Individual Case (CAS) - Discussion: 1998, Publication: 86th ILC session (1998)

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

The Government has supplied the following information:

This report is to fulfil the Government's reporting obligation in relation to the above Convention for the past years ending 1 September 1997. With regard to the above Convention, the Government informs the Committee of Experts that the Draft Trade Union Laws have been reviewed at several sittings of the Central Laws Scrutiny Body. Further action will be taken after the draft legislation has been returned to the Ministry of Labour from the Central Body along with its views and recommendations. The existing labour law reviewing process should be totally demarcated from that of the Socialist era which took place from 1962 to 1988.

In addition, a Government representative drew the attention of the Committee to the progress report submitted by his delegation at the 85th Session of the Conference. He said that, in compliance with the remarks and recommendations made by the Central Laws Scrutiny Body on the draft trade union law submitted to it by the Department of Labour, the Labour Law Reviewing Committee of the Ministry of Labour had made the necessary modifications and redrafting over the past year. Moreover, as recommended by the Central Laws Scrutiny Body, the Department of Labour had extensively sought views and comments on the redrafted trade union law from the concerned parties, which included workers' welfare associations and employers' organizations, such as the Union of Myanmar Chamber of Commerce and Industry, and various representatives from public and private enterprises. The numerous technical points in the redrafted version of the trade union law evidently required thorough consideration by the concerned parties. The replies which had been received from some of these organizations had been compiled and collated. When replies had been received from all the organizations, a revised draft would be submitted by the Labour Law Reviewing Committee to the Central Laws Scrutiny Body. The review and redrafting process was being undertaken in anticipation of the emergence of a new state Constitution which would ensure the protection of workers through the enactment of the necessary labour laws. However, he warned that the process of adopting legislation took time, especially in the case of labour laws, which required tripartite consultations. He emphasized in that connection that the workers in the country were currently well protected by the existing laws, which had been enacted several decades ago but still reflected the provisions of the ILO Conventions ratified by the country. Although, as pointed out by the Committee of Experts, there existed a few discrepancies between the Convention and national laws, these could be rectified in the new labour laws. With regard to the right to freedom of association, there were more than 2,000 workers' welfare associations in the country, which were grass-roots level associations that looked after the general well-being and interests of the workers. In conclusion, he stated that the efforts to review and redraft existing labour laws were directed towards the observance of the provisions of the Conventions which had been ratified by the country.

The Workers' members noted with sadness that, in taking up this case once again on the 50th anniversary of the Convention, it dramatically illustrated the distance that still needed to be travelled in many countries throughout the world for freedom of association to be truly respected in both law and practice. It was hard to believe that the Committee had felt it necessary to review Myanmar's failure to apply the Convention on 12 occasions in the last 17 years, and now for the eighth year in succession. On five occasions, the Committee had been compelled to place its conclusions in a special paragraph of its report. Moreover, in 1996 and 1997, the Committee had cited Myanmar's continued failure to apply the Convention in a special paragraph. It should not be forgotten that Myanmar had also merited three other special paragraphs since 1982 for failure to apply other ratified Conventions, that an article 24 representation on forced labour had been accepted by the Governing Body in 1993, followed by the establishment of a Commission of Inquiry in 1997 to investigate an article 26 complaint concerning the widespread use of forced labour by Myanmar. This very dubious record set Myanmar apart as one of the most long-standing, widespread and egregious violators of basic workers' rights and international labour standards in the history of the ILO. Furthermore, the Government continued to show its utter disdain for the application of the standards machinery by its refusal to submit reports to the Committee of Experts, despite repeated requests. The Committee of Experts had expressed its "profound regret" at not having received a single report from the Government for over three years. In addition, a direct contacts mission, which was to have taken place in May 1996, had been cancelled by the Government at the last minute with no real explanation as to why. The Government had expressed no interest whatsoever in rescheduling the mission. The same lack of cooperation had been exhibited by the Government earlier this year when it had refused to allow the Commission of Inquiry to enter the country to investigate the allegations of forced labour. Finally, Myanmar's continuing disdain for the proceedings of the supervisory bodies was in evidence once again today, given the total lack of sincerity and substance contained in the Government representative's remarks, which amounted to no more than a repetition of what it had said in the past.

The Committee of Experts had noted that for the past 40 years it had been urging the Government to take the necessary measures to ensure the right of workers to establish, without previous authorization, and join first-level unions, federations and confederations of their own choosing for the furtherance and defence of their own interests, and to ensure that such union structures had the right to affiliate to international organizations. However, all this had been to no avail. The fact remained that, notwithstanding the comments of the Government representative, there was no trade union law in Myanmar and no legal structure whatsoever to protect freedom of association. Although the adoption of the necessary legislation evidently took time, as pointed out by the Government representative, no progress in this respect had been made for the past 40 years. The military junta had issued a decree in 1988, shortly after it had massacred several thousands of its own citizens, called the Law on the Formation of Associations and Organizations, under which unions had to obtain permission from the Ministry of Home and Religious Affairs before they could be established. The Law stated that the associations and other organizations that it covered would be disbanded if they attempted, incited, encouraged or assisted in undermining the prevalence of law and order, local peace and security, and the smooth and secure operations of transport and communications. The consequence for workers in the country was the total lack of any legal protection concerning freedom of association. Indeed, in June 1997, within days of the examination of the case by this Committee, two members of the Executive Committee of the Federation of Trade Unions -- Burma, namely Myo Aung Thant and Khin Kyaw, had been arrested in the country, both of whom had been designated prisoners of conscience by Amnesty International. Myo Aung Thant, a member of the All Burma Petro-Chemical Corporation Union, formed during the 1988 pro-democracy movement, had been arrested at the airport in Rangoon, along with his wife and children. Amnesty International reported that it was not known if they were still in custody. Myo Aung Thant had been charged with high treason among other things. At a secret trial conducted last August, he had been convicted to transportation for life, plus ten years, three years of which was for violating the Law on the Formation of Associations and Organizations. Another trade unionist, Khin Kyaw, from the underground Seamen's Union of Burma, had not been seen since his arrest a year ago by his family or his lawyer, and his whereabouts were unknown. Amnesty International had written that it feared for his safety given the harsh conditions and high incidence of torture in Myanmar's prisons. The Workers' members called on the Government representative to provide the Committee with an account of the situation of Khin Kyaw. For many years, the Workers' members had been raising the matter of the seafarers of Myanmar and had been asking 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 would no longer be harassed and intimidated if they exercised their rights in accordance with the Convention. The response of the Government could be seen in the arrest of Khin Kyaw.

There were reports of growing worker unrest throughout the country, due to the increasing economic hardship and the absolute refusal of the Government to allow workers to organize unions, rather than workers' welfare associations, as mentioned by the Government representative. Attempts to organize unions had been made at a number of workplaces and the Workers' members had been shown a list of workers who had been dismissed for their efforts. However, this information could not be shared with the Committee out of concern for the safety of these courageous workers. In conclusion, the Workers' members warned the Government that changing the name of the military junta that ran the country from the State Law and Order Restoration Council to the State Peace and Development Council, hiring expensive public relations firms to improve its international image or retaining well-known lobbyists in Washington and elsewhere in an attempt to influence policy towards Myanmar would not end the country's pariah status as one of the world's worst abusers of human and workers' rights. What was needed was profound change without any further delay which recognized the will of the Burmese people, as expressed in the 1990 parliamentary elections, and which respected once and for all the right of workers to organize into unions of their own choosing in compliance with the Convention. Anything less would be simply unacceptable and the Workers' members urged the Committee, as it had in the past, to express this view in the strongest possible terms.

The Employers' members agreed with the Workers' members in noting the absence of any progress in a case which had already been discussed several times, had been the object of a special paragraph in the report of the Committee on several occasions and had been cited last year as a case of continued failure to apply the Convention. The facts remained unchanged and the Government's reporting had become increasingly meaningless, even when it provided a report which it had not done for the past three years. The Government had very clearly demonstrated its refusal to cooperate with the supervisory bodies. It had, moreover, cancelled a direct contacts mission which had been planned. The situation remained unchanged in law and in practice. The cases cited by the Workers' members amply demonstrated that the Government was not prepared to allow workers to join organizations of their own choosing or to let organizations affiliate to national or international federations. When reminded of the obligations set forth in the Convention, the Government responded in bad faith. The Government representative had referred to a draft law which it said had been distributed to many bodies for comments. It had already claimed many years ago that a draft law would correct the situation; such a statement now was very hard to believe. The Committee should therefore note once again that the situation remained very far from complying with the requirements of the Convention and regretted that it could not note any progress. It should once again require that measures be finally taken by the Government to honour its commitments.

The Government member of the United Kingdom, also speaking on behalf of the Government members of Austria, Canada, Denmark, Finland, Germany, Iceland, Italy, Netherlands, Norway, Portugal and Sweden, expressed his dissatisfaction with the written information submitted by the Government. The submission of such an inadequate document at such a late stage could only be seen as an attempt to frustrate the work of both the Committee of Experts and the Conference Committee and to delay a detailed and up-to-date examination of the case. This behaviour reflected the flagrant disregard of the Government for its international obligations and was one more symptom of the lack of democratic reform and respect for human rights in the country. He noted in this respect the recent resolution adopted by consensus in the United Nations Commission on Human Rights (resolution 1998/63) which highlighted the widespread use of forced and child labour in the country. He therefore urged the ruling State Peace and Development Council to cooperate fully in allowing the ILO access to the country to monitor and advise on the labour situation. He strongly supported the conclusion of the Committee of Experts that the national authorities should take immediate steps to guarantee genuine freedom of association. Bearing in mind the special paragraph adopted by the Committee on the case last year, he asked the Government representative to account for his Government's continued failure to implement this fundamental Convention.

The Worker member of France regretted that it was possible to be brief on the subject of freedom of association in Myanmar since, as in the case of all other basic freedoms, it did not exist. Workers were extremely concerned at the systematic repression of the military regime. Its methods included forced labour, imprisonment, torture and disappearances. Under such circumstances, the Government representative referred to the consultations which had been taking place for one-and-a-half years for the elaboration of a new Constitution. However, those being consulted had been designated by the Government itself. Those elected in the 1990 elections were the only legitimate representatives with the right to adopt a new Constitution and the argument advanced by the military regime that a legislative process had been launched with a view to the observance of the ratified Conventions fooled no one. The statement of the Government representative had been vague and contained no new information. In view of the practices of the authorities, as described in the report of the Committee of Experts, these were not in good faith. Faced with massive and systematic violations of human rights and a non-responsive Government, it was undoubtedly necessary to look beyond the law and express solidarity with the peaceful and courageous people of the country, and help them recover the freedom which had been taken from them and put an end to their suffering.

The Worker member of Italy emphasized that no change, however slight, had occurred in the country, except in the name of the ruling Council. The situation in which the basic trade union rights of workers were constantly violated gave rise to great concern by trade unions throughout the world at the national and international levels. It was totally intolerable that a Member of the ILO refused to supply reports on the implementation of fundamental Conventions relating to freedom of association. Moreover, the country also violated other basic human rights through the persecution, arrest and torture of workers. The national authorities should therefore take immediate concrete steps to resolve the unacceptable situation. She recalled that trade unions at the European and international levels had been exerting pressure for practical measures to be taken and had succeeded in obtaining the suspension of the European system of preferences for the country. Governments and employers throughout the world should show consistency with the position adopted in this Committee and should take such concrete measures as discontinuing their business and other relations with the country. The European Community should also maintain the withdrawal of its system of preferences.

The Government member of the United States expressed strong support for the statement by the Government member of the United Kingdom and reaffirmed her Government's long-standing grave concern about the situation as regards freedom of association in the country. It was an understatement to say that this was a serious case. For years, the members of the Committee had been hearing from the Burmese Government about its commitment to uphold the principles of the ILO, its intention to revise its labour legislation to bring it into conformity with the Convention or, on other occasion, its desire for ILO assistance. However, its commitment had not been translated into practice, its intentions had never turned into reality and it had largely avoided ILO assistance and monitoring. Once again, as on so many occasions in the past, it was necessary to note with deep regret that there was in effect no genuine freedom of association in the country. Those who wished to undertake independent trade union activities were kept under constant surveillance by the police and the military and lived in permanent fear of arrest and torture. It was sad to note that there was a fundamental absence of respect for human rights in the country which went well beyond trade union rights. The inevitable conclusion in these circumstances was that the Burmese authorities had complete contempt for their international obligations under the Convention, no concern for the recommendations of the ILO, the United Nations General Assembly, the United Nations Commission on Human Rights and, worst of all, that they displayed utter disregard for the rights of their own citizens. It was difficult to conceive of a conclusion that could motivate the Government to take the sincere, concrete measures that had been recommended for over 40 years. She therefore trusted that the Committee would not fail to note in the strongest possible terms its profound concern at the Government's persistent and deplorable failure to implement the fundamental right of freedom of association in law and in practice.

The Worker member of Japan noted that, as in the past, the Government representative had provided no new information or examples to support its claims that action was being taken. Its statement amounted to no more than contempt for the ILO supervisory system. There was no freedom of activity for the trade union movement in the country and indeed the Federation of Trade Unions of Burma, set up in 1991, had no choice but to remain outside the country. Amnesty International and the ICFTU had confirmed that trade union activists were always under surveillance by the police and military intelligence services and that they lived under the threat of arrest and torture. Yet, when the Convention had been drafted 50 years ago, the Government had served as a member of the Committee which drafted the Convention and had at that time played a role of which it could be proud. In contrast, it was now one of the most serious violators of international standards. The Government therefore needed to regain its pride of 50 years ago and make far-reaching changes to the situation as rapidly as possible.

The Worker member of Pakistan recalled that Myanmar was a beautiful country with a hard-working people. Unfortunately, its denial of fundamental trade union and human rights was affecting the development of the country. On the many occasions that the Committee had discussed the case, the Government representative had stated that specific measures were being taken to give effect to ratified Conventions. However, these statements were placed in their proper context by the failure even to supply the necessary reports. Moreover, serious violations continued to occur in the country of other fundamental Conventions, such as Convention No. 29 on forced labour. The previous year, the Government representative had expressed the hope that amendments would be adopted to the relevant legislation, but trade unionists were still held in detention and their rights denied. At the end of the twentieth century, it was no longer possible for countries to deny public opinion and refuse to establish democratic systems. He therefore urged the Government to take the necessary measures to establish a democratic system which would enable the people of the country to participate in economic and social development.

The Government representative said that he had listened with great patience to the views that had been expressed. He appealed for the understanding of the members of the Committee. It took time to enact the necessary legislation, particularly where tripartite consultation was required, as in the present case. Laws which were passed hastily would not stand the test of time or changing circumstances. As he had stated, the draft trade union law had been submitted to the Central Laws Scrutiny Body. It was therefore going through the legislative process which had to be followed, as in every other country. Once adopted, the new law would take into account the provisions of the Convention and the principles of the new state Constitution that was currently being formulated. If the Government had had no intention of complying with the provisions of the Convention, it would not have undertaken the process required for the formulation of such legislation in consultation with the parties concerned. In response to a number of the specific cases raised by members of the Committee, he reaffirmed that, as in every other country, when persons were in breach of the law the necessary measures needed to be taken under the terms of the Penal Code, which had been drafted in his country in the late nineteenth century, before independence. He also stated that the issues relating to seafarers had been resolved in 1996. It should therefore be understood that the Government was doing its best, within the confines of national procedure, to comply with the recommendations made and should therefore be entitled to the benefit of the doubt. It was undertaking major programmes, such as the development of a new state Constitution, in consultation with the representatives of all strata of society. Finally, he recalled that the official name of his country, as recognized by the United Nations, was the Union of Myanmar.

The Committee noted the written information communicated by the Government, 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 in 1987, 1989, 1993, 1994, 1995, 1996 and 1997. The Committee could not but deplore the fact that no government report had been received by the Committee of Experts on the application of this fundamental Convention for over three years, despite the repeated calls upon the Government by this present Committee including, in the last two years, in special paragraphs for continued failure to apply the Convention. The Committee was once again obliged to express its profound regret that serious divergencies between the national legislation and practice, on the one hand, and the provisions of the Convention, on the other, continued to exist and deplored the absence of 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 interests and the right to affiliate to federations, confederations and international organizations, without interference from the public authorities. The Committee also strongly urged the Government to make, without delay, substantial progress in the application of the Convention in law and practice in the very near future and urged the Government to supply a detailed report to the Committee of Experts this year. With the agreement of the Employers' and Workers' members, the Committee once again decided that its conclusions would figure in a special paragraph of its report and to mention this case among the cases of continued failure to implement Convention No. 87.