Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

Forced Labour Convention, 1930 (No. 29) - Myanmar (Ratification: 1955)

A. RECORD OF THE DISCUSSION IN THE COMMITTEE ON THE APPLICATION OF STANDARDS

A Government representative of Myanmar informed the Committee that the Supreme Court of the Union of Myanmar had revised and commuted the death sentences on the three individuals as follows: (1) the sentence on Shwe Mann (a) Zeyar Oo had been commuted to transportation for life under section 122(1) of the Myanmar Penal Code; (2) the sentence on Min Kyi (a) Naing Min Kyi had been commuted to three years' imprisonment under section 123 of the Myanmar Penal Code; and (3) the sentence on Aye Myint (a) Myint Aye Maung had been commuted to three years' imprisonment under section 123 of the Myanmar Penal Code. It should be noted that not only those three individuals but also the remaining six persons had received commutations of their sentences. Out of the nine individuals, four received commutations to three years' imprisonment and five received commutations to transportation for life. He recalled the content of his letter dated 3 June 2004, addressed to the Director-General of the International Labour Office, which had been distributed in document C. App/D.5(Add 2).

With regard to the Facilitator, the speaker said that, although the joint Plan of Action was not yet in force, the Myanmar authorities, on their part, were already implementing it in good faith. For instance, the Myanmar authorities had recognized the Facilitator designated by the ILO, as provided for in the joint Plan of Action, and had been cooperating with him in the performance of his duties. In this context, it is also relevant to note paragraph 10 of the report (GB.289/8/1) of the Special Adviser to the ILO Director-General who visited Myanmar from 3 to 8 March 2004. The mechanism of the Facilitator was a new concept. The terms of reference for the Facilitator had been clearly set out in the joint Plan of Action and the mechanism was already functioning effectively.

The speaker then referred to other measures taken by his Government. These included field observation teams. The seven field observation teams (FOT), headed by the Directors-General and heads of departments under the Ministry of Labour, continued to undertake field observation trips to various parts of the country. These teams oversaw the implementation measures in the field and carried out investigations into the allegations of the use of forced labour whenever they occurred. Their findings were submitted to the Convention No. 29 Implementation Committee for appropriate and necessary actions. The Ministry of Labour, under close supervision of the Convention No. 29 Implementation Committee and in collaboration with the ILO Liaison Officer a.i., compiled these findings and actions and submitted them to the Director-General of the ILO and the Committee of Experts on a regular basis. He also noted that the ILO Liaison Officer a.i. was enjoying freedom of movement in the country. The ILO Liaison Officer a.i. travelled through the length and breadth of Myanmar including remote areas such as the Chin Hills, Kachin State and Kayah State.

The speaker also pointed to the holding of a workshop on the implementation of Convention No. 29. A total of 120 participants in the workshop included: responsible officials from the peace and development councils at the division, district, township and village tract levels; high officials from various government departments; and representatives from NGOs. The subjects discussed included, inter alia: cooperation between Myanmar and the ILO; Order No. 1/99 and the Order Supplementing Order No. 1/99; Criminal Procedure Code; rights of Myanmar nationals; the role of the police force in the eradication of forced labour; and complaints within the region. The workshop proved to be very useful. There were plans to organize more similar workshops and seminars.

The Myanmar judiciary and the ministries and departments concerned were also taking necessary enforcement measures and legal actions whenever there appear prima facie cases with sufficient evidence. One significant development was the legal proceedings under section 374 of the Myanmar Penal Code in respect of two defendants for their alleged use of forced labour in Htanmanaing Village, Kawhmu township. In the past, a number of representatives, including the Worker members, insisted on the need to invoke section 374 of the Myanmar Penal Code. This was the first case prosecuted under section 374. Necessary actions were also being taken against those found guilty of infringing Order No 1/99 and the Order Supplementing Order No. 1/99.

The speaker then turned to Myanmar's observance of Convention No. 87. He noted that the National Convention, which had been entrusted with the drafting of a new state Constitution, was currently in session. He concluded by stating that the aforementioned measures bore testimony to the determination, dedication and commitment of the Myanmar authorities to the eradication of forced labour in the country. He wished to make it clear, once again, that no linkage between the ILO issue and politics or the internal situation in the country could be accepted.

The Worker members stated that yet another special session on the Forced Labour Convention, 1930 (No. 29), was being devoted to addressing the issue of forced labour in Myanmar. Several years ago, the Commission of Inquiry had already made the following specific recommendations to the Government: (a) to modify the laws relating to forced labour; (b) to terminate forced labour practices, particularly those imposed by the military; and (c) to apply effective criminal sanctions in cases of forced labour. The Committee of Experts had noted that the laws dating from 1907 were never modified, as recommended by the Commission of Inquiry. In this regard, the Government continued to claim that the Orders of 1999 had amended the laws in question. Then, why not modify the laws of 1907 themselves if the Government had already indicated that these laws were no longer applicable? Concerning the second recommendation of the Commission of Inquiry, the Government had not undertaken any of the four types of measures which were requested with a view to terminating forced labour practices. Hence the Government had not provided the relevant copies of the concrete specific instructions addressed to local authorities and the military; nor had the Government provided any definitions of forced labour or indicated how work in the country could be carried out otherwise than through forced labour. Apparently, no instructions had been provided to the military and nothing showed that the translation of the instructions in the local languages had been effectively disseminated. Moreover, if budgetary allocations had been made, they had not been used to envisage the carrying out of the necessary work in the country through other means. Strangely enough, all the investigations carried out by Convention No. 29 Implementation Committee had led nowhere. Concerning the third recommendation, it was observed that no sanctions had been imposed against the perpetrators of forced labour practices even where a complaint was lodged for the first time before a judiciary body. They concluded that the situation of Myanmar continued to be extremely serious and worrying particularly in the periphery and ethnic parts of the country where there was a strong military presence. Hence the overall situation was very depressing and affected a significant number of people. The Worker members emphasized the importance of continuing the Committee discussion in addition to the Governing Body discussion that had tended to focus more on procedural matters rather than substance until substantial progress could be demonstrated toward the complete elimination of forced labour in Burma.

This was the fourth year in a row that this case was discussed in a special session in accordance with the ILC resolution under article 33 of the ILO Constitution. Last year, the discussion of the then recently concluded agreement on a Plan of Action was coloured by the attack on Aung San Suu Kyi by forces associated with the military regime only days before the International Labour Conference began. Scores of her supporters were massacred, Daw Suu and many of her supporters were arrested and remained in detention to date, and all activities of the National League for Democracy (NLD) were suspended. Since the climate of fear and repression resulting from the massacre raised substantial concerns about the ability to implement the newly agreed Plan of Action, especially the work of the Facilitator that depended on the confidence of victims of forced labour to come to him as well as the Liaison Officer without fear of reprisal from the regime, this Committee concluded that it was not possible to begin implementation of the Plan of Action at that time. The Governing Body reviewed the situation not only at its November session but also once again at its session in March. On both occasions the Governing Body decided that the climate inside the country was not conducive for the implementation of the Plan of Action.

The Worker members recalled that the Governing Body in March asked this Committee to review developments under the circumstances and that the conclusions reached by the Governing Body "are of course without prejudice to the views expressed by some that the lack of substantive progress would call for reactivation of the review of relations between the ILO constituents and Myanmar under article 33 of the Constitution". The Governing Body in March expressed three fundamental concerns about the sentencing to death of nine persons for high treason, in particular Shwe Mahn, Naing Min Kyi and Aye Myint. It should be emphasized that the Facilitator designated by the ILO was of the opinion that "the matter had not been dealt with in accordance with an appropriate and credible procedure, and that the charge of high treason was unfounded and needed to be reviewed". The first concern expressed by the Governing Body in March was that contacts or exchange of information with the ILO could in any way have judicial consequences in Burma. The second concern focused on whether contacts with "third parties" on matters of concern to the ILO could similarly be punished. And the third concern raised the issue as to whether, in light of the court decision, the Plan of Action and more specifically the Facilitator mechanism could be credibly implemented.

The Committee took note of two letters that had been sent to the Minister of Labour since the March session of the Governing Body - one from the Liaison Officer and one from the ILO Director-General himself. These letters could be found in document D.5. There was also the letter sent by the Ambassador only a couple of days ago that appeared to be in response to the Director-General's letter of 2 June. In this letter, the Ambassador indicated: firstly, that the three defendants somehow had the right for a second appeal to the Supreme Court; secondly, that the lower court inadvertently and incorrectly made reference to the ILO in its original decision; and, thirdly, that under no circumstances did contact or cooperation with the ILO constitute an offence under existing law. They also recalled that this year's discussion was taking place under a similar pall as last year's discussion. Aung San Suu Kyi remained under house arrest and was virtually incommunicado. None other than the UN Special Rapporteur on Human Rights in Burma/Myanmar, who had been refused a visa to enter the country, had called the Constitutional National Convention now taking place at a secure location outside Rangoon "an enormous effort for a meaningless and undemocratic exercise". He had accused the Government of condemning the carefully selected 1,088 people attending the convention to house arrest and publicly stated that the democratic transition would be impossible unless Myanmar's generals eased curbs on free, open discussion at the convention. The ethnic groups agreeing to a ceasefire participating in the convention were already making demands about fundamental changes in the documents drafted nearly a decade ago and now being dusted off for this National Convention or they would walk out.

The Worker members stated that the spirit of cooperation contained in the Government representative's remarks stood in stark contrast to what was happening inside Burma today which could only be described as a victory by those inside the military most resistant to reform of any kind. To the ILO the face of the Government was a civilian diplomat, but to the Burmese people the face of the regime was the soldier with his gun. In view of the above, they turned to four points in reaction to recent developments. First, the Worker members fully supported the view expressed by the Facilitator designated by the ILO that the convictions of Shwe Mahn, Naing Min Kyi and Aye Myint were unfounded. Their only alleged crime appeared to be their association with pro-democracy groups opposed to the regime, particularly the Federation of Trade Unions of Burma. On account of this association, they had been labelled terrorists and convicted of high treason. While they were relieved that the sentences for Naing Min Kyi and Aye Myint had been reduced, they demanded the immediate release of all three. They further demanded the release of the other six defendants, five of whom continued to face prison sentences. They hoped that this second review by the Supreme Court was completed in due haste and the defendants were exonerated. Second, regarding the matter of whether contact and cooperation with the ILO constituted a crime in Burma, the Government representative's assurances contained in his letter of 4 June, whilst appreciated, were insufficient. They hoped that any second judgement by the Supreme Court would make it absolutely clear that contact with the ILO was not a crime and should in fact be encouraged. This had to be clearly communicated throughout the country in all the appropriate languages. Third, clarity also needed to be brought to the issue of contact with third parties on matters of concern to the ILO. Court decisions made it clear that what was meant by third party is the Federation of Trade Unions of Burma and its Secretary-General, Mr. Maung Maung, who had addressed the Committee earlier and who had been convicted in absentia of high treason. Without such clarity, the implementation of the Plan of Action, especially the work of the Facilitator, would be fundamentally compromised.

Given the current political climate inside the country, the Worker members did not believe that the Plan of Action could be effectively implemented at present. The speaker emphasized that the Worker members had reacted positively toward the Plan of Action, especially the facilitator framework, both in this Committee last year and in the Governing Body. They looked forward to the day when the climate existed for the Plan of Action to be tested to determine the degree to which it actually contributed to the elimination of forced labour in Burma. In this regard, they noted with interest the information provided in document D.5 concerning the activities of the Liaison Officer, specifically the fact that he had received 40 complaints thus far in 2004. They deplored the fact that the regime had admitted that only three of the 40 were the victims of forced labour and it did not appear that any action had been taken by the authorities to date. Nonetheless, they saw value in the work of the Liaison Officer and would be open to exploring ways to expand and make more effective such work if the circumstances emerged for such a consideration.

The Worker members recalled that the Commission of Inquiry report had noted that "all the information and evidence before the Commission shows the utter disregard by the authorities for the safety and health as well as the basic needs of the people performing forced or compulsory labour ... Forced labourers, including those sick or injured, are frequently beaten or otherwise physically abused by soldiers, resulting in serious injuries, some are killed, and women performing compulsory labour are raped or otherwise sexually abused by soldiers ...". The Worker members were compelled to emphasize that, despite the ongoing engagement between the Office and the Government, very little had improved concerning the widespread use of forced labour, particularly by the military, and on infrastructure projects. Confirmation of this was contained in the Experts' comments once again this year and supported by the continual flow of information coming out of Burma. Unless significant progress was made in the next couple of months toward the implementation of all three Commission of Inquiry recommendations, the Governing Body would have no choice but to direct the Director-General to strengthen his call under article 33 of the Constitution that all of the ILO's constituents should review their relations with Myanmar to ensure that such relations did not perpetuate or extend the system of forced or compulsory labour in that country.

The Employer members stated that the Government of Myanmar still refused to comply with obligations they had voluntarily accepted under international law. This increasing isolation was detrimental to their economy and their people and, if it continued, would lead to contempt by the international community. It was too early, however, for resignation. The Employer members recalled that the Committee's mandate was to examine the measures taken to implement the resolution adopted by the Conference in 2000 which, for its part, was based on the Committee of Experts' observation of 1998. They observed that there were still massive violations of Convention No. 29. The legal basis for these violations, the Village Act and the Towns Act, continued to be in force. The abolition of forced labour would only be possible if the Government was prepared to act. While the Government representative in his statement had indicated a willingness to act, documents D.5 and D.6 had shown that little progress was evident at all. They turned to specific issues regarding forced labour in the country. They noted that instructions issued by the military authorities banning forced labour needed to be disseminated and translated into local languages. The aforementioned Acts allowing forced labour needed to be abrogated. Furthermore, the pamphlet on forced labour mentioned in paragraph 14 of the Committee of Experts' observation still had to be drafted. Financial resources for development were also necessary to ensure the abolition of forced labour, since many projects depended on forced labour for their completion. Finally, he noted that sanctions for the use of forced labour existed only on paper and that no information had been received on their application in practice.

The Employer members noted the long history of this case and recalled the various missions that had led to the appointment of a Liaison Officer in Myanmar in May 2002. The Government only reacted slowly and under pressure. In spite of this, it was not even possible for the Liaison Officer to effectively examine allegations of forced labour brought to his attention, as indicated in document D.5. They further noted that new information had revealed that forced labour was also a problem in border regions and was practised in the context of military service. More specifically, there were allegations that young persons under the age of 18 years were being recruited for compulsory military training. They noted that, when the Government replied to such allegations, such responses were always received just before the Conference. Referring to the Plan of Action of May 2003, they noted that an independent facilitator was supposed to carry out duties mentioned in paragraphs 38-45 of this year's observation by the Committee of Experts. The commencement of the Plan of Action should be determined by the Director-General. Until now nothing had happened. They further noted that, in March 2004, the Governing Body had concluded that the conditions in Myanmar were not sufficiently convincing to proceed with the implementation of the Plan of Action.

The Employer members noted that there were some positive developments. The Liaison Officer had received a considerable number of complaints regarding forced labour, which he had transmitted to the Convention No. 29 Implementation Committee for investigation and action. These cases concerned, inter alia, instances of forced recruitment of persons under the age of 18 into the military service. Most of these cases had not yet been investigated. The Employer members drew special attention to the cases of nine persons sentenced to death for high treason, including three persons whose convictions were related to their contacts with the ILO. These sentences gave rise to the suspicion that contacts with third parties on matters of concern to the ILO constituted a basis for punishment. This had been confirmed by the letter of the Ambassador of Myanmar of 3 June 2004 addressed to the Director-General, in which the Ambassador referred to the judgement of 28 November 2003 and had indicated that contact and cooperation by a Myanmar citizen with the ILO did not constitute an offence under national law.

The Employer members concluded that the preliminary summary of this case gave rise to deep concern. The Plan of Action envisaged one year ago had not yet been implemented. Although the latter contained only some measures which would lead to a radical change of the situation, it would be a start. The implementation of the Plan of Action was also required in order to render the contacts between the ILO and the Government meaningful. More effective measures needed to be taken now. They further expressed their hope that the Government would not provide the latest information on developments only just before the beginning of the Conference.

The Government member of Indonesia, speaking on behalf of the ASEAN countries, expressed his appreciation to the Director-General of the ILO for his continuing support and cooperation with the Government of Myanmar in its efforts to eliminate the practice of forced labour in the country. He also acknowledged the role played by the ILO Liaison Officer a.i. in Myanmar, in assisting the Myanmar authorities in the observance of ILO Convention No. 29. His delegation welcomed the commitment of the Government of Myanmar to observing ILO Convention No. 29, and to eliminating the practice of forced labour in the country. He noted the agreement reached between the Myanmar Government and the ILO on 27 May 2003 on the joint Plan of Action and urged both sides to jointly implement it as soon as possible. In this connection, he welcomed the visit of the ILO Mission to Myanmar from 4 to 6 March 2004, led by the Special Adviser to the ILO Director-General. Myanmar and the ILO should proceed to implement the joint Plan of Action and continue their cooperation. He believed that a cooperative approach would enable the International Labour Conference to play a constructive role in this respect, and encouraged the Government of the Union of Myanmar and the ILO to continue amicable cooperation until the issue was completely resolved.

The Government member of Ireland spoke on behalf of the European Union. She indicated that the candidate countries Bulgaria, Romania and Turkey and the countries of the Stabilization and Association Process and potential EU candidates Albania, Bosnia and Herzegovina, Croatia, The former Yugoslav Republic of Macedonia, Serbia and Montenegro and the EFTA countries Iceland, Norway and Switzerland, had aligned themselves with her statement. The European Union (EU) wished to underline its support for and appreciation of the work of the International Labour Office and that of its former and current liaison officers in their work on forced labour in Burma/Myanmar. The speaker recalled that, in March, the Governing Body had concluded that while positive developments had occurred since November 2003, the court judgement against certain persons in relation to contacts or exchange of information with the ILO had undermined the credibility and prospects for future cooperation. Three separate concerns were identified in the Conclusions. The Office was to examine this question more thoroughly in light of the results of the review of the recent cases and any further assurances provided by the Government. It was to report on the results of this examination to the Officers of the Governing Body, with the proviso that the results should be found sufficiently convincing before proceeding to the implementation of the Plan of Action. The speaker said that the EU did not find the additional information provided sufficiently convincing to permit implementation of the Plan of Action.

The European Union was gravely concerned that the three persons whose conviction had an ILO connection continued to be imprisoned, one for a sentence equivalent to a term of life imprisonment. She was further concerned that they had not been granted access to their defence lawyer. It was now learned that they had been granted a second appeal, but that appeal should lead, at the very least, to a satisfactory outcome in the terms expressed in their letters by both the Director-General and the Ambassador of Burma/Myanmar. Only then could further steps be considered, be they positive or, if the results were disappointing, a further utilization of measures to ensure the respect of Convention No. 29 by Burma/Myanmar. The EU noted that the ILO Liaison Officer a.i. had continued with his activities, including discussions with the Minister for Labour and the Director-General of his department, and that he was able to travel to Chin State in a visit conducted independently of the authorities. The EU acknowledged that the ILO Liaison Officer a.i. was able to travel to all areas that he wished without any restrictions or escort, and was able to meet freely with a range of persons, as well as with members of the Chin State Peace and Development Council, including its secretary. However, she noted that, despite the increasing number of allegations received by the ILO Liaison Officer a.i., none brought to the attention of the Convention No. 29 Implementation Committee had been found by the Committee to be justified. The EU was concerned that the Committee had not found any cases of forced labour, since there was evidence of cases thereof. The EU shared the view of the Liaison Officer a.i. that if the official position of the Convention No. 29 Implementation Committee remained that the allegations were unfounded, this would inevitably cast doubt on the credibility of the Committee and its work.

The European Union was concerned and deeply disappointed that the authorities of Burma/Myanmar, despite previous assurances, had not released Daw Aung San Suu Kyi, or her deputy, U Tin Oo, and had not allowed the National League for Democracy (NLD) to reopen their offices. The EU regretted this failure by the authorities of Burma/Myanmar to create the conditions which would have allowed the NLD to take part in the National Convention. They were further concerned at the restrictions placed on participants in the National Convention. She regretted that this opportunity to begin a real process of national reconciliation and a peaceful transition to democracy had not been taken by the Burmese authorities. They were also concerned that the UN Special Rapporteur on Human Rights in Burma/Myanmar had not been able to gain entry. The EU reiterated its commitment to democratic change in Burma/Myanmar as well as ongoing humanitarian assistance to the people of Burma/Myanmar and remained committed to working with its Asian and other partners to that end.

The Government member of the United States stated that her Government had carefully studied the documentation prepared for the Committee on developments concerning the question of Burma's observance of Convention No. 29 on forced labour. She had also listened with great interest to the presentation made this morning by the Government of Burma. The inevitable conclusion was that forced labour continued in Burma. The Committee of Experts, in its current report, found that "while there may have been some decrease in forced labour since the report of the Commission of Inquiry in 1998, in particular for civil infrastructure work, forced labour continues to be exacted in many parts of the country". The ILO Liaison Officer a.i. provided additional credible evidence of the ongoing use of forced labour and the forced recruitment of children into the armed forces. Some Burmese individuals had demonstrated remarkable courage by contacting the ILO Liaison Office to report incidents of forced labour. Two individuals even filed a complaint in a Burmese Court under section 374 of the Burmese Penal Code - the first time this had happened. Still, the Burmese people lived in a climate of fear. Her Government was appalled to learn in March that three people were sentenced to death for contacting the ILO. The Governing Body was assured by the Burmese authorities that the cases would be reviewed. But the recent decision of the Supreme Court was merely to reduce the sentences. This was unacceptable. No one should be punished, and no one should fear punishment, for contacting the ILO. She urged the Burmese authorities to guarantee that the Supreme Court would review these cases, and that the three persons would have access to effective legal assistance in preparing their appeals. To do otherwise, as the Governing Body previously noted, would undermine the credibility and prospects for future cooperation. She agreed with the conclusion of the Officers of the Governing Body that the latest developments in the situation in Burma were not sufficiently convincing to proceed with the implementation of the Plan of Action. Indeed, she urged the ILO to defer signing the Plan of Action until the prospects for successful implementation had improved sufficiently. If the situation did not improve significantly - and soon - the November session of the Governing Body would need to consider reactivating measures under article 33 of the ILO Constitution. It was now almost 50 years since Burma committed "to suppress the use of forced or compulsory labour in all its forms" under the Forced Labour Convention, 1930 (No. 29). The Burmese authorities had to live up to their obligations and end this intolerable practice. Concrete actions that demonstrated resolve to implement the Commission of Inquiry's three recommendations were the only way in which the Plan of Action could go forward.

The Government member of Australia, speaking also on behalf of the Government of Canada, said that both countries' positions on forced labour in Burma were clearly on the record both at the ILO and in supporting United Nations resolutions on Burma. They acknowledged the role played by the ILO Liaison Officer a.i. in Yangon, particularly his efforts to assist the Burmese authorities to observe ILO Convention No. 29. Canada and Australia strongly supported the Plan of Action and they were deeply disappointed that no change at all seemed to have occurred in Burma since the International Labour Conference last June to eliminate the practice of forced labour. It was time for Burma to demonstrate its commitment to eliminating forced labour by cooperating fully with the ILO to implement the Plan of Action. He reaffirmed that, in principle, Australia and Canada favoured the signature of the Plan of Action. Canada and Australia remained convinced that urgent action was required to assist the citizens of Burma experiencing, or under threat of, forced labour. A basic element of the Plan of Action was that the people of Burma should be able to cooperate with the ILO with full confidence and without fear of retribution. They sought a clear commitment from the Burmese Government that contact with the ILO would not constitute a criminal offence. Until they were satisfied that this was the case, reluctantly, they could not endorse signature and implementation of the Plan of Action. Although it was not appropriate for this Committee to become involved in broader political debates, it should convey clearly to the Burmese Government that past events brought into question its intentions regarding implementation of the Plan of Action. Australia and Canada had made it clear on many occasions that all political detainees, including the Secretary-General of the NLD, Aung San Suu Kyi, should be released immediately and unconditionally. It was now more than 12 months since Aung San Suu Kyi was detained in Burma where she remained under house arrest. There was no justification for her continued detention and her release was a prerequisite for democratization in Burma as outlined in the Road Map. He called on Burma to implement the Road Map to democracy, including drafting a new constitution with broad participation and open debate. The National Convention which commenced on 17 May 2004 was not credible because it did not meet that test. It was up to the Burmese Government to create a climate to give parties confidence about their participation in the National Convention.

The Worker member of Malaysia said that no progress had been noted in this case since it began, despite yearly assurances by the Government of Myanmar to the contrary. He suggested that the Government representative travel to Myanmar to see the facts first hand, or that the military junta attend the next meeting of the Committee. Reports indicated that forced labour occurred every day. He pointed to mainly Muslim refugees who had appeared at the Malaysian border and who were fleeing forced labour practices. With regard to paragraph 28 of the Committee of Experts' comment on Myanmar and Convention No. 29, he pointed out that there was evidence that the army recruited persons under the age of 18. Turning to the topic of freedom of association, he urged the Myanmar Government to listen to its people and to make freedom of association a reality.

An observer representing the International Confederation of Free Trade Unions (ICFTU), speaking with the authorization of the Officers of the Committee, stated that he was the Secretary-General of the Federation of Trade Unions-Burma (FTUB), an independent workers' organization, working underground inside Burma and maintaining offices and training structures in neighbouring countries. As such, the FTUB received information concerning forced labour and other violations of fundamental workers' rights sent by Shwe Man, Min Kyi and Aye Myint, who had remained in jail in Burma since July 2003 and whose cases were amply described in the documents presented by the Office to the Committee. He assured that there was absolutely nothing subversive, revolutionary nor anti-State about this information. He held and would make available to the ILO a folder containing the reports sent to him since 2001 by his imprisoned colleagues. Far from constituting any grounds for a death sentence, or even one single day in jail, these documents provided undisputable evidence of forced labour, exploitation and extortion by Burma's military authorities.

This other document which he held was the latest forced labour report sent by the FTUB to the ICFTU less that three weeks ago, covering a period from September 2003 to April 2004. It contained details of at least 3,000 villagers forced to work on road construction, to deliver food to the army, to keep guard, to build military barracks, to provide building materials, to dig channels, to provide boats, trucks, bullocks and even elephants, to plough fields for the army or to pay cash in exchange for labour they could not perform. In Tan-tabin township, last December, Tactical Commander Khin Soe ordered 254 villagers from Baw-gali to clear undergrowth and landmines along the road. In Lashee township, in Sagaing Division, over 900 households had to provide labourers to construct a road between 18 and 24 April 2004. They had to crush gravel, chop down trees, remove heavy rocks and construct a bridge. The FTUB's report was supported by 17 forced labour orders, all of which were identical in content and shape to the thousands of orders which they had supplied over the years to the ILO and which had been found by the Committee of Experts to be authentic. They were issued in Sagaing Division, in Pegu Division, in Karen State and in many other places; they contained dates, locations, battalion numbers, names and rank of army officers and descriptions of civilian authorities.

The continuation of forced labour in Arakan State was confirmed by Forum Asia, a human rights NGO based in Bangkok, and whose reports on Burma were well known to the ILO. Its latest report, dated 1 June, gave details of forced labour on a road construction project to link South Maungdaw with Rathedaung township. While the work initially started with the use of an army bulldozer, it stopped for a few months when the bulldozer reached a rocky hill in the Manyu mountain range. It resumed in March this year with forced labourers taken from five village tracts in the area. Two forced labourers had already died on this road project, in March and in April, when they were hit by rocks falling from the cliffs. This clearly demonstrated not only that the army still very much used forced labour, but also that it did so on major infrastructure projects, contrary to assurances given by the junta to the international community. It should be noted, however, that forced labour had stopped in the area for a while in 2002 and 2003, but resumed when an army battalion was deployed in the area. In other words, forced labour was still very much imposed at will by the army, according to the whims and decisions of local commanders over which central authorities seemed unwilling or unable to impose effective control.

The FTUB, the workers and the people of Burma were grateful to the ILO for its efforts on the ground to eliminate forced labour. They were encouraged by the opening of the Rangoon Office, and thought that at least two new ILO offices should be opened, one in Upper Burma, and one in southern Burma for all people of rural areas to have access to the ILO. They were very concerned, however, by the fact that, over the last few weeks, many people wanting to report cases of forced labour to the ILO had been turned away by security officials from the Rangoon hotel where the office was located. He called for the assurances made by the authorities that contact with the ILO was not a crime to be announced publicly, including in ethnic languages and by all technical means used in this regard, such as radio and television. The same assurances should be given as concerned the right of Burmese workers to contact independent trade union organizations, including the FTUB. These requirements, as well as the need for the immediate and unconditional release of the detainees sentenced last November on charges of high treason, were the minimum prerequisites for further ILO initiative or action in the country, such as the implementation of the Plan of Action. Failing genuine and measurable progress, the ILO should implement the actions and measures foreseen by the 2000 resolution adopted by the International Labour Conference under article 33 of the Constitution.

The Worker member of the Netherlands stated that he had two observations to make in order to review certain points that he had made last year during the special sitting on Myanmar. The first point concerned the OECD Guidelines for Multinational Enterprises as an instrument to help governments, employers and trade unions to make a contribution to the elimination of forced labour. He considered that in the past year, this instrument, which was not binding, had lost a great deal of its potential as a consequence of a decision by the OECD member States to limit the scope of its application to direct investments and to exceptional cases, to be decided on an ad hoc basis, dealing with investment related trade. Governments had taken this decision while complaint procedures against companies with economic activities in Burma other than direct investment, for instance, travel agencies, were well under way in the Netherlands, and had been considered as receivable by the National Contact Point. Earlier this year, the Government had told the travel agencies that it would prefer them to discontinue organizing trips to Burma and that it would take certain measures vis-à-vis their customers if they would choose to ignore the Government's policy of discouraging business with Burma, which gave the trade unions at least some satisfaction. Quite a few travel agencies had meanwhile indeed stopped their activities in Burma as a result of the campaign by NGOs and trade unions, but some continued. In addition to this, the trade unions had been successful in one case addressed under the OECD Guidelines in their efforts to change the behaviour of a major Dutch investor in Burma, namely, the dredging, shipbuilding and engineering company IHC CALAND, which did business in Burma jointly with Premier Oil Inc., and since September of last year with its successor in the joint venture, Petronas of Malaysia. After two years of discussions, the Dutch company had decided to change its policies, pledged not to engage in further investments (while maintaining to serve their contractual obligations in the earlier concluded joint ventures), and expressed concern about forced labour in that country. At the request of the Dutch trade union confederations FNV and CNV, the company in question had also addressed Petronas Malaysia, urging it to respect the OECD guidelines and rules on forced labour, something which the Malaysian company had recently promised to do.

The speaker continued with his second point which concerned the follow-up to the 2000 resolution on Myanmar under article 33 of the ILO Constitution. He recalled that last year he had pleaded for a new reporting round on the implementation of the resolution which would have given a picture of the way in which the ILO constituents indeed had reviewed their relations with Burma. In fact, the Committee did not have any information in this respect as the first reporting round had been carried out just a few months after the adoption of the resolution and the time span covered was so short that one could not have realistically expected that policies of Government, employers and trade unions had, by then, already changed. By now, however, the Committee should be able to examine the impact that the resolution had had in practice in terms of compliance by those who had adopted it. He wondered whether the phrase "reactivating the resolution" meant that there was a tacit understanding that nobody should for the time being implement it and that the ILO should be silent about it. If that was the case, then he found it disappointing that in a field where the ILO had a strong and well-deserved reputation, i.e. careful monitoring of policy implementation, it should have acted with such lack of transparency and in such a hesitant manner. He therefore repeated his strong plea for a follow-up of the resolution in terms of regular reporting on its application in practice by the tripartite constituents of the Organization.

The Worker member of Japan, speaking on behalf of the Japanese Trade Union Confederation-RENGO, observed that in spite of the promises made by the Government of Burma, forced labour was still exacted widely in Burma as the Committee of Experts pointed out in its report. Noting the large efforts that the ILO had made to eliminate forced labour in Burma, he expressed the hope that the Government would take the necessary steps to make it possible for the joint Plan of Action to be implemented as soon as possible. He recalled that the 2000 resolution on Myanmar, adopted under article 33 of the ILO Constitution, called upon ILO member States to revise their relations with the Government of Burma and asked all parties not to give any advantage to the Government of Burma. He expressed the view that this resolution would be effective in practice if all member States could get together to put pressure on Burma, while recognizing that, at the same time, the international community should give the necessary assistance to the country to eradicate forced labour. In this respect, he regretted to observe that a few countries and some multinational companies supported financially and politically the Government of Burma. Although he did not deny that international investment could open societies and bring democratic changes, he emphasized that this was not the case in Burma. For instance, domestic law required that foreign direct investment (FDI) be carried out through joint ventures with the military regime, so that fees and benefits from investment went straight to the generals. He noted that according to the Union of Myanmar Economic Holding Annual Report 1990-2002, which was fully owned by the Burmese military regime, FDI had been growing significantly, and that most top investors in Burma were ASEAN countries such as Singapore, Thailand, Malaysia and Indonesia. One-third of total FDI was for the oil and gas sectors. Major countries with FDI in Burma from 1990 to 2002 were Singapore, the United Kingdom, Thailand, Malaysia, France and Japan. The leading companies in the oil and gas sectors were: (1) the Daewoo Corporation from Korea; (2) TotalFinaElf; (3) Uncoal from the United States; (4) Petroleum Inc. from Canada; and (5) TG World Energy Ltd. from Canada. Most importantly, investment was increasing rapidly even after the adoption of the ILO resolution in 2000. There was no doubt that this kind of support helped the military regime to continue to survive and oppress the people of Burma and ultimately led to having forced labour in Burma. In conclusion, he urged the representatives of the governments and the employers of these countries to stop giving any advantage to the military regime, as this was the shortest and most effective way to stop forced labour in Burma.

The Worker member of Italy observed that despite the promises made by the Burmese military regime in past years, the situation concerning the widespread violations of the Convention was not really improving and it was now urgent to assess the consistency of the Government. Although some measures had been taken, they were rather superficial, and did not really address the heart of the problem. The recent high treason cases before the Supreme Court concerning nine persons sadly provided support for this dark assessment. While after the Governing Body session of March the death penalty had been commuted by the Supreme Court, all persons convicted of high treason for having merely contacted a trade union remained in prison and should be immediately released while their criminal penalties, including the euphemistic penalty of "rigorous labour", should be cancelled as a prerequisite to any other action. The speaker further observed that the main points identified by the Commission of Inquiry had not been implemented. For instance, the Village Act and the Towns Act had not been amended, although Order No. 1/99 and its supplementing Order had been adopted and could be used as a legal basis to eliminate forced labour under the condition of being strictly applied. Concrete instructions to stop forced labour as requested by the Committee of Experts for a number of years had not been issued and nothing justified this delay on the part of the Government. The only point where admittedly some measures had been taken concerned the publicity given to the Orders even though its efficiency was close to nothing. She emphasized that only if people were aware that forced labour was a crime would they have the courage to resist, and that extensive publicity measures should target the population, the civilian authorities and the military. However, no publicity measures seemed to have been taken yet with regard to the military, while the Convention No. 29 Implementation Committee had not reached the civilian authorities in all 16 states and divisions and a huge amount of people in Burma had never heard about the Orders.

The speaker also emphasized the fundamental urgency of shifting the nowadays huge budget allocated for the army and weapons to the elimination of forced labour and the promotion of fair social conditions. As regards the monitoring mechanism, she noted that the dialogue between the Convention No. 29 Implementation Committee and the ILO Liaison Officer should be used so as to bring more rapid and concrete results, for instance, by establishing after each meeting a list of the tasks undertaken and the persons responsible for their implementation, so that developments could be better assessed by the Governing Body. In addition to this, she considered that the investigating methods of the Implementation Committee were clearly not appropriate and expressed serious concern at the fact that all the allegations of forced labour transmitted by the ILO Liaison Officer for investigation had been either found baseless or not followed by an investigation. The Government needed to understand that the rule of law required not only the establishment of machinery but guarantees of fair, transparent and effective procedures, which was far from the case. As for the issue of enforcement, she recalled that, although the Commission of Inquiry had urged the Government to take the necessary steps to ensure that the penalties which might be imposed under section 374 of the Penal Code for the exaction of forced labour be strictly enforced, to date no sanction had ever been imposed and no complaint had ever been filed, except for the two recently reported cases by the ILO Liaison Officer. This was not an indication that there was no forced labour, but rather evidence that the machinery did not have the confidence of the victims. She found it encouraging, however, that the presence of the ILO Liaison Officer somewhat compensated for this serious defect, since he had reported that he had received detailed allegations from victims of forced labour. In this regard, she noted that the situation concerning the interim nature of the Liaison Officer should be overcome by creating, even in the absence of the Plan of Action, a Liaison Office strong in terms of human resources and means, headed in such a way as to separate, on the one hand, the political relations with the national authorities and, on the other hand, the practical work to be carried out in the field, the follow-up action and the evaluation. She concluded by suggesting that between now and November the structure of the ILO Liaison Office be enlarged in the field, starting with Mandalay and the southern town of Moulmein.

The Government member of New Zealand recalled that her Government had repeatedly called on the Government of Myanmar to set in place the conditions through which the abhorrent practice of forced labour could be eliminated from the country and reaffirmed her Government's strong support for the joint Plan of Action which offered a worthy path forward. She recalled that last year, this special sitting had expressed its grave concern at developments in Myanmar that stood in the way of the implementation of the Plan of Action and that over the past year the Governing Body had twice echoed these concerns, citing further worrying cases that ran counter to the objectives of the Plan of Action. She expressed her Government's appreciation at some action that had been taken to address in part some specific cases, but also conveyed her Government's dismay at the few, if any, signs of progress or political will to take concrete actions so as to create the conditions under which the Plan of Action could be implemented. She emphasized that her Government remained deeply concerned at the situation in Myanmar, including the continued detention of political prisoners, restrictions of the right to freedom of opinion and expression and freedom of association, and that this deplorable practice had continued far too long. She concluded by saying that there were still numerous concrete measures that could be taken by the Government of Myanmar even outside the Plan of Action in order to remove these practices, and that higher priority should be accorded to making substantive progress in this respect.

The Government member of Sri Lanka welcomed the efforts made by the Government of Myanmar in cooperation with the ILO towards the elimination of forced labour. The Myanmar authorities had revised and commuted the sentences passed on citizens to lighter sentences in response to the views and concerns expressed by the ILO Governing Body. He encouraged Myanmar and the ILO to continue to work together with a view to a final resolution of this issue and the removal of measures taken against Myanmar by the International Labour Conference.

The Worker member of Burundi addressed two forms of forced labour still practised in Burma: forced recruitment of children into the army and forced use of workers as "human minesweepers". He illustrated these widespread practices with two examples: first, on 6 May 2004 a young boy of 16 years old named Wai Zim was arrested near his family dwelling in the borough of Hlaing Thaya. He was a young deserter from the light infantry battalion No. 215. He was recruited by force in December 2003, at the age of 13, and his name had been changed by the army to make it more difficult for his parents to find him. There was a double irony in his arrest for desertion last month. On the one hand, his arrest order indicated that he had to be arrested with a view to be officially dismissed from the army. On the other hand, his arrest order was signed by Lieutenant-General Tayn Sayn, who was also a Secretary of the Governmental Committee for Prevention of Use of Children Soldiers. The boy, Wai Zim, was one of 70,000 child soldiers actually used by force by the Burmese army. Second, the use of "human minesweepers" by the Burmese army was a practice which was well known to the ILO and this Committee. It was still very widely used at present. Thus, during the military offensive against the rebels of the State of Karen in October 2003, at least 300 persons were forced to work as porters and "human minesweepers". At least three of them died, torn into pieces by mines on which they put their feet. In conclusion, the speaker hoped that the Committee would consider it to be its duty to severely condemn these disgusting practices of the Burmese army.

The Employer member of India observed that the issue of Myanmar continued to be in the spotlight despite the time that had elapsed since the report of the Commission of Inquiry and the historic invocation of article 33 of the ILO Constitution. He emphasized that the purpose of this Committee should be not only to punish any guilty parties but also to ensure that ILO action became effective and yielded definitive results. He therefore had a few suggestions to make on how to improve ILO effectiveness in this respect. First, the joint Plan of Action should be made unconditional and should not depend on meeting prior conditions for its effective implementation. This would lead to a vicious circle whereby the situation would not improve precisely because the Plan of Action had not gone ahead. Second, technical cooperation programmes should be multiplied so that awareness could be raised in the country, especially through massive education programmes. Third, although the supervision and monitoring of the situation should continue, this Committee should not hold a special sitting on this case every year, but rather every two or three years after the ILO took action in the country and the situation had drastically improved.

The Government member of India stated that his delegation had carefully noted the information provided by the Office, particularly on the events that had taken place since the question of the observance by Myanmar of Convention No. 29 had been examined by the Governing Body in March this year, when positive developments had been noted and the Myanmar authorities had demonstrated an openness to cooperate. The Government member considered that the initialling of the joint Plan of Action in May last year was an important step which marked a new beginning in the process of cooperation between the ILO and the Myanmar authorities. He urged both sides to move forward towards implementing this Plan of Action, and noted with satisfaction that the two parties had been holding consultations on steps that needed to be taken towards its implementation, in particular the fact that the ILO Liaison Officer had been able to travel to several areas as he wished without any restriction or escort from 10 to 15 May, and had also been able to meet freely with a range of persons. He suggested that such developments needed to be viewed positively by the Committee as they conveyed the desire of both the ILO and the Government of Myanmar to improve the situation. He informed the Committee of his Government's view that Myanmar should be provided with adequate assistance to bring about the necessary changes without linking it to the internal political process in the country. Steps that had the potential of derailing this process had to be avoided.

The Government member of Japan emphasized the importance attached by his Government to the early and effective elimination of forced labour in Myanmar. He noted that this should be achieved by appropriate measures taken by the Government of Myanmar in line with the recommendations of the Commission of Inquiry, and expressed the hope that steady progress would be made towards this end through dialogue and cooperation between the ILO and Myanmar. He considered that the key to the implementation of the joint Plan of Action was to promote steady implementation of the facilitator activities and pilot projects, through which confidence between the ILO and the Government of Myanmar would be enhanced and further positive measures by Myanmar encouraged. Finally, he expressed the hope that progress would be made on various questions surrounding this issue.

The Government member of China stated that he had carefully listened to the opinions expressed from all sides during the discussion and expressed the hope that all of them would be put on record. He observed that Myanmar had been making efforts to improve the application of the Convention and expressed the hope that further cooperation and dialogue between the Government of Myanmar and the ILO would facilitate a rapid implementation of the joint Plan of Action.

The Government member of Bangladesh affirmed that forced labour anywhere and in any form should be eradicated and that no effort should be spared towards this objective. He expressed his appreciation to the ILO Director-General for the continuing cooperation between the ILO and Myanmar. He also expressed his appreciation for the work of the ILO Liaison Officer. He emphasized that the implementation of the joint Plan of Action was of critical importance and therefore urged both sides to make sincere efforts to this end. In this context, he called upon the Myanmar Government to extend the fullest possible cooperation to the ILO and invited the Office to remain constructively engaged with the Myanmar Government for an early resolution of this issue.

The Government member of Pakistan thanked the Government representative of Myanmar for the information he had provided on measures taken to address the issue of forced labour in his country. He retained in particular from this information that, for the first time in the country, the judiciary had reviewed and commuted sentences in response to the views and concerns expressed by an international organization. Thus, as promised during the last meeting of the Governing Body, the Appeals Court had reviewed the cases of nine defendants in its judgement of 12 May 2004. The Government member welcomed this development and considered that it should be appreciated. Moreover, he expressed satisfaction at the fact that the ILO Liaison Officer had been allowed to travel in the country and access all defendants. He finally called for providing further technical assistance to the Government of Myanmar in response to these welcome developments.

The Government representative of Myanmar stated that he would respond briefly to the points raised during the discussion. With regard to questions raised by a few members about the National Convention, he explained that Myanmar was a country in transition, striving to establish a modern, developed and democratic State. With this vision, the Prime Minister, General Khin Nyunt, had proclaimed on 30 August 2003 a seven-step Road Map which had been welcomed by countries in the region and beyond. The ninth ASEAN Summit and the seventh ASEAN+3 Summit, held in Bali in October 2003, had welcomed the Road Map as a pragmatic approach and an important programme. The first step of the Road Map, i.e. the reconvening of the National Convention, was being implemented. The National Convention was currently in session. On 20 May 2004, the National Convention had provided clarifications and conducted deliberations on the basic principles for the social sector, including the rights of workers. The deliberations also dealt with the basic principle of forming workers' organizations, a point to be discussed later on by this Committee.

With regard to questions raised about the criminal procedure and the legal proceedings in respect of three individuals whose conviction for high treason had an ILO dimension, he wished to emphasize that Myanmar had a very comprehensive and elaborate legal system and criminal procedural code. The Myanmar Penal Code, the Myanmar Criminal Procedure Code, the Evidence Act and the Myanmar Civil Procedure Code had been drawn up during the colonial years. Investigations, seizures and collection of evidence, legal proceedings and appeal procedures were carried out systematically in accordance with the aforementioned laws. Out of a total of nine individuals convicted of high treason in this case, five were found by the court to have been involved in criminal acts and four were found to be guilty of abetting the criminals. Their right to second appeal had already been explained during his first intervention.

With regard to the amendment of the Village Act and the Towns Act, he informed the Committee that his Government had been exploring ways and means to modify certain of their provisions and had consulted extensively with various parties in this respect. He added that his Government had promulgated Order No. 1/99 and its supplementary Order which had the force of law and, as the Committee of Experts had recognized, could provide a statutory basis for implementing Convention No. 29. This showed that the Government had taken the necessary steps to establish a sound statutory basis for the elimination of forced labour. He added with regard to comments made about the Penal Code that, as he had already mentioned earlier on, for the first time legal proceedings were under way based on article 374 of the Penal Code and that necessary action would be taken against those found guilty of violating the law. The Government representative protested against the abuse of the forum of the Standards Committee by Mr. Maung Maung and recalled that he had already delivered a letter concerning this matter to the Chairperson the previous day.

With regard to comments made by some members to the effect that progress in Myanmar's implementation measures and cooperation with the ILO was rather slow, he repeated that, in his view, steps taken by the Myanmar authorities, particularly in the past few months, had been at the very least prompt, timely and transparent. He added that the Government was doing its utmost to advance the process of cooperation with the ILO in its endeavours to implement the provisions of Convention No. 29. The Myanmar authorities were ahead of the formal signing and entry into force of the joint Plan of Action, as far as its implementation was concerned, by having already started to implement certain of its provisions. However, he emphasized that, given the delicate and sensitive nature of the issue and constraints, the Government had to adopt a step-by-step approach. This judicious and prudent approach did not mean that actions would be necessarily slow, but that progress should be achieved step by step and systematically. In conclusion, he observed that the process of dialogue and cooperation between Myanmar and the ILO had been working very well until now and he assured the Committee that the Government would continue this process of dialogue and cooperation.

The Employer members noted that, for the last four years, the Committee had been holding a serene discussion on a matter which could give rise to disquiet as it did not concern a minor matter but rather fundamental human rights. They observed that the Government had never denied the existence of forced labour in the country and had promised steps in numerous discussions on this issue. However, the effective implementation of these promises depended in the end on the Government itself. In this year's discussion, the Employer members had noted some progress but also some worrying steps backwards. For instance, the Government representative's statement that Order No. 1/99 and its supplementary Order had force of law could be seen as implying that there was no need for amending the Village and Towns Acts. Such an assertion would be very dubious since these Orders were in contradiction with older laws allowing and, indeed, calling for forced labour, which had to be repealed in order to clarify the state of the law. They also explained that the Conference had decided that the Committee would be examining this case every year in its resolution of 2000 which was binding upon the Committee. Turning to the conduct of other governments, the Employer members observed that the sanctions that had been adopted 16 years ago had not achieved any results and any adverse effect that they might have caused had been passed on to the people of Myanmar. It seemed that the governments did not have a clear plan as to what should be done in this respect. The Employer members therefore considered that the ILO should continue alone, in the absence of a strategic partner. They emphasized that the ILO had achieved remarkable results in this case but more needed to be done. The Plan of Action was a great achievement and its implementation was necessary. The Employer members expressed the hope that the Myanmar authorities would gain awareness of the fact that the abolition of forced labour would be to the benefit of all and, in particular, the country and its people.

The Worker members stated that they did not accept the criticism directed by the Government representative of Myanmar at Mr. Maung Maung's intervention. The debate confirmed the initial observations regarding the gravity of the situation in Myanmar and the continued non-observance by that Government of the recommendations of the Commission of Inquiry as well as the Committee of Experts. The practice of forced labour imposed on the population including in the domains of road construction, the use of child soldiers and civilians for mine detection, was extremely poignant and worrying. The recommendations of the Commission of Inquiry had, in the final analysis, to be respected and adhered to. The Burma Government had to: revise the laws covering certain crimes; define what it meant by "forced labour"; disseminate such a definition to the civil and military authorities as well as to the population at large; provide in its budgetary line the necessary funding allowing for the execution of needed work by means other than forced labour. Furthermore, the Convention No. 29. Implementation Committee established by the Government had to report on how it examined complaints presented. The Liaison Officer had also to be able to follow on the examination of complaints, submit cases to tribunals and propose solutions. These competencies were initially attributed to the Facilitator in the Action Plan established in the preceding year. However, the implementation of the aforementioned Plan of Action depended largely on the evolution of the political and legal situation in the country. In view of the above, the Worker members requested the Government to make an official declaration confirming that contact with the ILO or the possession of information provided by the ILO did not constitute a criminal offence. The Government was also requested to confirm that contact with third parties on matters of concern to the ILO would not be subject to punishment. Such a declaration by the Government was to be published and disseminated by appropriate means. The Worker members equally requested that the Supreme Court of Myanmar issue a judgement in due form on the status of the nine condemned persons and to immediately liberate the workers who were sentenced following their contact with the ILO and trade unions. The Government was also to clarify the notion of "transportation for life".

Finally, in order to create a political climate conducive to the implementation of the Plan of Action, the Government had to, as a priority, release Miss Aung San Suu Kyi; re-open the offices of the National League for Democracy and annul all the restrictions imposed on the National Convention participants. If the Government was non-responsive to the Worker members' requests before November, they intended to seize the Governing Body in order for the latter to stress the call previously made to member States on the basis of article 33 of the ILO Constitution.

Not reproduced:

Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29) by Myanmar

Documents D.5, D.5 (Add.) and D.5 (Add.2)

Brief summary of developments since June 2003

Latest developments since the 289th Session of the Governing Body (March 2004)

Appendices

Document D.6

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

1. Document GB.288/5

2. Document GB.288/5/1

3. Document GB.289/8

4. Documents GB.289/8/1 and GB.289/8/2

After taking note of the information provided by the Government representative, the Committee noted with deep concern the observation of the Committee of Experts which examined the measures taken by the Government to give effect to the recommendations of the Commission of Inquiry. The Committee of Experts had noted in its observation that the three main recommendations of the Commission of Inquiry were still to be implemented. In spite of the Government's assurances of its good intentions, the measures taken had not brought about significant progress in actual practice and forced labour continued to be exacted in many parts of the country. No person responsible for imposing forced labour had ever been prosecuted or sentenced under the relevant provision of the Penal Code. In view of the slowness of progress, the Committee of Experts had expressed the hope that the process of dialogue and cooperation which had developed between the ILO and the Government could offer a real chance of bringing about more rapid and concrete progress, in particular through the implementation of the Plan of Action.

In this regard the Committee had to note its grave concern at the fact that three persons had been convicted of high treason, including on grounds of contacts with the ILO. The Committee was further deeply concerned that although on appeal the Supreme Court had commuted the death sentences, it had failed to bring clarity on this crucial point, despite the earlier assurances of the Government that contacts with the ILO could not be considered illegal in Myanmar. The Committee also expressed its concern at the freedom of association issues raised by the Supreme Court's findings. It joined the Governing Body in endorsing the recommendations put forward by the informal facilitator as regards the grounds for convicting the three persons and the need to release them. It agreed that this situation clearly was not one in which the Plan of Action could be credibly implemented.

The Committee had also taken note of the information provided by the Liaison Officer ad interim on his activities. It noted with appreciation the continued cooperation extended to the Liaison Officer by the Government and the freedom of movement that he enjoyed. It considered the fact that individuals were lodging complaints concerning forced labour with the Liaison Officer in increasing numbers, demonstrating the usefulness of the ILO presence. However, the Committee had to note with concern that the response to the individual allegations so far raised was inadequate and that to date not a single one of these allegations had been verified by the authorities nor had anyone so far been prosecuted for illegally imposing forced labour. This cast serious doubt on the willingness of the authorities to take the concrete steps necessary to ensure the elimination of forced labour in practice.

In that respect, reference was made to the fact that certain forms of forced labour referred to by the Commission of Inquiry such as work on infrastructure projects, using forced labour, forced recruitment of children and even the use of persons as minesweepers were still in use. The dissemination of information in relevant languages also left much to be desired.

The Committee took due note of the assurances provided by the Government representative that a further review by the Supreme Court would take place which would, inter alia, clarify the question of the legality of contacts with the ILO. The Committee was of the opinion that the Government now had a final opportunity to give practical effect to these assurances and to the recommendations of the informal facilitator. It noted that the Governing Body at its next session should be ready to draw the appropriate conclusions, including reactivation and review of the measures and action taken including those regarding foreign direct investment, called for in the resolution of the International Labour Conference of 2000, unless there was a clear change in the situation in the meantime.

Finally, the Committee recalled that the Government would have to supply a detailed report for examination by the Committee of Experts at its next session on all the steps taken to ensure compliance with the Convention in law and in practice.

Not reproduced:

Observation of the Committee of Experts on the Application of Conventions and Recommendations on the observance of the Forced Labour Convention, 1930 (No. 29) by Myanmar

Documents D.5, D.5 (Add.) and D.5 (Add.2)

Brief summary of developments since June 2003

Latest developments since the 289th Session of the Governing Body (March 2004)

Appendices

Document D.6

Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)

1. Document GB.288/5

2. Document GB.288/5/1

3. Document GB.289/8

4. Documents GB.289/8/1 and GB.289/8/2