mining Union. The Worker members observed that the Government representative continued to remind the Committee that enacting new legislation could take time. On this point, the Worker members agreed especially when the legislature that was elected ten years ago had never been allowed to convene. Many elected Members of Parliament had been arrested repeatedly over the years. The Worker members recalled that the Government representative characterized the State Peace and Development Council (SPDC) -- the successor to the SLORC, or in other words the ruling military junta -- as a legislative body. How could a military junta transform itself into a legislative body? More importantly, how much longer would the Government need to revise its laws in order to put it into conformity with the Convention?

The Worker members considered that a change in law -- if it ever were to take place let alone in conformity with the Convention -- was only a first step towards protecting freedom of association in law and in practice. There were no independent unions in Myanmar today and any attempt to organize one was dealt with ruthlessly. The courageous few who had tried to exercise their rights under the Convention did so at great personal risk. As was mentioned earlier, representatives of the FTUB still languished in prison serving long prison terms. They were considered terrorists by the regime. The Worker members observed that the Myanmar Worker delegate was listed as an oilfields and worksites supervisor for the Myanmar Oil and Gas Enterprise. He was not even identified with any worker association or organization. In fact, it was precisely this state enterprise which had been associated for many years with the alleged use of forced labour to build the notorious Yadanar gas pipeline.

In conclusion, the Worker members noted that the Committee was once again asked to accept in good faith the Government's promises that, after 40 years, changes were coming. However, the Committee should not be worn down by the lack of any real progress for yet another year, as disappointing as this was. Rather the regime's continuing defiance should make the Committee more resolute in insisting in the strongest terms possible once again that Myanmar live up to its treaty obligations under the Convention. This was not a matter of singling out or picking on Myanmar as stated by the Government on a number of occasions. The Government should be reassured that the Committee would drop this case from the list the minute its obligations under the Convention were met. But until this happened, the Committee would continue to bring up the matter, year after year for another 40 years if necessary.

The Employer members thanked the Government for the information provided to this Committee. They considered that the context of this particular case was important. They recalled that 44 years ago the Government of Myanmar had ratified Convention No. 87 and that its failure today to enact legislation on freedom of association was a fundamental violation of its international obligations. There was simply no right to organize in Myanmar and over the years, the Government had showed utter disdain for the supervisory machinery of the ILO as well as for this Committee. Since 1980, this case had been discussed over a dozen times and there had been numerous special paragraphs as well as continued failure to implement the Convention.

They considered that there was a connection between this case and the case concerning the Forced Labour Convention, 1930 (No. 29). Indeed, if freedom of association existed in the country, a vibrant trade union movement would be fighting to eliminate forced labour. Furthermore, there was an absence of real legislation on the right to organize and there was no way to evaluate the true nature of organizations. They asked the question of what was the timetable of the Government in order to address these problems. In the view of 44 years of failing to implement the Convention, they expressed their scepticism with regard to the Government's commitment. This scepticism was reinforced by the Government's abstention on the Declaration.

The Worker member of Japan expressed his support for the views of the Worker members reiterating that this case was one of the worst cases examined by the Committee of Experts. The Committee had been commenting on violations by Myanmar in law and in practice of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), for 40 years focusing on violations in practice, the speaker asked the Government representative to provide information regarding the situation with respect to two labour union leaders, Mr. Myo Aung Thant and Mr. U Khin Kyan. He inquired whether they had been released from prison and were able to participate in trade union activities. Furthermore, according to information provided by Amnesty International, Mr. Than Naing had been arrested in 1977 following a demonstration, and he was sentenced to five years' imprisonment. After his release in 1982, he was not reinstated in his position as a government official, but became a shopowner and a writer. Following social unrest in 1988 Mr. Than Naing had been arrested again and without a proper trial he was sentenced to life imprisonment. The Government of Myanmar was requested to provide information whether Mr. Than Naing had been released from prison in 1998 in application of the law of 1992, pursuant to which all sentences for life imprisonment were commuted to ten years imprisonment. The speaker further requested the Government to explain why no trade union delegate had been accredited to the Conference this year. In his view the person designated as a Workers' delegate did not seem to be affiliated to a trade union. Finally, the speaker asked the Government to provide a list of the trade unions that were authorized to operate freely in Myanmar and to explain why the Federation of Trade Unions of Burma (FTUB) was compelled to operate outside the country.

The Worker member of South Africa spoke in full support of the statements made by the Worker members. He pointed out that, for the past ten years, the Government representative of Myanmar had stated that Myanmar was in the process of revising its legislation, but that no progress had been made in this regard. The Government representative was making the same statements given ten years ago. It was an "off the shelf" speech upon which the Government representative of Myanmar made no substantive changes. There were no legally functioning trade unions in Myanmar and no legal structure to protect trade unions. There was no legal framework to protect collective negotiation or to protect workers from acts of anti-union discrimination. The Federation of Trade Unions of Burma (FTUB) was forced to operate outside of the country. He recalled that the FTUB was founded in 1991 by trade unionists who were subsequently fired from their jobs by the military regime. The FTUB coordinated its activities with the banned National League for Democracy, which won the 1990 elections, but was prevented from taking office by the military regime, who nullified the election results. The FTUB remained under the constant surveillance of government police and military intelligence agents. He drew the Committee's attention to the fact that Myanmar had been discussed year after year, but no progress had been made. Instead, the Government had continued to make promises and denials and to violate the provisions of the Convention. Referring to the earlier discussions held in the Committee on the use of forced labour in Myanmar, he indicated his belief that this issue bore a direct relationship to the Convention.

He cited a report of the International Confederation of Free Trade Unions (ICFTU), referring to the arrest and detention of certain trade unionists who remain imprisoned. In light of the continued violations of the Convention, the Committee should impose upon Myanmar the severest sanctions possible under the ILO Constitution.

The Worker member of India stated that the description given by the Government representative of Myanmar of the situation in the country was not borne out by reports received from travellers between India and Myanmar. His organization had repeatedly attempted to establish contact with trade unions in Myanmar, without success. If there were free trade unions operating in Myanmar, why was it impossible to establish contact with them? Moreover, none of the trade unions in his country had been able to establish contact with any Burmese trade unions. He considered that this raised a question which the Government of Myanmar must answer. He also pointed out that Myanmar could draft new legislation, but the question remained whether such a law would ensure a true right to organize and freedom of association for the working class. He underscored the need to ensure that trade unions are able to operate openly in the country. He requested the Government representative of Myanmar to supply a list of operating trade unions so that India could establish contact with them. The Government of Myanmar should adopt laws allowing the right to organize and guaranteeing the right of association with international organizations. He called upon the Myanmar Government to respect and restore the long tradition of democracy in Myanmar and urged it to accept the recommendations of the Committee in regard to the Convention.

The Government member of the United Kingdom declared that he was more disappointed than surprised that this Committee should again be discussing Burma's continued failure to comply with this fundamental Convention. Once again, this reflected the regime's disregard for the ILO and for the welfare of the people of Burma. He fully supported the Committee of Experts' call for the Burmese authorities to take immediate steps to guarantee genuine freedom of association without further delay. In light of the special paragraph and of the discussion on Convention No. 29, he trusted that this Committee would send the strongest possible signal to the Burmese delegation that this Committee would no longer tolerate their refusal to honour their international human rights obligations.

The Government representative explained that the associations previously mentioned were quasi-trade union associations. They were registered with the Ministry of Home Affairs, and were independent of the government structure, operating independently of the Government. In response to the request from the Worker members that the Government provide a timetable for completion of the revision of Myanmar's legislation, he indicated that it was necessary to take account of the country's circumstances, as well as of the discussions being held in the context of the revisions. The Government would be reporting regarding progress made in amending its Constitution and laws, as stated in its last report to the Committee of Experts, but its ability to do so was dependent upon these circumstances. He, therefore, asked that the matter be given time and noted that the draft legislation would become law in due course. The copy of the draft legislation cannot be given as all draft laws are under the Official Secrets Act (India Act XIX, 1923.) (2nd April, 1923.), substituted by the Union of Burma (Adaptation of Laws) Order, 1948, which was an Indian Act given under adoption by Myanmar when it received its independence. Further, responding to comments made by the Worker member of Japan regarding actions taken by the Government against certain persons, including those persons not allowed to re-enter the civil service, he stated that those actions had been taken because those persons had violated criminal laws, such as by the commission of terrorist acts. No terrorist will be condoned under any system of law in any country, even in Japan. Myanmar does not condone such action also. Civil service in all countries have their own regulation also. In Myanmar, like in most countries, when a civil servant commit a crime and sentenced, he is not allowed to re-enter the civil service. The draft law was being prepared, but its contents could not be provided to the Committee of Experts, because draft laws are Official Secrets under the law already explained. Prior to its submission to the Myanmar legislature, the legislation constituted an official secret; however, the Government would be glad to provide a copy of the new law at the appropriate time. In response to the comments of the Worker member of India, he indicated that his Government had full information regarding the person detained, and that the Government was ready to provide this information. He said that there has been a good relationship between India and Myanmar. There are even businessmen to invest in Myanmar. Certain business activities are going on. At the same time, the Worker member of India should write and contact the various employers' and workers' associations that we have mentioned. Regarding the credentials of the Workers' representative from Myanmar, reply has already been made to the Credentials Committee and he quoted letter No. 223/3-20/26 dated 7 June 1999, addressed to the Chairman, and said reference is made in the said letter. He recalled that the ILO was now persuading countries to ratify a number of fundamental Conventions that they had not previously ratified. In this positive atmospshere, it would be unfortunate if one country, such as Myanmar, were singled out unfairly. He cautioned that this would signal a warning to other countries, dissuading them against ratifying additional Conventions.

The Worker and the Employer members requested that this case be mentioned in a special paragraph.

The Committee noted the statement made by the Government representative and the detailed discussion which took place thereafter. It recalled that this case had been discussed by the Committee consistently for over a decade. The Committee could not help but once again deplore the fact that no progress had been made toward the application of this fundamental Convention, despite the repeated calls upon the Government made by the present Committee and the Committee of Experts. The Committee was also once again obliged to express its profound regret that serious divergences between the national legislation and practice, on the one hand, and the provisions of the Convention, on the other hand, continued to exist. It could not help but once again deplore the absence of genuine cooperation on the part of the Government in this regard. Extremely concerned over the total absence of progress in the application of this Convention, the Committee once again strongly urged the Government to adopt, as a matter of urgency, the measures and mechanisms necessary to guarantee, in legislation and in practice, to all workers and employers, without distinction whatsoever and without previous authorization, the right to join organizations of their own choosing, to protect their occupational interests and the right to affiliate with federations, confederations and international organizations, without interference from the public authorities. The Committee strongly urged the Government to make, without delay, substantial progress in the application of the Convention, in law and in practice, and urged the Government to supply a detailed report to the Committee of Experts this year.

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