Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

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

A Government representative indicated that, as a party to the Convention, his Government had reported on the progress made towards its application as much as possible and the information provided had been duly reflected in the reports of the Committee of Experts. However, there had been times when it had not been possible to submit reports due to unavoidable circumstances. He recalled that, following the adoption of the resolution by the ILO against his country concerning Convention No. 29, his Government had decided to disassociate itself from this decision, which it considered unfair and biased. In doing so, it had also decided to disassociate itself from Convention No. 87, in view of the unwarranted allegations made concerning its application. This explained the absence of reports on the Convention in recent years. In view of the political will of his Government, and the good cooperative approach adopted between Myanmar and the ILO, supported by many well-meaning Members of the ILO, it had been possible to register good progress in the application of Convention No. 29. With a view to demonstrating its good intentions, the Government had therefore decided to appear before the Committee, rather than submitting a written response to report on the application of Convention No. 87 from which Myanmar had already disassociated itself, despite the practical difficulties that it was facing. In earlier reports on the application of the Convention, information had been provided on the genuine efforts made and the difficulties experienced. The principal reason was that Myanmar was going through a period of transition from a socialist society to a peaceful modern democratic society. He added that when the new Constitution, which was currently being drafted, was adopted, it would duly reflect the rights of workers, including the rights required under the Convention. In the absence of the new Constitution, it had been endeavoured to protect the rights of the workers with the existing laws. It had been reported that labour laws had been reviewed systematically. For example, the Trade Unions Law of 1926 had been reviewed and redrafted to bring it into conformity with the new political and economic system. Indeed, a team from the ILO had visited the country in 1994 to hold discussions on matters relating to the Convention. This had been followed up by a visit of an ILO official in 1995. Although these visits had not concretized the application of the Convention, they had been very useful and amply demonstrated the political will of the Government. He emphasized that the Government was taking concrete measures to put in place democratic institutions, including the rights of workers to form their own unions, and that the existing machinery contained provisions to protect the rights of workers. The right of association had been granted by the Government and workers' welfare associations had been formed in various industries and establishments. There were also several professional and trade organizations which were functioning well. Indeed, there were now over 2,000 such welfare associations, which included mechanisms to promote and protect the rights and privileges of fellow workers. It might be said that these organizations constituted forerunners of trade unions, which would emerge later in accordance with the new Constitution. Before being able to fully comply with the Convention, he reiterated that the Government would protect the rights and privileges of workers to the fullest extent possible. However, he regretted that it would not be possible to provide the draft text of the revision of the Trades Union Law at the present time, but hoped that he would be able to do so as soon as possible.

The Worker members thanked the Government representative for appearing before the Committee and for his comments. At the outset, they noted that they had been surprised and troubled by his comments, that conveyed anything but an attitude of cooperation. Especially concerning were the representative's comments regarding his Government's repudiation of its treaty obligations under Convention No. 87. This was a very serious development that, if the Worker members had correctly interpreted his statements, cast a serious pall over the Committee's discussion. There was really very little more to say than what had been said repeatedly over the past 20 years. However, with all the attention given to the forced labour issue, the Committee should not overlook the fact that the violation of Convention No. 87 by the Burmese Government was clearly one of the most serious cases reviewed by the Committee over the last decade. This was the 14th time the Committee had discussed the case during the past 20 years, in fact, including ten out of the past 11 years. On seven of the most recent occasions, its conclusions had been set aside in a special paragraph of its report, the last four of these as cases of "continued failure to comply with the Convention". They regretted that this continued to be a record of dubious distinction, a record that would be worsening, given what the Government had told the Committee today. The Worker members reminded the Committee of the record of a government that had repeatedly expressed its "sincere" desire to cooperate with the ILO as the Committee had heard during its special sitting on Burma's application of Convention No. 29 earlier in the week, although it was not what the Committee had heard today. The language used by the Committee of Experts concerning the nature of the Government's cooperation was strong and clear. The Committee of Experts recalled that they had been "commenting upon the continued failure to apply the Convention, both in law and practice, for over 40 years". Regarding the submission of reports, the Committee of Experts "deeply deplored the lack of cooperation on the part of the Government, manifested in particular by a total absence of reports under this Convention over the past years, despite a serious failure in applying its provisions". They also recalled that a direct contacts mission had been abruptly cancelled in 1996 without any explanation whatsoever. The Government representative conveniently ignored this in his comments. Therefore, five years later, the commitment to allow a direct contacts mission was seemingly forgotten. In expressing the Workers' position, he wished to state clearly that there was absolutely no freedom of association inside Burma today, either in law or practice. This had been the situation for many years and any attempt to freely associate was dealt with quickly and in the severest terms. In regard to the law, as the Committee had stated many times in the past, there was no operating trade union law in Burma nor any legal structure to protect freedom of association. The Committee had discussed Decree No. 6/88, issued after the military crackdown of 1988. They did not wish to repeat what was said in previous years. Suffice it to say that this was a broad decree that required all associations and organizations in Burma to be approved by the Ministry of Home and Religious Affairs before being established. This was clearly a violation of Article 2 of the Convention that stated: "Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their choosing without previous authorization". The Committee had also heard once again about plans for a new Constitution. It had heard about this for many years, but noted that a process accepted by the people to draft a new Constitution had never been put in place. The Committee had also heard about plans to draft a new labour law, as it had for many, many years, and once again there appeared to be absolutely no progress. The Government had been asked repeatedly to supply drafts to the ILO and to accept ILO assistance, such as a direct contacts mission, to ensure that it complied fully with Convention No. 87. The requests from the Committee of Experts and the Committee had been repeatedly ignored and the Committee had heard today that such requests would continue to be ignored. In regard to the actual practice inside the country, the Worker members informed the Committee that one of their Worker colleagues, Brother Maung Maung, had been present at the Conference this year and was present at the meeting today. Thirteen years ago, Brother Maung Maung was a leader of the All Burma Mining Union inside Burma. Together with six colleagues, he was dismissed under Decree No. 6/88 for participating in the 1988 pro-democracy demonstrations. He was forced into exile shortly afterwards and helped to establish the Federation of Trade Unions of Burma (FTUB). He was currently its general secretary. With offices in a number of countries, the FTUB had supported the organization of Independent Trade Unions in a number of the ethnic areas and against tremendous odds. The FTUB had even been able to organize workplaces inside the country. Of course these units were considered illegal and dangerous by the regime since the FTUB was banned in Burma as a terrorist organization. Anyone caught belonging to one of these units would be severely punished. The Worker members drew the attention of the Committee once again to two FTUB leaders, Khin Kyaw and Myo Aung Thant, both arrested in 1997. Khin Kyaw, an official of the Seafarers' Union of Burma, was serving a 17-year prison sentence for his trade union activities and Myo Aung Thant, a member of the All Burma Petro-Chemical Corporation Union, was serving a life sentence for relaying information to union and pro-democracy organizations in exile. His wife was also arrested and sentenced to ten years in prison. The Government was not very pleased that Mr. Maung Maung was present at the Conference. It seemed, when one read the official press, that the Government blamed him for, among other things, fabricating the thousands of pages of documentation supplied to the ILO confirming the existence of forced labour. He had often been the target of vicious personal attack in the official media. The Worker members noted that the Government had tried to block Mr. Maung Maung's attendance at this year's Conference by challenging his ICFTU credential claiming, among other things, that his organization was not legally registered in Burma, presumably, under Decree No. 6/88. This challenge had been summarily dismissed in the Credentials Committee. Such cases of chronic non-compliance over many years were extremely frustrating and could expose, unfortunately, the limits of what the Committee could achieve. Nonetheless, as the Worker member of the Netherlands and others had said on a couple of occasions this year, the Committee members were a patient lot and would continue to do whatever was necessary for as long as it might take to compel the Government to do what it clearly had no intention of doing, namely, to comply fully with its treaty obligations under Convention No. 87. Judging by the Government representative's comments, the Committee's patience would continue to be sorely tested. In conclusion, they recalled the comments of the Employer members during the discussion of Swaziland, that it was not within the mandate of the Committee to deal with broader political matters. And of course the Committee typically structured its discussions around the comments made by the Committee of Experts regarding the violation of a particular Convention by a particular country. However, often the Committee could not divorce its discussions from the broader political context existing in the country at issue. Surely, the Employer members were quite aware of this. Regarding Burma, the Commission of Inquiry made quite clear in paragraph 542 of its report that the problem of forced labour would not be addressed until a process of political normalization occurred. It went without saying that the same could be said about freedom of association. Given the total lack of progress over two decades towards bringing law and practice into compliance with Convention No. 87, a fundamental change in the nature of the regime would be necessary before the Committee would see any real progress. As noted during the special sitting on Burma's application of Convention No. 29, the Worker members sincerely hoped that the current talks between the regime and Aung San Suu Kyi would result in a political normalization, a transfer of power back to the elected civilian leaders and a return to the rule of law. They considered that a release of a few National League of Democracy (NLD) leaders from imprisonment during the past few days was a good sign, and hoped that these releases would result in the reopening of NLD offices around the country so that the current secret talks could develop into a full-blown dialogue. They did not know, however, what the outcome of the talks would be. At this point, they could only hope, and for the Workers, their hopes had been dashed a bit by the comments from the Government representative repudiating freedom of association. If these talks failed, history had shown that it was only a matter of time before workers would drop their tools, leave their workplaces and farms, and exercise their right to strike in defence of their most basic human rights. This was precisely what had happened in 1988 and was only put down by massive military force. In closing, they wished the Committee to know that if this ever happened again, the Workers would stand in solidarity with their sisters and brothers in Burma, as they did in 1988 and as they did with the workers of Poland, South Africa, Chile and elsewhere. Given the context of the discussions this year, they hoped and expected that the Employers, too, would rally to the support of the Burmese people in their greatest time of need.

The Employer members recalled that the Committee of Experts had been commenting on this case for over 40 years. The Conference Committee had also discussed this matter repeatedly. In fact, the Conference Committee had placed its conclusions regarding Myanmar in a special paragraph on at least seven occasions. The crux of the problem was that workers in Myanmar had no right to establish trade union organizations without previous authorization. This was a clear violation of the right of freedom of association contained in the Convention. In the past, the Government had indicated that it was in the process of drafting a new Constitution and reforming its labour laws. Today, the Government representative indicated Myanmar's intent to move away from the Convention because it considered that it had been unfairly treated by the Conference Committee. This was the reason why the Government had not submitted a report to the Committee of Experts. If this statement was intended to be a denunciation of the Convention, then it was in contradiction with the Government representative's statements regarding his Government's cooperative relationship with the ILO. The Government representative had referred to the existence of more than 2,000 social welfare associations which were, according to his definition, precursor organizations to trade unions. It was clear that these organizations were not trade unions. This statement created the impression that the Government feared the inhabitants of its own country, since it gave them no freedom to freely establish organizations to further and defend their interests. It was evident that the right of freedom of association did not exist in Myanmar either in law or practice. In addition, the Government representative had clearly manifested his Government's unwillingness to cooperate with the Committee. Under these circumstances, the Employer members had no alternative but to simply acknowledge this situation. The Government had taken a political position in this matter. However, the ILO and the Conference Committee could not influence this political decision. Their mandate was to address the consequences of this political decision, namely the manner in which the Government complied with its obligations arising out of its ratification of the Convention. This case was regrettable since governments normally cooperated with the Committee and made efforts to bring their legislation and practice into conformity with the provisions of the Convention. However, this Government had clearly shown its lack of will to take the necessary measures to guarantee fully freedom of association in the country. Accordingly, this regrettable situation of the Government's continued failure to implement the Convention should be reflected in the Committee's conclusions.

The Worker member of Pakistan agreed fully with the statements made by the Employer and Worker members in this case. He recalled that Myanmar had repeatedly assured the Committee that it intended to revise its labour laws. In fact, the Committee had been hearing the same promises since 1980. Referring to the Government representative's statements concerning social welfare associations, he considered that there was a clear distinction between trade unions and these associations. He also pointed out that, regardless of the constitutional framework of a country, when a member State ratified a Convention, it undertook to bring its laws into conformity with that instrument pursuant to basic principles of international law. Therefore, the Government's excuse that its laws would be amended in the future was unacceptable. Moreover, the Government had repeated the same excuse for the past 20 years, but had taken no action in this regard. He recalled that the Conference Committee had repeatedly recognized the gravity of the situation in Myanmar and had repeatedly urged the Government to amend its legislation to provide for freedom of association. The Committee had stated this in a special paragraph in 1995, 1996, 1997 and 1998. The Conference Committee once again deplored the Government's lack of cooperation, manifested by its lack of response to the Committee of Experts. He pointed out that the principle of freedom of association was the life blood of the ILO and that, for this reason, the principle of freedom of association was set forth in the Preamble to the 1919 ILO Constitution as well as in the 1998 Declaration on Fundamental Principles and Rights at Work. He deplored and condemned the situation in Myanmar and urged the Government to take special measures to bring its law into conformity with the provisions of both Conventions Nos. 29 and 87. He expressed the hope that the situation for working men and women in Myanmar would improve.

The Worker member of Senegal stated that the indifference of the Burmese Government vis-à-vis the Committee was clear. He recalled that the mandate of the Committee of Experts consisted in monitoring the application by member States of Conventions they had ratified. The case of the application of Convention No. 87 by Myanmar was a recurrent item, regularly registered on the agenda of the Committee of Experts' sessions. He noted the declaration made by the Government representative according to which he indicated that a new Constitution and new labour legislation were under discussion. In that context, he recalled that it was not the first time that the Government made such announcements which were not followed up by action. According to the information made available to the Committee of Experts, the violations of the Convention continued to be made on a larger scale, and the right of workers of Burma to establish trade union organizations without previous authorization, which constituted one of the basic principles specified in the Convention, remained an objective to be attained. The obstacles encountered were numerous, and constituted yet another impediment in the application of the very essence of the fundamental Conventions of the ILO. The preservation of the public social order could not adapt itself to such violations. He reiterated the need to reaffirm the position of Convention No. 87 in the legal system of Myanmar. The non-observance by the country of the provisions of Convention No. 87 topped a long list of violations. He considered that the examination of such a case for a number of years by the Committee without any positive action taken by the Government, dealt a blow to its relations with the Committee. A State that ratified a Convention was obligated to apply its provisions including the amendment of relevant legislation, if necessary, to repeal or modify the provisions contrary to the ratified Conventions. In the case under examination, the Government had promised to adopt legislation which had not seen the light of day. He concluded by reiterating that the "warning signal" which lay in inscribing a special paragraph on the case in the conclusions of the Committee had not yielded any results so far. The reason was simply due to the deliberate choice made by the Government to operate outside the system. He therefore considered that the Government of the country in question should be condemned with firmness. He concluded by expressing his appreciation of the "knights of a just cause" represented by the trade unionists of Myanmar who were participating in the deliberations of the Committee, in spite of the difficulties encountered.

The Government member of Norway, speaking on behalf of the Governments of Denmark, Finland, Iceland, Norway and Sweden, expressed the regret of the Nordic countries that the Government had not submitted the required reports to the Committee of Experts. In this context, he recalled that the Committee of Experts had been commenting upon the Government's continued failure to implement Convention No. 87 in law and practice for over 40 years. The Nordic Governments urged Myanmar to adopt the necessary measures to ensure the right of workers to establish, without previous authorization, and to join - subject only to the rules of the organizations concerned - unions, federations and confederations of their own choosing, for the furtherance and defence of their interests. The Nordic Governments requested that Myanmar adopt the necessary measures to guarantee fully the right to organize and requested it to supply with its next report a copy of the most recent draft revision of the Trade Unions Law, so that the ILO might assess its conformity with the provisions of the Convention.

The Government member of the United States noted that the Worker and Employer members had outlined this case well, and he concurred with their views in this matter. He wished to point out that this was a serious case and a long-standing one. The Government representative's intervention had also been extremely disappointing. It was unfortunate that, for 40 years, the Government had failed to take any action to guarantee the rights of its workers to establish and join trade unions. While the Government had repeatedly promised that new legislation and a new Constitution were being drafted, no evidence of this had been presented to the Conference Committee. The Government's conduct demonstrated a total disregard for its international obligations arising from its ratification of Convention No. 87, as well as for the rights of its workers. The situation in Myanmar constituted a clear violation of a fundamental ILO Convention and his Government concurred with the Committee of Experts that the situation was totally unacceptable.

The Government representative of Myanmar stated that his delegation had listened attentively to the statements made by the Employer and Worker members, as well as by other speakers. His delegation had explained to the Committee the efforts made by his Government and the practical difficulties that it had experienced in the application of the Convention. At this point, he had no more to add, since he had already mentioned the revision of the Constitution of Myanmar and the role played by the various social welfare associations in protecting workers. These were the steps taken by the Government to comply with the Convention. He stressed that his delegation had appeared before the Conference Committee to demonstrate his Government's political will to cooperate with the ILO, as well as to hear the concerns of the Committee. He considered that the discussion had been useful. He had listened carefully to the comments made and his Government would take these into account in the future. However, he stressed his Government's strong objection to the reference made to the Free Trade Union of Burma by the Worker members.

The Worker members protested against the Government representative's statement regarding the Free Trade Union of Burma, an organization with which the Workers' group had a long-standing relationship. They defended its integrity and credibility and looked forward to the day that the FTUB would be allowed to operate in Burma and represent those workers that chose it to represent them. The Worker members concurred with the sadness expressed by the Employer members in connection with Burma's continued non-compliance and hoped that their sadness and anger would be reflected in the Committee's conclusions. They assured the Government that the Committee would continue to discuss this case until such time as the Government had effected the requested changes.

The Employer members stated that the Conference Committee's work had begun with the case of forced labour in Myanmar and ended with Myanmar's failure to apply the provisions of Convention No. 87. The Employer members had not heard anything new in the concluding statements of the Government representative. They recalled the Government's statement that it would address the issue of freedom of association in the future and considered that this demonstrated the Government's lack of political will to take the measures necessary to guarantee the right of freedom of association in Myanmar. At this time, this right did not exist in either law or practice in the country. They indicated that the deplorable situation of Myanmar's continued failure to implement the Convention should be reflected clearly in the Conference Committee's conclusions.

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 on many occasions during the last decade. The Committee shared the concern expressed by the Committee of Experts that the Government failed to send a report and found itself obliged once again to deeply deplore the total absence of cooperation on the part of the Government in this regard. In these circumstances, the Committee could not but once again continue to deplore the fact that no progress had been made towards the application of this fundamental Convention, despite the fact that very serious violations had already been noted over 40 years ago. The Committee was also once again obliged to express its profound regret for the persistence of serious discrepancies between the national legislation and practice and the provisions of the Convention. These discrepancies concerned the basic principles of the Convention. Extremely concerned over the total absence of progress in the application of this Convention, the Committee once again strongly insisted that the Government adopt, as a matter of urgency, the measures and mechanisms necessary to guarantee, in legislation and in practice, to all workers and employers, the right to join organizations of their own choosing, without previous authorization, and the right of these organizations to affiliate with federations, confederations and international organizations, without interference from the public authorities. It also urged the Government to supply to the Committee of Experts for examination this year any relevant draft legislation, as well as a detailed report on the concrete measures taken to ensure fuller conformity with the Convention. 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.