Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

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 reaffirmed that eliminating the practice of forced labour in his country was an important goal set by the Government of Myanmar for the people, and equally shared by the ILO and the international community. Sincere efforts had been made to this end in close cooperation with the ILO, particularly with the ILO Liaison Officer. While relative progress had been achieved, current socio-economic conditions were not conducive to this goal. Time was needed to produce the desired result and the situation had to be looked at objectively and constructively.

Turning to some of the developments since this Committee’s session in June 2009, he wished to highlight the extension of the Supplementary Understanding (SU) between the Government of Myanmar and the ILO for another year following the visit of the ILO delegation from 17 to 24 January 2010. This extension reflected the appreciation and support for the work of the ILO by the Government of Myanmar and its commitment to eradicate forced labour in the country. With regard to the complaints mechanism under the SU, he stated that the Liaison Officer’s report recognized his Government’s full cooperation with the complaints mechanism through the Government Working Group for the Elimination of Forced Labour (the Working Group). Timely responses to the complaints submitted under the SU and the facilitation of training and awareness-raising activities, including the training for military personnel, would not have been possible without his Government’s commitment. Movement of the Liaison Officer had also been facilitated.

Concerning the actual extent of the forced labour situation in the country, the speaker pointed out that only 196 alleged cases of forced labour had been submitted to the Working Group from February 2007 to 17 May 2010; 125 of those had been investigated and met with solutions proportionate to their gravity. The results of the investigations on 35 cases had been transmitted to the Liaison Officer. Highlighting that Myanmar had a population of 58 million today, he considered that 196 cases over a three-year period for such a population could not be regarded as widespread. Without intending to suggest that the practice of forced labour was acceptable or tolerable, the statistics and analysis of the issues showed that forced labour was not widespread in the country. While problems remained at the local level, the Government was taking necessary measures to solve them.

Turning to the need for raising awareness about forced labour and its prohibitions, he indicated that a total of 13 awareness-raising activities had been successfully conducted since June 2009, for state/division and village authorities and representatives of military units, as well as UN and INGO field staff. The last workshop had been held in Pegu with the participation of administrative authorities from 14 townships in the area, the township police force and representatives from the Ministry of Defence, the Ministry of Immigration and Population and the Ministry of Labour. More activities would be carried out in the future so that more constituents would be aware of their rights, obligations and consequences concerning forced labour. The simply worded brochure explaining the law on forced labour, the SU and the complaint mechanism was presently being printed and distributed.

With regard to the question of under-age recruitment, the speaker recalled his Government’s statement at the 307th Session of the Governing Body (document GB.307/6) that parents, guardians or relatives could file complaints on under-age recruitment directly to any recruitment centre or military establishment. The military authorities were fully prepared to receive and follow-up on complaints. At the same time, the authors of a complaint may also resort to the SU complaints mechanism and in this regard there was no restriction on the part of the authorities. While being aware of some incidents of under-age recruitment at the local level, these were neither prevalent nor systematic, and should not be generalized. The Committee for the Prevention of Military Recruitment of Under-age Children was actively engaging in poster campaigns, training of military personnel, monitoring of the recruitment process, taking action on perpetrators and, more importantly, the speedy and steadfast releasing of proven under-age recruits. It was regularly providing information on the progress of its work to the relevant UN agencies and would continue to pursue its objectives, which included finalizing a Plan of Action in close cooperation with, among others, UNICEF and UNHCR.

While expressing appreciation to the Liaison Officer for his transparent and cooperative manner in sharing with the Government the draft report to this Committee, the speaker declared that some of the views and approaches expressed in the report were neither objective nor acceptable. Some of the information in the report was outside the mandate of the Liaison Officer and outside the purview of the SU. In future, the Working Group and the Liaison Officer might need to interact more in order to obtain a better understanding of the modus operandi of the Liaison Officer.

The speaker concluded by expressing the conviction that the Government of Myanmar would spare no efforts in attaining the goal of eliminating forced labour.

The Employer members expressed the view that, while some small positive steps could be seen, the situation in Myanmar remained fundamentally unchanged and that the Government was quite far from the abolishment of forced labour. Responding to the Government’s statement that change would take time due to the socio-economic conditions of the country, they indicated that, given the duration of these issues, it was time to overcome these obstacles. The Employer members welcomed the Liaison Officer’s report, and stated that it did not exceed his mandate. The work of the Liaison Officer was growing and his office was understaffed. The Employer members noted with regret that the visa application for an additional staff member had not yet been approved, and urged the Government to do so.

With regard to the elimination of forced labour in both law and practice, the Employer members stated that substantial problems remained. Forced labour involving the military continued at all levels, with an increase of complaints concerning the recruitment of minors into the military, in addition to the intimidation, harassment and imprisonment of those filing complaints in this regard. Examinations of complaints concerning the recruitment of minors should be included in the Liaison Officer’s mandate. In addition, it appeared that there was conclusive evidence of the systematic imposition of forced labour by military and civil authorities, particularly the submission by the International Trade Union Confederation (ITUC) to the Committee of Experts in 2009 indicating that more than 100 Order “letters” for the requisition of forced labour had been issued between December 2008 and June 2009. Turning to the Village Act and Towns Act, the Employer members asked when these statutes would be repealed.

While substantial problems remained, small signs of progress could be seen in the Liaison Officer’s report including: the third extension of the Supplementary Understanding (SU); the positive response of the Working Group to training and awareness-raising activities; the relatively timely response to complaints filed through the SU through the Working Group; the involvement of the Ministry of Defence in the delivery of training to military personnel on the law regulating under-age recruitment; the planned publication of a brochure on the SU and the procedures to file a complaint; the prosecution of two military officers in connection with forced labour (representing only a small proportion of necessary prosecutions); and the release of 14 out of 20 persons imprisoned relating to procedures under the SU, though the remaining six had yet to be released. Despite these positive signs, there was still a fundamental lack of civil liberties in Myanmar, in particular, the right to freedom and security of the person, freedom of opinion and expression, freedom of assembly and association, the right to a fair trial by an independent and impartial tribunal and protection of private property. Furthermore, there was still a substantial climate of fear and intimidation of citizens, including the continued house arrest of Aung San Suu Kyi. Those were the root causes of forced labour, child labour, recruitment of child soldiers, discrimination and the absence of freedom of association.

With regard to the Government’s statement that the number of complaints was low given the large population of Myanmar, the Employer members expressed the view that this low number might be due to a lack of access to the complaints mechanism and because of pressure felt by the population not to file a complaint. A number of complaints of trafficking in persons for the purpose of forced labour had been deemed not receivable by the Working Group and referred to the Ministry of Home Affairs. Forced labour in Myanmar needed to be addressed holistically, and the Government was strongly urged to receive cases of trafficking for the purpose of forced labour without delay.

Turning to the recently adopted Constitution, the Employer members noted that the qualifications contained in the article banning forced labour raised questions regarding its conformity with Convention No. 29. The Convention must be fully and completely implemented in law and in practice. The Government remained far from applying the measures recommended by the Commission of Inquiry that, for example, legislative texts, particularly the Village Act and Towns Act, should be brought into conformity with the Convention, the authorities should cease to impose forced labour and the sanctions provided for imposing forced or compulsory labour be strictly applied. The implementation of those recommendations would be guaranteed if the Government took action in the four areas identified by the Committee of Experts in its 2009 observation; yet, the matters that needed to be addressed remained unresolved.

The Employer members urged the Government to provide full and detailed information as an unequivocal sign of its genuine willingness to cooperate with the Committee and the supervisory bodies. Transparency and collaboration with the Liaison Officer was essential. The Government was reminded that the agreement on the SU and the creation of a complaints mechanism did not relieve it of its obligations under Convention No. 29. The Government needed to make tangible improvements in national legislation and provide sufficient funds so that voluntary paid labour could replace forced labour in the civil and military administration to demonstrate its unambiguous willingness to combat forced labour and bring an end to the climate of impunity. The situation in Myanmar had persisted far too long, particularly as it had ratified Convention No. 29 over 50 years ago and the Government of Myanmar needed to end forced labour.

The Worker members recalled that the discussion was part of the follow-up to the conclusions and recommendations of the Commission of Inquiry established by the Governing Body in 1997, which had concluded that the Government of Myanmar was constantly and systematically violating Convention No. 29 and which had urged it to take three sets of measures. Firstly, it had requested that the country’s legislation be brought into line with Convention No. 29. On that point the Government was still not prepared to repeal either the Village Act or Towns Act, even though it claimed that they were not applied in practice. There was every reason to believe that repealing the laws would, in any case, no longer be enough, as article 359 of the new Constitution, which banned forced labour, provided for an exception in the case of work imposed by the State in the interest of the people, thereby opening the door to every kind of forced labour. Secondly, the Commission of Inquiry had called for the adoption of specific measures guaranteeing that the military authorities would no longer impose forced labour. Both the Committee of Experts and the Commission of Inquiry had repeatedly made it clear that the civilian and military authorities, and the population at large, needed to be given precise instruction to that effect. A number of activities had been carried out which marked a degree of progress, but the Government must undertake to provide more information, conduct a more coherent and systematic public awareness campaign, distribute leaflets on the subject in all the local languages and declare unambiguously that it was prohibiting all forms of forced labour. The Worker members also emphasized that the budget for recruiting paid workers in the place of unpaid forced labour was still inadequate or was not adequately utilized. The machinery for handling complaints was useful but its effectiveness was limited by the poor facilities available to the Liaison Officer and his limited sphere of action, by the reprisals suffered by victims who lodged complaints and by the refusal of the local authorities to use the machinery. As a result, civil and military authorities continued to impose forced labour systematically throughout the country. The third issue raised by the Commission of Inquiry concerned the application of sanctions. Although the Penal Code provided for sanctions against people who imposed forced labour, not one of the complaints lodged in 2009 under the Supplementary Understanding had led to charges being brought and only administrative sanctions had been imposed in the cases of minors being recruited by military personnel. This was a source of considerable concern, especially where military personnel were implicated. Although the Liaison Officer played a vital role in helping to do away with forced labour, it was necessary that the Government cooperate fully. Much remained to be done towards applying the Convention.

Another spokesperson for the Worker members also felt that the present case should not be reviewed in a historical vacuum and wished to assess the progress that the Government had made with respect to the Conference Committee’s conclusions of 2009. These seven conclusions had not been effectively or significantly implemented by the Government, namely bringing the relevant legislative texts, in particular the Village Act and the Towns Act, into conformity with the Convention; amending paragraph 15 of Chapter VIII of the new Constitution; ensuring the total elimination of widespread forced labour practices; ensuring that perpetrators of forced labour be prosecuted and punished under the Penal Code; issuing an authoritative statement at the highest level clearly confirming the Government’s policy for the elimination of forced labour and its intention to prosecute perpetrators; approving a simply worded brochure in accessible languages on the functioning of the SU; and eliminating problems in the physical ability of victims of forced labour or their families to complain and immediately ceasing the harassment, retaliation and imprisonment of individuals who used, or facilitated the use of, the complaints mechanism. Special sittings for this case had been held for a decade, and there continued to be substantial non-compliance with the Committee’s conclusions, as well as the recommendations of the Commission of Inquiry. This persistent non-compliance challenged and affronted the supervisory function of the ILO and the ILO Constitution.

Referring to the conclusions of the Commission of Inquiry, the Worker members emphasized that necessary budgetary allotments needed to be made to assure the contracting of voluntary labour. The Committee of Experts, in its 2009 observation, stated that any budgetary allocations for this purpose were not adequate or not adequately utilized. Therefore a lack of progress was due to a lack of political will, and not because of resource constraints. Turning to the need for criminal prosecution of the intellectual and material perpetrators of forced labour practices expressed in the Commission of Inquiry’s conclusions, the Worker members noted that the Committee of Experts, in its 2009 observation, had indicated that none of the complaints assessed and forwarded by the Liaison Officer to the Working Group had resulted, in 2009, in a decision to prosecute fully and convict criminally perpetrators of forced labour. This included a case where the explicit recommendation by the Liaison Officer for criminal prosecution was rejected. While the Government’s agreement to continue the SU was favourable, the Government continued to undermine its effective implementation. The Committee of Experts had concluded that the Government persisted in imprisoning facilitators of complaints, and that complainants were subject to detention, harassment and judicial retaliation. In a number of cases, complainants chose not to pursue their claims out of fear of such reprisals.

The Worker members recalled the 2007 decision of the Governing Body to defer seeking an advisory opinion from the International Court of Justice (ICJ) on this case until the necessary time, and that the question for the ICJ could be whether the Government’s cooperation with the Commission of Inquiry’s recommendations “met the relevant threshold”. Three years later, the Government was nowhere near the threshold, and this Committee should assume responsibility for the undermining, by the Burmese Government, of the supervisory system.

The Government member of Spain, speaking on behalf of the Government members of the Committee member States of the European Union and of the Government members of San Marino, Switzerland and Norway, expressed concern about the critical human rights situation in Burma/Myanmar, as reported by the Liaison Officer, the United Nations Special Rapporteur on the situation of human rights in Myanmar, as well as the UN Human Rights Council and the UN General Assembly. The authorities of Burma/Myanmar should take steps to bring about peaceful transition to a democratic and civilian system of government and to make the planned elections credible, transparent and inclusive. The political and socio-economic challenges facing the country could only be addressed through genuine dialogue between all stakeholders, including ethnic groups and the opposition. The speaker called upon the Government to release all political prisoners and detainees, including Aung San Suu Kyi, and expressed grave concerns about the non-compliance by Burma/Myanmar with Convention No. 29.

The speaker welcomed certain positive steps taken by the Government of Burma/Myanmar, such as the renewal of the trial period of the SU complaints mechanism; the publication and distribution of the simple-worded brochure, in local languages, setting out the law against forced labour and the complaints mechanism under the SU; and the proposals that the Penal Code and Military Regulations on forced labour incur imprisonment of military personnel for the recruitment of minors. The speaker urged the Government of Burma/Myanmar to build on these steps by ensuring that proposed amendments to the laws and regulations were put in practice.

Full compliance with Convention No. 29 was far from being achieved. It was deeply regrettable that persons who had used the complaints mechanisms in order to denounce forced labour were imprisoned. This was contradictory to the Government’s own commitment under the SU and, as had been indicated by the ILO Governing Body, would undermine the progress made to date. Therefore, imprisoned complainants should be released. The authorities were urged to put an end to the recruitment and use of child soldiers, and to pursue their collaboration with the Special Representative of the Secretary-General for Children and Armed Conflict. He expressed deep concern that complaints against serving military personnel were difficult to pursue, especially in light of reports of their use of forced labour for porterage and sentry guards. Finally, the speaker called upon the authorities to respect their commitment and reaffirmed the importance of the cooperation between the authorities of Burma/Myanmar and the ILO.

The Worker member of Malaysia indicated how the continued situation of forced labour in Burma/Myanmar was having a negative impact on the member countries of the Association of Southeast Asian Nations (ASEAN), and in particular on workers and trade unions. Emigration to avoid forced labour was a major contributing factor to the presence of more than two million migrants from Burma in Thailand, nearly 200,000 in Malaysia and undocumented numbers in Bangladesh. The social and legal issues involved, and the complex situation with respect to the Burmese migrant workers, were a huge financial and political drain on governments, and the workers’ organizations in Thailand and Malaysia had to deal with the impact of unscrupulous employers’ practices taking advantage of these migrants. Highlighting the continuing exaction of forced labour in North Arakan from hundreds of Rohingya villagers of Maungdaw Township, to build a fence and check posts along the Bangladesh border, he indicated that forced labour depriving the poor from their wages had been the primary root cause for emigration to Bangladesh. While the ILO and the broader international community had been trying to end human trafficking, the Government of Burma/Myanmar seemed to be doing the reverse. He concluded that the continuing forced labour and denial of fundamental rights were driving workers from Burma to ASEAN and South Asian countries, weakening the social, economic and security conditions in these countries. If Burma wanted to be given due respect as a partner in ASEAN, its Government had to make the necessary changes to end forced labour.

The Government member of Thailand welcomed the continued cooperation and dialogue between the Government of Myanmar and the ILO. The developments within the last year were encouraging, namely the functioning of the complaint mechanism, training and awareness-raising activities, operational field missions, consultations between the Liaison Officer and the Working Group and the extension of the SU. The Myanmar Government had responded in a reasonably timely manner to complaints that had been lodged under the SU and progress was made regarding underage recruitment in the military. The Government should be encouraged to continue this positive trend in partnership with the ILO to ensure the protection of complainants, facilitators and others associated with the filing of complaints. Awareness raising was a key element in addressing forced labour and it was crucial that state authorities and the general public be fully aware of the national laws prohibiting forced labour and the complaints mechanism. The Government’s agreement on the final layout of the brochure on this mechanism, which would soon be available to the public was to be welcomed. Wide-ranging distribution of the brochure was necessary, especially in rural areas and in areas with a high number of reported complaints. It was apparent that Myanmar was willing to work with the international community, although more still needed to be done. The Government of Thailand stood ready to support and cooperate with Myanmar on this matter.

The Government member of Norway aligned herself with the statement made by the Government member of Spain indicating that, while some positive steps had been made, concern about the human rights situation and the lack of compliance with Convention No. 29 remained. Improvements of the legal framework needed to be accompanied by real efforts on the ground, and the ILO should be given unrestricted access to verify these efforts in practice. The speaker then drew attention to the situation in the states dominated by ethnic minorities, where armed conflicts and tensions made the population particularly vulnerable to forced labour and the recruitment of child soldiers. She urged the Government to allow access by international experts to these areas in order to verify compliance with national legislation and international commitments by Myanmar.

The Worker member of Japan referred to the information from a fact-finding mission conducted in February 2010 by a Japanese non-governmental organization to refugee camps along the Thai–Burmese border, which indicated that all new refugees were victims of forced labour exacted by the Burmese army. She also referred to the death of a 15-year-old child soldier in Pyontaza in May 2010, who was killed for refusing to join the army and she expressed the view that this death was a by-product of the army’s policy whereby soldiers must fulfil recruitment quotas. The resolution adopted by the International Labour Conference in 2000, which recommended that all member countries review their relations with the Government of Burma, had not been properly implemented. She noted that according to the report of the Burmese National Planning and Economic Development Ministry, by March 2010, the pledged amount of foreign direct investment in the country exceeded US$16 billion. This was a significant increase from last year, largely due to investment in the oil and gas sector. The Government was heavily dependent on the exports from this sector, accounting for more than 40 per cent of the country’s income. Thailand, Singapore and China are the top three countries making direct investment to Burma. This investment served to support the Government and contributed to maintaining the situation of forced labour. She urged governments and employers making investments in Burma to review their relations with the country. Referring to the conclusions of the Selection Committee of the International Labour Conference in 2006, she called for the establishment of a reporting mechanism on steps taken by international institutions, governments and organizations of employers and workers to implement the International Labour Conference Resolution of 2000. She also urged the Government to release Aung San Suu Kyi and other political prisoners.

The Government member of the United States commended the ILO, in particular the Liaison Officer and his deputy, for their excellent work, despite the difficult circumstances they often faced. It was now ten years ago that the International Labour Conference had adopted the unprecedented measures available under article 33 of the ILO Constitution in an attempt to secure Burma’s compliance with the recommendations of the Commission of Inquiry relating to long-standing, methodical and gross violations of Convention No. 29. Recalling the three specific and clear recommendations made by the Commission of Inquiry, she noted, like some previous speakers that, since the last session of the Conference, there had been a number of steps forward. She encouraged the Government to continue and increase its efforts and urged it to ensure that the simply worded brochure on the complaints mechanism be translated into other local languages and broadly disseminated particularly in rural areas. Notwithstanding these positive steps, continuing and serious deficiencies remained, such as evidence of continuing forced labour throughout the country, the limited reach of the Supplementary Understanding and the discouragement of Burmese citizens from filing complaints, as well as retaliation, including imprisonment, against persons connected with the complaint mechanism. The legislative texts had still not been amended and penalties against forced labour remained inadequate particularly in cases involving military personnel. It was profoundly regrettable that the recommendations of the Commission of Inquiry had still not been implemented and much remained to be done on an urgent basis. Sustained action at all levels was therefore necessary to eliminate forced labour in Burma. The Committee of Experts had identified the types of concrete actions to be taken by the Government to this end and the ILO was willing and able to help it achieve the necessary results. It was incumbent upon the Government to continue to avail itself of the expertise and the assistance of the ILO, and it should take steps to permit additional staff resources so that the ILO Liaison Office in Burma could sufficiently meet the growing demands placed on it. This included issuing without further delay the visa for an international staff member. The Liaison Office should also be allowed to address all situations that fell within the scope of forced labour as defined by Convention No. 29. Only a truly democratic government could effectively guarantee its citizens their human and workers’ rights. She urged the Government to release all political prisoners and detainees, including Aung San Suu Kyi, and to engage in a genuine, open and inclusive dialogue to find a lasting solution to the problem of forced labour in Burma.

The Government member of Japan commended the ILO, including the Liaison Officer, on its efforts to improve the situation regarding forced labour in Myanmar, and noted some positive results. He particularly commended the willingness of the Government of Myanmar to cooperate with the ILO and the efforts by the Government and the military to address the issue of child soldiers. However, it was regrettable that forced labour by the military could still be found and that reports of cases of detention and punishment of complainants and facilitators continued. Greater efforts were needed on the part of the Government, including at its highest level, to cooperate closely with the military, to ensure that the central government’s policy on the elimination of forced labour was effectively thoroughly implemented on the ground. As awareness-raising activities were essential, he expressed the hope that the Government of Myanmar would continue to implement such activities and urged it to start the actual distribution of the simply worded brochure as soon as possible. Given the increased workload on the ground, he requested the Government to respond positively to visa applications for new international staff members.

Lastly, Japan reiterated its call on the Government of Myanmar to release all prisoners of conscience in advance of the national elections expected this year, and that the elections would take place in a free and fair manner with the participation of all parties concerned. In order to realize such elections, it was also essential that freedom of association be guaranteed. In this connection, Japan requested that the Myanmar Government do its utmost in cooperation with the ILO.

The Worker member of the Philippines noted that, in his report, the Liaison Officer had mentioned a number of positive steps that the Government had taken with respect to the implementation of the Supplementary Understanding and the extension of its validity, but also that no progress had been made regarding the main recommendations of the Commission of Inquiry. The Conference Committee had been discussing this case for over a decade and it was regrettable that the Government of Myanmar was still not delivering on its promises. Myanmar was a member of ASEAN, one of the main objectives of which, was to “strengthen democracy, enhance good governance and the rule of law and to promote and protect human rights and fundamental freedoms”. He supported the statement made by the Government member of Thailand calling for free, fair and all-inclusive elections, while even though these elections would not, in any case, eradicate forced labour in the country. In conclusion, he stated that it was high time for the Government of Myanmar to repeal the Village Act and the Towns Act and to amend the Constitution with a view to prohibiting all forms of forced labour, as a first step towards its eradication.

The Government member of Singapore welcomed the continued efforts made by the Government of Myanmar with regard to the observance of Convention No. 29, making more specific reference to the renewal for one year of the Supplementary Understanding and to the functioning of the complaints mechanism. He also welcomed the role of the Liaison Officer in training and awareness-raising activities, with the support of the Government. These activities seemed to have an impact on the enforcement of the legal provisions prohibiting forced labour. Furthermore, the speaker acknowledged the continued efforts made by the Committee on the Prevention of Military Recruitment of Under-age Children for the training of military personnel and communities, the discharge of soldiers found to be under age and the investigation of complaints on forced military recruitment. This demonstrated the seriousness of the Government in stopping under-age military recruitment. What was needed now was a change of mindset in the military. The improved relationship between the ILO and the Government of Myanmar had made it possible for the Government to discuss setting up a proper framework for the recognition of the principles of freedom of association and the right to collective bargaining. Draft legislation on trade unions would be submitted to the new Parliament after the upcoming elections. Finally, the speaker expressed the hope that the Government would facilitate the recruitment by the Office of an additional international staff member to help with the tremendous workload of the Liaison Officer.

The Worker member of the Republic of Korea stressed that trade and foreign investments were worsening the situation of forced labour and human rights in general in Burma. Indeed, many countries continued to trade with Burma, which was directly contributing to finance the military regime and contrary to the resolution adopted in 2000 by the International Labour Conference. In addition, many projects by foreign companies were conducted with the use of forced labour, forced relocation and various types of human rights violations. The speaker’s organization had repeatedly called on the Government of the Republic of Korea to stop investing in the oil and gas sector in Burma and engaging in trade with the Burmese military regime, without success however. She also recalled that the United Nations Special Rapporteur on the Situation of Human Rights in Myanmar had considered that extraction activities had directly resulted in an increase in human rights abuses committed by the military against the people living along a gas pipeline project, including forced labour overseen by the Burmese army. This project was also one of the major sources of income for the military junta, allowing it to ignore international pressure and democratic demands of the people of Burma. As investments in new projects escalated, the speaker once again requested ILO member States and constituents to fulfil their obligations under the International Labour Conference resolution of 2000 for the eradication of forced labour and human rights abuses in the country.

The Government member of New Zealand, speaking also on behalf of the Government of Australia, thanked the Liaison Officer for his report, which highlighted some positive developments. There were indications that the growing familiarity of local authorities with Convention No. 29 had resulted in a reduction of the use of forced labour by civilian authorities in some areas. The approval of the brochure on the complaints mechanism under the Supplementary Understanding was to be welcomed, but she expressed concern about the willingness of the Myanmar Government to address persistent forced labour problems. The Liaison Officer had encountered difficulties in reaching successful outcomes in cases involving forced labour by the military. She called upon the Myanmar authorities to act to prevent this practice. It was important that the mandate of the Liaison Officer encompassed all aspects of forced labour, and she called upon the Government to grant a visa to the new international staff member which would signal its commitment to the ILO’s work. As previous speakers, she urged the Myanmar authorities to use the opportunity of the planned elections to move the country towards a democratic future, and called upon the Government to release all political prisoners, including Aung San Suu Kyi, and those imprisoned due to association with the Supplementary Understanding complaints mechanism.

An observer representing the Federation of Trade Unions of Burma (FTUB), speaking on behalf of the ITUC, observed that although the information provided in the report by the Liaison Officer tended to indicate that the ILO mechanism worked, the violations still taking place in Burma were indicators that forced labour and forceful recruitment of child soldiers persisted contrary to Convention No. 29.

On 20 May 2010, the Democratic Voice of Burma reported that less than ten days ago a child had been killed for refusing to join the army. Tin Min Naing, aged 15 years, son of U Htay Win of San Phae village, War-Yone-kone unit, Nyaunglaybin township, Pegu division, was killed by soldiers when he and a friend, while looking for rats to eat, reached a sentry post at a bridge, and were asked to join the army. When the two friends refused, Private Moe Win (TA 41842) shot Tin Min Naing and hid the body under bushes in the stream. It was reported that the outpost had been manned that day by Corporal Kyaw Moe Khaing and Privates Moe Win (TA 41842) and San Ko Ko of the 2nd column, light Infantry Division 586. The family filed the murder case at Pyuntaza police station and the police commander of Nyaunglaybin township went to inspect the sentry post immediately. In March 2010, the Federation of Trade Unions Kawthoolei (FTUK) reported to the Liaison Office in Rangoon that forced labour was occurring in Karen state. It was understood that the Liaison Office had started planning an assessment and awareness-raising mission to take place in that area.

These two cases, one concerning child soldier recruitment and the other concerning forced labour involving from one to 200 persons, both took place in the Taungoo area of Bago division, despite the fact that this division was one of the locations in which an awareness-raising seminar had been led jointly by the ILO and the Ministry of Labour for local authority personnel and representatives of military units, according to the Liaison Office report. The events after this seminar were an indicator that the trainees at the Bago local authority level, who should be personally in charge of the troops in that area, either failed to implement what had been discussed at the seminars or did not have the authority to implement it. This might be an indicator that the Supplementary Mechanism did not work effectively in the Bago division and that there was no political instruction to implement what had been discussed at the seminar. It also meant that there were no enforcement mechanisms in place to hold the perpetrators accountable.

On 11 March 2010, the United Nations Special Rapporteur on the situation of human rights in Burma recommended that the UN should consider establishing a Commission of Inquiry into war crimes and crimes against humanity committed by the Burmese Government. Taken together, the reports of the UN Human Rights Council and the ILO demonstrated, first, a systematic abuse of human beings in Burma for the benefit of the ruling junta and, second, a lack of political commitment to change the system.

The Government reported that an election was forthcoming and that things would change after the election. However, this junta was the one that had refused to honour an election they had hosted in 1990. Having lost faith in the junta and their electoral process, the people of Burma, unless coerced, would not be voting in that election. The National League for Democracy that had won the 1990 election was not participating in the 2010 election, which was a farce. The next government would be composed of the junta without their military uniforms. This election and the new Constitution which allowed forced labour under section 359 would become yet another barrier facing the ILO in its mission to eradicate forced labour in Burma. Convention No. 29 would still be violated under the excuse that time was needed for the new government to settle down. It was clear that for a number of reasons, the junta itself and the delegations to the International Labour Conference which promised the ILO to eradicate forced labour were unable to deliver on their promise. Since the junta was unable to protect its own people, after over a decade of asking for the impossible and losing scarce resources, it was time, in the name of the people who suffered, to ensure that the ILO redressed its constructive approach and focused on responsibilities and protection.

The Government member of the Russian Federation stated that, being convinced of the need to eradicate forced labour in the world, his Government welcomed the extension, for a further 12 months, of the Supplementary Understanding trial period following an ILO high-level mission to Myanmar in January 2010. He expressed his Government’s sincere appreciation to the ILO Liaison Officer for his constant and self-sacrificing efforts to implement the above Understanding. As a result of these efforts, more than 100 complaints on alleged cases of forced labour had been examined by the competent bodies including the Ministry of Defence, and in a number of cases efficient measures had been adopted.

The speaker noted with satisfaction the carrying out of joint seminars and visits to remote regions of the country, the dissemination of the text of the Supplementary Understanding translated into the local language, the publication in central newspapers of articles describing the complaints mechanism and the agreement reached with the authorities about the publication of a special brochure on this subject. However, there was an evident need for the Government to take additional measures to eradicate forced labour, particularly at the local level. The extension and deepening of the constructive cooperation between the ILO and the Government constituted the most efficient mechanism in order to move towards the fastest possible resolution of the forced labour problem in Myanmar and the implementation of Convention No. 29.

The Worker member of Italy indicated that the move to recruit a new staff member of the Liaison Office with financing from the Government of Germany was a positive development, although additional measures were necessary like the opening of offices in other parts of the country. However, despite the availability of funding as well as the Government’s agreement and its undertaking to eradicate forced labour, the Government continued to stall any progress regarding the appointment of the new officer on the pretext of having to issue a visa. While investors never faced problems with their visas, the delegates to the Conference had to face insulting and evasive excuses year after year for the lack of implementation of the Government’s commitments. This was just one example of the delaying tactics of the regime, contrary to the spirit of cooperation that the authorities had repeatedly promised.

The brochure on the eradication of forced labour, despite being a positive step forward, had only been published in the Burmese language and not in ethnic languages as called for by the Committee of Experts, since forced labour was mainly prevalent in areas where the majority of the population read and wrote in their respective ethnic languages. In order to inform and support those who suffered the most from the practice of forced labour, information brochures should be translated into the main ethnic languages and illustrations should be included for those who could not read, as they were the most vulnerable to exploitation. It would be interesting to know how these brochures would be distributed as widely as possible. The stalling tactics of the authorities, including the delays in issuing visas, should no longer be regarded as legitimate excuses for the slow pace of progress. There had been more than enough time. The ILO and its constituents should evaluate the intentions of the authorities, and the ILO’s capacity to investigate and monitor forced labour should be strengthened.

The Government member of India expressed his Government’s satisfaction at the progress being made in the observance of Convention No. 29 by the Government of Myanmar as well as the ongoing cooperation between the Government and the ILO in this matter. Encouraging recent developments included most importantly the extension of the Supplementary Understanding for a further period of 12 months and the constructive dialogue that the ILO delegation to Myanmar had with the Government in January 2010. This could serve as an important basis in further strengthening the ongoing cooperation and help in the implementation of the provisions of the Convention. The awareness workshops jointly conducted by the Liaison Office and the Labour Department, and the publication of the Supplementary Understanding and a brochure on the law pertaining to forced labour by the Government had the potential to play an important role in eliminating the practice of forced labour. Finally, the mutually agreed mechanisms, including the complaints mechanism, were functioning properly.

The debate in the Committee should take place in a fair and transparent manner and focus on the matter in hand relating to the observance of Convention No. 29. Introduction of issues extraneous to the subject or unnecessary politicization of the debate would deviate the focus of the Committee from the merits of the case. India had consistently encouraged dialogue and cooperation between the ILO and the member States to resolve all outstanding issues. India had been and continued to remain strongly opposed to the practice of forced labour which was expressly prohibited under its Constitution. The speaker concluded by commending the ILO Director-General and his team for their efforts in assisting Myanmar to tackle the problem of forced labour.

The Worker member of France referred to another provision of the national legislation that required amendment, namely section 359 of the Constitution. That section provided for a number of exceptions to the prohibition on forced labour, and its wording rendered that prohibition ineffective. By allowing “work imposed by the Government in the general public interest” that constitutional provision reinstated the Towns Act and the Village Act. The speaker stressed that although the Constitution had been approved by more than 92 per cent of the voters participating in the referendum, the conditions under which that referendum had been held were very controversial. General recourse to forced labour could not be isolated from the general situation of human rights in Myanmar, which was characterized by systematic violations of rights and freedoms. Forced labour could, therefore, be eradicated only by instauration of democracy and the legislative elections that were to be held soon would serve as a test in this regard. A series of restrictive electoral laws had already been adopted, which would prevent the opposition from freely participating in that process. Myanmar had reached a crucial turning point, which should not be used by the authorities as an excuse for maintaining an intolerable situation but, on the contrary, allow it to prove its political willingness to eradicate forced labour. The international community should remain particularly attentive to future developments.

The Government member of China noted that the Government of Myanmar and the ILO had cooperated effectively since the last session of the Conference and there had been a certain progress in the elimination of forced labour. This included the extension of the trial period for the Supplementary Understanding, the efficient handling of complaints, the publication of a brochure on the elimination of forced labour and the corresponding legislation and the appearance of articles on the subject in the national press. The Government of China continued to consider forced labour as a fundamental violation of human rights, and it was to be hoped that the ILO would be able to maintain its technical assistance to Myanmar, notably in the form of cooperation projects on employment creation that could improve people’s quality of life. He trusted that the future would bring new projects aimed at eliminating forced labour in Myanmar.

The Worker member of Zimbabwe compared the anguish of the workers of Burma to that suffered in his own country, as attested by Commissions of Inquiry appointed for the two countries. He explained that although forced labour in his part of the world existed as a result of ingrained habits or wars and rebellions, and was mostly practised by private individuals and not at a large scale, forced labour in Burma was widespread, systematic and promoted and practised at all levels of the State by the military and civilian authorities. Forced labour in Burma took many forms, such as forcing villagers, including children, to grow food, build bridges and roads, construct and maintain army camps, build security fences, carry equipment for troops; forcibly displacing villagers from their land in areas where oil and gas infrastructure and pipelines were being construed and operated; putting prisoners to work in leg irons without wages, without access to medical treatment or other basics of life; forcibly recruiting child soldiers, in a context of the barbaric practice of human minesweeping; and forcing citizens to build and maintain tourism sites and facilities in larger cities like Mandalay and Rangoon, to enrich top military leaders whilst the soldiers suffered economic hardship. The military forced civilians into labour through intimidation, kidnapping and threat of arrest or bodily harm. This inhumane, degrading and back-breaking treatment also led civilians to lose wages and land, and many became sick from disease, malnutrition or exhaustion without medical assistance. All of these claims were backed by the extensive evidence submitted by the ITUC to the ILO, including copies of 100 Government Orders issued to village heads to gather workers from local communities for forced labour. As the Committee of Experts had concluded, this was conclusive evidence of the systematic imposition of forced labour, and it was conclusive evidence to which the Burmese Government had not even bothered to respond. It was about time that the Government undertook a real engagement to end the unsavoury use of systematic forced labour and start implementing the recommendations of the ILO supervisory bodies. A first and immediate step should be to ensure that the law prohibited forced labour.

The Government member of Cuba observed that the report of the Liaison Officer on the latest activities carried out by the ILO and the Government of Myanmar described the progress made towards the elimination of forced labour and the difficulties that remained to be resolved. He noted the statement of the Government of Myanmar outlining the steps that were being taken in that direction. It was clear that the results that had been achieved so far were the fruit of the ILO’s technical cooperation and of the bilateral dialogue with the Government. It was to be hoped that the technical cooperation and the open and unconditional dialogue between the Government of Myanmar and the ILO would be pursued, so that a proper analysis could be made of the conditions and circumstances prevailing in the country, as that was the only way to further the goals of Convention No. 29.

The Worker member of Pakistan observed that it was very sad and discouraging that in the twenty-first century, known as the age of reason, technological development and social justice, the military still used forced labour in Burma, which was a crime against humanity, after ten years of discussions on this issue. Nowhere was it shown that penalties had been imposed on those who had committed the crime of forced labour or that they had been brought to justice. Paragraph 8 of the report of the Liaison Officer referred to the difficulties encountered in obtaining proof of under-age recruitment and the hardship of the families who had to fetch their children from their regiments at considerable expense, leading them to sell their harvest in advance, borrow money or sell assets. In order to cope with the increasing workload, the capacity of the Liaison Office needed to be strengthened but despite the availability of funds from Germany, the Government had not granted a visa to an additional official. Those who helped the victims were themselves victimized. Paragraph 16 of the report of the Liaison Officer indicated that two lawyers who were active supporters of the Supplementary Understanding procedures had lost their licences to practise after their release from prison. In such circumstances, the speaker associated himself with the members who called for more action by the international community and the reinforcement of the Liaison Office, so that wider investigations could be carried out and appropriate penalties enforced against those who committed the crime of forced labour.

The Government member of Canada commended the Liaison Officer and his deputy for their continuing diligence and admirable work. Every year the Committee was confronted with the modest accomplishment that the Government of Myanmar offered to conform to its commitments to address issues of forced labour, including under-age military recruitment in Burma. In spite of the fact that the Understanding had been signed eight years ago and the Supplementary Understanding over three years ago, the pace of progress was frustratingly slow. While some positive steps which had been noted in the report of the Liaison Officer should be welcomed and encouraged, they were incremental and did not reflect a strong commitment by the regime to eliminate forced labour. There was an urgent need for more significant progress.

Areas remained where the Government’s failure to meet its commitments was fundamentally unacceptable and should be noted with greatest concern, notably the continued allegations of harassment of complainants, facilitators and their legal counsel as well as the refusal to receive complaints of human trafficking for forced labour. The speaker condemned any reprisals against complainants, particularly imprisonment, and called upon the Government to comply with its commitment to address forced labour in all its forms and provide support for the implementation of the full mandate of the ILO Liaison Officer. She also associated herself with other members who considered that the report of the Liaison Officer fell completely within its intended mandate. Finally, the speaker urged the Government of Myanmar to expedite the request for further assistance to manage the considerable caseload and meet demands, such as training and awareness raising, on an urgent basis. It was unfortunate and discouraging that the Government had to be urged once again to issue immediately the visa for an additional staff member and an update on the status of this question would be welcomed.

In conclusion, the speaker strongly urged the Government of Myanmar to take proactive and substantial steps to ensure compliance with Convention No. 29 throughout the country, including through the imposition of more meaningful penalties for all perpetrators of forced labour. The speaker also called on the authorities to release all political prisoners and detainees, notably Daw Aung San Suu Kyi.

The Government representative thanked those speakers who had made their interventions objectively and took note of their comments. Some of the interventions had been based on groundless information and were politically motivated. There were also some remarks that were not relevant to the work of the ILO. Some speakers had been referring to the country by its incorrect name. The official communications from the United Nations and its agencies addressed the country correctly as Myanmar, as this name had been recognized throughout the UN system. The importance and seriousness of the work carried out in the ILO should be reciprocated by the speakers. The use of inappropriate language did not serve any purpose, was not well intentioned and showed a lack of respect. A code of conduct should be enforced during the deliberations in this regard.

Some remarks had not been relevant to the work of the ILO. The Government of Myanmar rejected all undue comments and criticism concerning the home-grown political process. The destiny of Myanmar was to be decided by its own people. The democratization process was moving forward steadily and democratic elections would be held this year, as the fifth step in the road map to democracy. Laws necessary for multiparty general elections had already been promulgated. Over 20 political parties had been registered so far for the upcoming elections. The Constitution, approved by 92.48 per cent of eligible voters in Myanmar, would be the basis for the democratic society of the future. This clearly reflected the political will of the people.

The amendment of the Village Act and Towns Act had been explained repeatedly in previous sessions of the Conference. Under the Myanmar legal system, orders of the legislative authority had the force of law. This was the case for Order 1/99 and its Supplementary Order. Thus, in the Myanmar legal system the offending provisions of the two Acts had been put into dormant state or had even been annulled, as acknowledged by the Committee of Experts in the past. At the plenary session of the 98th International Labour Conference, the Government representative of Myanmar had mentioned that these conclusions were due to a misunderstanding as to the facts. He had taken the matter up with the Office and had provided explanations to the officials concerned.

The speaker concluded by adding that the representative of the FTUB and his friends were responsible for endangering and violating the security of the Myanmar people. The Government had concrete evidence that they were plotting, financing and carrying out several activities including bomb attacks in the country leading to loss of lives and numerous injuries. Such terrorists had no place in the work of the ILO.

The Employer members observed that the Government of Myanmar did not seem to appreciate the fact that it was not even close to abolishing forced labour. The Government should not be under the false impression that the Supplementary Understanding process was sufficient in itself. It was at best an internal process that should not absolve the Government from the obligation of full and complete implementation of policies and practices for the abolition of forced labour.

The Worker members concluded by asking for the immediate release of all trade union activists and political prisoners who had exercised their freedom of expression and fought against forced labour; the immediate discontinuation of harassment and detention of persons who filed complaints on forced labour; and the end of the impunity enjoyed by the perpetrators of forced labour. They recalled that it was essential to implement the recommendations of the Commission of Inquiry and to revise the provisions of the Constitution relative to forced labour. Moreover, the decisions taken in the past should be implemented, notably: the re-examination of the implementation of the 2000 Conference resolution; the request made to international institutions, governments and organizations of employers and workers to report on the steps taken in the framework of that resolution; the organization of a conference on best practices aimed at implementing the resolution; and the implementation of other international penal measures with a view to sanctioning those who exacted forced labour. To this end, the Worker members requested the Liaison Officer to focus on the implementation of the recommendations of the Commission of Inquiry and on the reinforcement of the means at the disposal of the ILO: increase in the number of offices and establishment of a network of facilitators in the country. Finally, the Worker members condemned and repudiated the statement of the Government representative with regard to the representative of the FTUB.

Conclusions

The Committee noted the observations of the Committee of Experts and the report of the ILO Liaison Officer in Yangon that included the latest developments in the implementation of the complaints mechanism on forced labour established on 26 February 2007 with its trial period extended, on 19 January 2010, for a further 12 months to 25 February 2011.

The Committee also noted the discussions and decisions of the Governing Body of November 2009 and March 2010. It further took due note of the statement of the Government representative and the discussion that followed.

The Committee acknowledged some limited steps on the part of the Government of Myanmar. It noted the further extension of the Supplementary Understanding for another year; the agreement for publication and distribution of an informative brochure on forced labour; certain activities concerning awareness raising of the complaints mechanism established by the Supplementary Understanding, including newspaper articles in the national language; and certain improvements in dealing with under-age recruitment by the military. The Committee was however of the view that these steps remained totally inadequate.

The Committee noted that despite these special sittings, none of the three specific and clear recommendations of the Commission of Inquiry had been implemented. These recommendations require the Government to: (1) bring the legislative texts in line with Convention No. 29; (2) ensure that in actual practice forced labour is no longer imposed by the authorities; and (3) strictly enforce criminal penalties for the exaction of forced labour.

The Committee also noted that the complaints mechanism reached only limited parts of the country and its functioning could be an indication that there had been any significant diminution in the use of forced labour.

The Committee emphasized the importance of the conclusions reached in its special sittings at the 97th and 98th Sessions of the Conference (June 2008 and June 2009), and again placed emphasis on the need for the Government of Myanmar to work proactively towards the full implementation of the recommendations of the Commission of Inquiry appointed by the Governing Body in March 1997 under article 26 of the Constitution. It also recalled the continued relevance of the decisions concerning compliance by Myanmar with Convention No. 29 adopted by the Conference in 2000 and 2006 and all the elements contained therein.

The Committee fully supported all of the observations of the Committee of Experts and the decisions of the Governing Body referred to above, and expressed the firm expectation that the Government of Myanmar moves with urgency to ensure that the actions requested are carried out at all levels and by all civil and military authorities.

The Committee strongly urged the Government to fully implement without delay the recommendations of the Commission of Inquiry and the comments and observations of the Committee of Experts. The Government in particular should:

(1) take necessary steps to bring the relevant legislative texts, in particular the Village Act and Towns Act, into line with Convention No. 29;

(2) ensure that legislation foreseen by paragraph 15 of Chapter VIII of the new Constitution is developed, adopted and applied in full conformity with Convention No. 29;

(3) ensure the total elimination of the full range of forced labour practices, including the recruitment of children into the armed forces and human trafficking for forced labour, that are still persistent and widespread;

(4) strictly ensure that perpetrators of forced labour, whether civil or military, are prosecuted and punished under the Penal Code;

(5) ensure that the Government makes the necessary budget allocations so that workers are freely contracted and adequately remunerated;

(6) eliminate the continuing problems with the ability of victims of forced labour or their families to complain and immediately cease all harassment, retaliation and imprisonment of individuals who use, are associated with or facilitate the use of the complaints mechanism;

(7) release immediately complainants and other persons associated with the use of the complaints mechanism who are currently detained;

(8) facilitate the production and wide distribution of the brochure in the ethnic languages;

(9) intensify awareness-raising activities throughout the country, including training to military personnel to end under-age recruitment; and

(10) actively pursue agreement of a joint action plan with the Country Task Force on Monitoring and Reporting in respect of children in circumstances of armed conflict, of which the ILO is a member, to address amongst other things under-age recruitment.

The Committee called for the strengthening of the capacity available to the ILO Liaison Officer to assist the Government in addressing all of the recommendations of the Commission of Inquiry, and to ensure the effectiveness of the operation of the complaints mechanism, particularly in respect of the urgent issuance of an entry visa for an additional international professional as a priority and without delay.

The Committee specifically called on the Government of Myanmar to take every opportunity, including through the continued use of all of the available forums, to increase the awareness of the people (the civil and military authorities as well as the general public) as to the law against the use of forced labour, to their rights and responsibilities under that law and of the availability of the complaints mechanism as a means of exercising those rights. An authoritative statement at the highest level would be a significant step in this regard.

The Committee regretted with serious concern the continued human rights violations in Myanmar, including the detention of Daw Aung San Suu Kyi. The Committee urged her immediate release as well as that of other political prisoners and labour activists.

The Committee called on the Government to investigate, without further delay, the allegations of forced labour orders and similar documents which had been submitted to the Committee of Experts and encouraged the Government to communicate to the Committee of Experts, for its next session, its findings and any consequential concrete actions taken. The Committee expected to be in a position to take note of significant developments at the next session of the Conference.

Not reproduced:

Document D.5

B. 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

C. Report of the Liaison Officer to the special sitting on Myanmar (Convention No. 29) of the Committee on the Application of Standards, and register of cases as of 17 May 2010

D. Conclusions adopted by the Committee on the Application of Standards in its Special sitting to examine developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) (International Labour Conference, 98th Session, June 2009)

E. Documents before the Governing Body at its 306th Session (November 2009) and conclusions of the Governing Body

F. Documents before the Governing Body at its 307th Session (March 2010) and conclusions of the Governing Body