Cas individuel (CAS) - Discussion : 2004, Publication : 92ème session CIT (2004)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Myanmar (Ratification: 1955)

A Government representative supported the proposals made by a group of countries from the Non-Aligned Movement regarding the Committee's methods of work. Some member States had been asked to appear before the Committee for two or three consecutive years which proved that there was a need for fair and objective criteria for the selection of cases. While the Government fully supported these proposals, it would not try to evade the issue of its observance of the Convention. He recalled that some members of the Committee had previously queried when a new Constitution would be drawn up. In this regard, he emphasized that Myanmar was a country in transition. With this vision, the Prime Minister, General Khin Nyunt, had proclaimed a seven-step Road Map on 30 August 2003. This Road Map 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 it as both a pragmatic approach and an important programme. The first step of the Road Map was the reconvening of the National Convention to lay down the basic principles for drafting a new Constitution. The speaker was pleased to inform the Committee that the National Convention was currently in session. The first step of the Road Map was thus being implemented. On 20 May 2004, the National Convention had held deliberations on the basic principles for the social sector, including the rights of workers. These deliberations had also dealt with the basic principle of forming workers' organizations. These basic principles would provide the framework for drafting detailed provisions in the process of drawing up the new Constitution.

The speaker recalled that workers' organizations that came quite close to the basic principles of the Convention already existed in the country. As an example, he mentioned the Myanmar Writers' and Journalists' Association. Its president, a well-known writer, had not been appointed by the Government, but freely elected by the members of the Association. The same applied to its secretary and other members of the Central Executive Committee of the Association. On a historical note, he stated that Myanmar writers had formed an association on 8 March 1944, during British colonial rule. It had been formed by writers of their own free will to look after their interests in the light of financial and other difficulties faced by most Myanmar writers at the time. In 1993, this Association was reconstituted as the "Myanmar Writers' and Journalists' Association" (MWJA). The same basic principles of independence and autonomy, non-compulsory affiliation, voluntary nature and the absence of intervention from central authorities had been preserved until now. The MWJA was an association of intellectual workers, freely formed by Myanmar writers and journalists. It was a nationwide confederation at the central level, with associations or branches at township or sub-township levels throughout the country. The Executive Committees at various levels were freely elected by members of their respective associations. Moreover, the MWJA was freely organizing a wide range of activities on its own. One noteworthy activity, peculiar to Myanmar, was the celebrating of Writers' Day. On Writers' Day, members of the MWJA organized lectures, talks and traditional gatherings of writers where junior writers paid homage and offered donations in cash and kind to senior veterans. Furthermore, the MWJA had contacts and cooperated with writers' and journalists' associations in other countries. The speaker believed that the MWJA was one of the organizations of intellectual workers that came quite close to the basic principles of the Convention. The existing workers' organizations such as the MWJA were the forerunners of trade unions, safeguarding and promoting the interests of workers as much as possible under prevailing circumstances. It was possible to further develop workers' organizations of a similar character, and take further appropriate interim steps. This was the preparatory work, leading to the formation of workers' organizations in accordance with the new Constitution and relevant laws of the country. The MWJA could well be a pilot project that could be instrumental in exploring ways and means to make further progress in this respect.

With regard to Myanmar's cooperation with the ILO, the speaker recalled the technical assistance provided with regard to the Convention in 1995 and 1996. In addition, the Government was fully cooperating with the ILO in the implementation of Convention No. 29. This cooperation had very much advanced, with a landmark agreement reached between the Government and the ILO on a Joint Plan of Action for the eradication of forced labour in the country. Similar cooperation could and should be extended to Convention No. 87. If the ILO was willing to assist in respect of Convention No. 87, this could open new possibilities for cooperation. In the meantime, the Government would frequently consult with ILO officials, including those from the International Labour Standards Department and the InFocus Programme to Promote the Declaration. He concluded by emphasizing that his Government believed in dialogue and cooperation. Name calling, blaming and censuring a member State which was doing its utmost to advance the cause of workers under the prevailing circumstances would not be helpful. Nor would any attempt to isolate or pressure a member State serve any useful purpose. He hoped that the Committee would understand Myanmar's constraints and appreciate the genuine good will and intentions of the Government as well as the aforementioned developments and significant steps taken by it.

The Worker members recalled that the case had been discussed 16 times in the last 23 years. They mentioned that the Committee of Experts' comments had been supplemented by information contained in the Committee on Freedom of Association Case No. 2268, in which a comprehensive and disturbing picture of the total absence of freedom of association in Burma emerged.

They observed that the Committee of Experts had felt "obliged to recall that it had been commenting on the Government's failure to apply the Convention, both in law and practice, essentially since its ratification 50 years ago". The pattern of abuse in Burma was unique, and the Government's failure to apply the Convention took place in the face of a concerted effort by the ILO standards enforcement machinery to encourage it to do so. The Committee of Experts had once again noted "with deep regret the total lack of progress in providing a legislative framework in which free and independent workers' organizations can be established". In addition, the Committee of Experts had taken note of the Government's contention that the country was in transition to democracy - a transition which the Worker members found hard to detect - and that it was doing its utmost to promote the rights, interests and welfare of workers, as well as to find ways to take the appropriate interim steps before the drafting of a Constitution. In this context, the Government referred to the workers' welfare associations as the forerunner of trade unions. Concerning the Government's contention that these associations were embryonic workers' organizations, the Committee on Freedom of Association had examined the matter in paragraphs 739-742 of its 333rd report (document GB.289/9, March 2004) indicating that at the very least such associations should enjoy guarantees of independence in order to be considered embryonic workers' organizations. The Committee on Freedom of Association had concluded after examining the information provided that these associations "are not substitutes for free and independent trade unions" (paragraph 742). Similarly, the Committee of Experts had reiterated that "these associations have none of the attribute characteristics of free and independent workers' organizations". The Committee of Experts had estimated that the "Government's continued insistence on the role of the welfare associations in respect of the application of the Convention, without any other real progress in this application, is simply an indication of the lack of seriousness given to the fundamental matters raised by the Committee over these many years".

The Worker members noted that the Government representative had informed the Committee, as he had during the special sitting to examine the observance of the Forced Labour Convention, 1930 (No. 29), that a discussion had already taken place on 20 May 2004 at the National Convention on the inclusion of freedom of association principles in the new Constitution, upon which new legislation could be drafted. They indicated that in fact they had no idea what exactly had been discussed in the National Convention. In regard to the National Convention, the Worker members recalled from the special sitting discussion that the international community, including the United Nations, had uniformly condemned the National Convention process. Ms. Aung San Suu Kyi remained under house arrest. The regime was so concerned about her influence that she was being prohibited from making any statement to the National Convention. There was no effective participation in the National Convention by the political party, the National League for Democracy (NLD), which had won 82 per cent of the parliamentary seats in the 1990 national elections, nor by any of the ethnic political parties that had won seats in those elections. Furthermore, there were no credible worker representatives among the 1,000-plus hand-picked participants. In addition, the fact that the ILO was not asked to provide advice in the drafting of any constitutional provisions protecting freedom of association at the National Convention, cast serious doubt on any claim by the regime that it intended to include freedom of association in a new Constitution. There were many examples of the ILO playing such a role at the request of a government, Brazil and Timor Leste among them.

The Worker members also recalled that many legislative decrees had been issued over the years despite the absence of a Constitution. The failure to do away with offending legislation and issue a new decree protecting freedom of association had always been a deliberate act of will on the part of the regime. However, even without such action and as the best way to demonstrate its good will, the Government could inform the Committee that it would not enforce any of the old colonial laws and military decrees that undermined freedom of association. It could even agree to recognize the right of Burmese workers to form and join organizations of their own choosing, such as the Federation of Trade Unions of Burma (FTUB), for the furtherance and defence of their interests inside the country. They observed, however, that the Committee knew what the regime thought of the FTUB General-Secretary. The Government had slandered him many times in the Committee and would probably do so again. But the Government could not plausibly argue that every Burmese worker associated with the FTUB was a terrorist. They stated that the Committee on Freedom of Association in paragraph 743 of its 333rd Report (Case No. 2268) indeed made a similar request after coming to the conclusion that any organization freely chosen by the workers would be considered to be unlawful by the Government. In the absence of legislation protecting freedom of association, the Committee on Freedom of Association had asked the Government to refrain from any acts preventing the free operation of any form of organized collective representation of workers, freely chosen by them to defend and promote their economic and social interests. The Committee on Freedom of Association's request "includes workers' organizations which operate in exile, since they cannot be recognized in the prevailing legislative context". They added that the Committee on Freedom of Association was clearly referring to the FTUB, which had been forced to operate clandestinely since its inception in 1991. The FTUB maintained structures both inside and outside the country. It was the effective voice of over 1.5 million Burmese migrants working in Thailand. But it also maintained underground unions in key industrial sectors in Burma proper, and operated in all the major cities of the country. It actively collected evidence of violations of workers' rights and monitored the denial of collective bargaining rights in industrial sectors, as well as evidence of forced labour, which it communicated to the ILO and to the international labour movement. FTUB members caught doing so, incurred the death penalty. The Government's propaganda apparatus regularly and virulently attacked the FTUB calling it an expatriate terrorist gang. The ICFTU itself had been accused of assisting and encouraging the FTUB to commit terrorist acts.

The Worker members recalled that the General-Secretary of the FTUB Mr. Maung Maung, had to leave the country at the time of the 1988 military coup, owing to his involvement in the democratic trade union movement. The Government had never denied that he was involved in trade union activity at his workplace during those years. He was under constant attack from the regime, which accused him of leading a terrorist organization, and he had been convicted of high treason in absentia. In paragraph 751 of its 333rd Report (Case No. 2268), the Committee on Freedom of Association had expressed its concern about the link between Mr. Maung Maung's alleged criminal activities and his trade union work. The Committee on Freedom of Association had requested the Government to provide all evidence, including copies of the court's decisions, illustrating that the grounds on which the criminal charges were pressed had no connection to his trade union activities. The Worker members supported the Committee on Freedom of Association's request and asked the Government to provide this information to the Committee of Experts for its review. They looked forward to learning the Committee of Experts' assessment of any evidence produced and whether it would conclude next year, as expected, that he was a victim of his legitimate trade union activity. They asked the Government once and for all to stop the accusations and threats against him and other FTUB leaders, and added that there were other worker activists under detention in Burma for legitimate trade union activity, including providing information to the ILO on forced labour. The Worker members raised the case of the three workers who were convicted of high treason for having contacts with the ILO and FTUB. The ILO Director-General in his letter of 2 June 2004 to the Minister of Labour expressed his serious concern about obvious freedom of association issues raised by the Supreme Court judgement against Shwe Mahn, Min Kyi and Aye Myint. The judgement clearly indicated that Shwe Mahn's major crime was his association with the FTUB. In fact it specified that he had already been sentenced to two years' imprisonment in 1990 on these grounds. Apart from the fact that these convictions raised preoccupying issues of double jeopardy, they cast light on the absurdity of the legal system in Burma. As long as the authorities failed to recognize legitimate trade union activities, trade unionists would be threatened by the highest criminal penalties, which was in blatant violation of freedom of association. The criminal character could spread to all presumed accomplices and could include all Burmese workers in contact with the FTUB. The case of these three trade unionists confirmed once again the utmost importance for the Committee to urge all organs of the Government, including the judiciary, to implement the Committee on Freedom of Association's recommendation in paragraph 743 of its 333rd Report (Case No. 2268) to refrain from any act preventing the free exercise of FTUB activities. Finally, the Worker members said that it was clear that the accused had not benefited from the assistance of legal counsel of their own choice nor had they had the benefit of a public hearing in an open court. The absence of both was a common thread running through all of the worker detainee cases back to 1997 and went against all principles of international law and freedom of association. The second Supreme Court review of the conviction of Shwe Mahn and the other eight persons convicted of high treason, should ensure the minimum guarantees of judicial fairness, that the defendants be informed of the charges against them, enjoy sufficient time to prepare their cases and benefit from defence counsels of their own choosing. The Committee should strongly urge the Government to take all the necessary measures to ensure these guarantees as a matter of urgency.

The Employer members recalled that since 1993, this Committee had repeatedly dealt with this case which had also been repeatedly mentioned in special paragraphs of the Committee's report as a case of continued failure to apply the Convention. Summarizing the facts of the case, the Employer members stated that no free and independent trade unions existed in the country, a situation that was not denied by the Government. While the Government had once again referred to the future Constitution, indicating that the prevailing situation was provisional, the Employer members recalled that in fact the Government had failed to apply the Convention ever since its ratification some 50 years ago. Therefore the Committee of Experts had noted the total lack of progress in providing a legislative framework in which free and independent unions could be established. In this respect, the Employer members recalled that all trade union activities constituted punishable offences due to the fact that under national legislation trade unions were illegal organizations. The information provided by the Government representative did not indicate any change in this regard. The Committee of Experts had consistently stated that the welfare associations, which the Government considered to be forerunners of trade unions, were not substitutes for trade unions in the meaning of the Convention. The Employer members were not against the activities of these associations, but they agreed with the Committee of Experts that they did not satisfy the requirements of the Convention. Against this clear factual background, the Committee should urge the Government to finally apply the Convention to ensure that workers and employers could fully exercise their right to freedom of association. While in substance the Committee's conclusion should remain unchanged, the resolution of this case had become increasingly urgent.

The Government member of the United States said that this case was perennially disturbing and that her Government remained concerned about the total lack of progress by the Myanmar authorities in providing a legal framework in which free and independent workers' organizations could be established. The Government of the United States deplored the lack of seriousness the Myanmar authorities had given to a fundamental right that should have been guaranteed in the 50 years since Myanmar had ratified this Convention. Recent events in the country and the discussion held in the Committee served to dramatically illustrate the high price workers were paying for attempting to organize trade union rights, or even making contact with independent trade union organizations. Despite promises, the fact remained that law and practice were in stark contrast to the requirements of the Convention. Civil liberties were trampled. Due process was ignored. As her Government had already noted, strong and independent workers' organizations could provide significant help in the effort to eradicate forced labour and would make a valuable contribution to the transition to democracy. But genuine freedom of association did not exist in Myanmar. She asked the ILO to send the strongest possible message to the authorities to recognize, guarantee and promote freedom of association and the right to organize.

The Worker member of Italy stated that the 1964 legislation and other laws and orders, which had been the subject of comment by the Committee of Experts over many years, as well as military decrees and orders, had strangled all forms of democratic organization and collective bargaining in Myanmar. On 18 September 1988, the date of the military coup which abolished all state organs, the SLORC issued Order No. 2/88 which prohibited any activity by five persons or more, such as gathering, walking or marching in procession, chanting slogans, delivering speeches, regardless of whether the act is with the intention of creating disturbances, of committing a crime or not. Order No. 2/88 was further strengthened by the 1988 Unlawful Association Act, which stated that a member of an unlawful association would be punished with imprisonment of not less than two years. On 30 September 1988, Order No. 6/88, known as the Law on the Formation of Associations and Organizations was issued. It had been considered by the Conference Committee for many years. The Order stated that all organizations had to apply for permission to the Ministry of Home and Religious Affairs, provided that organizations that were not permitted could not form or continue to exist and pursue activities. This Order applied to workers' and employers' organizations. The reasons to deny an organization permission to be established were extremely broad and there was no mechanism for appeal against a decision denying permission. Violation of the Order could be punished with imprisonment of up to five years, while persons found guilty of being a member of an unlawful organization could be jailed for up to three years. The speaker recalled that in 1989, the Government had indicated that major political changes were under way in Burma and that the former single-party system was in the process of being transformed into a multi-party system. In 1991, after the March 1990 democratic elections, won by the NLD, the Government communicated to the Committee that although there had been no formal amendment or repeal made to Act No. 6 of 1964 and Regulation No. 5 of 1976, they had become automatically defunct.

The Government representative declared also that "general elections had been recognized as one of the most free and fair elections, and recognized that "the provisions of the law concerning the formation of workers' organizations in his country restricted the creation of trade unions to a single trade union structure, which was contrary to the provisions of Articles 2, 5 and 6 of the Convention". In 1992, the Government indicated that the Trade Union Act would have been redrafted to meet the new trends prevailing in this country, so trade union rights will prevail. The Government declared that in conformity with Declaration No. 11/92 of 24 April 1992 after the convocation of a national Convention, the new Constitution would incorporate the rights of all workers to form their own independent trade unions in conformity with the democratic system. In 1993, the Government had stated that after the emergence of the new Constitution, various laws would have to be reviewed to bring them in line, but during the transitional period, workers' rights had been ensured by legislation still in force. The speaker said that nothing had changed although more than a decade had passed since the democratic elections. The new National Convention, which had begun in May 2004 with democracy absent both in terms of participants and procedures and the number of workers in jail condemned to rigorous work (which is a way to define forced prison labour), should oblige the Government of Burma to put into practice, immediately and without any further delay, the conclusions of the Committee on Freedom of Association, thus using the expertise of the ILO Freedom of Association Branch. She concluded by asking the Government to implement without delay the recommendations of the Committee on Freedom of Association.

An observer of the International Confederation of Free Trade Unions (ICFTU) said that the Committee of Experts, the Committee on Freedom of Association and previous speakers had described the complete lack of freedom of association in Myanmar from the legal point of view. As General-Secretary of the Federation of Free Trade Unions of Burma (FTUB), he said that it was impossible for his organization to function freely or register officially and that activities had been conducted underground. Working for, cooperating with or simply being in contact with his organization could lead to the harshest possible sentence, i.e. the death penalty. The FTUB maintained structures both inside and outside the country, and activities inside Burma included organization and training, collecting evidence of worker's rights, involvement in labour disputes, and monitoring the denial of collective bargaining rights. Trade unions had also collected evidence of forced labour, which had been communicated to the ILO and the international trade union movement. As evidence of denial of freedom of association he pointed to four cases described in Case No. 2268 of the Committee on Freedom of Association, concerning the Motorcar Tyre Factory, Unique Garment Factory, Myanmar Texcamp Industrial, and Myanmar Yes Garment Factory, the last three being located in the Hlaing That Ya industrial zone. The pattern of these cases was identical: on demanding their rights, workers faced threats, dismissals and arrests as police or army intervention was standard practice. In all the cases the FTUB had also written official letters to both the employer concerned, including, where necessary, to the foreign owners of the companies, for example in the United States, and to the Ministry of Labour. Despite these actions, FTUB members had been accused of high treason simply because they had been in contact with the ILO. Shwe Man, Min Kyi and Aye Myint had been in prison since July 2003. He appreciated the efforts deployed by the ILO, including visits to the prison where his three colleagues were detained, and asked the Committee to urge the authorities to release them. He drew the Committee's attention to another major case concerning three FTUB leaders and members, which was similar to that of the three other members detained since 1997 under life sentences: U Myo Aung Thant, Khin Kyaw and Thet Naing. He stressed the striking similarity between the cases of two of them, Myo Thant and Khin Kyaw, and those of the three other colleagues who had been sentenced to death in November 2003 and whose cases were not well known to the Committee. Like the three new cases, the colleagues detained since 1997 had not benefited from a fair trial and had been sentenced for alleged possession of terrorist equipment, whereas in fact they had been sentenced for having been in contact with the FTUB. U Myo Aung's conviction rested on a confession obtained through torture. He asked the Committee to demand their immediate release. Thet Naing was imprisoned for strike action, though the exact sentence was never announced. He expressed the hope that the Committee would demand the release of all detained trade union members, activists and leaders, and that the Government would fully respect the Convention both in law and in practice.

The Government member of Norway also speaking on behalf of the Government members of Denmark, Finland, Iceland and Sweden, expressed once again deep concern about the trade union situation in Myanmar and recalled that this Committee had been commenting upon the Government's failure to apply this Convention for several years. He noted with deep regret the total lack of progress in providing a legislative framework in which free and independent workers' and employers' organizations could be established, and considered this as an indication of the lack of seriousness given to these fundamental matters by the Government. He welcomed the information contained in the Government representative's letter to the Director-General of 3 June 2004, in which it was mentioned that, on 20 May 2004, the National Convention had discussed the basic principles relating to the rights of workers, including basic principles concerning labour organizations. However, he reminded the Government representative that these principles comprised the basic rights of workers and employers to form and join organizations of their own choosing, without previous authorization, and the right for these organizations to organize their activities freely and to affiliate with international organizations without any impediment. He again urged the Government to immediately take the necessary measures to ensure that workers and employers could fully exercise their rights guaranteed by the Convention in a climate of full security and in the absence of threats or fear. Finally, he asked the Government to provide the necessary information in reply to the serious matters raised by the ICFTU.

The Worker member of Thailand observed that up to two million migrant workers from Myanmar lived in Thailand. The FTUB organized these workers in cooperation with Thai organizations and assisted workers deported back to Myanmar where they ran the risk of being arrested. The FTUB and his union were discussing possible membership of migrant workers in Thai unions in order to protect their rights. Thai trade unions also helped Myanmar seafarers to organize.

The Worker member of Japan noted that the case had been discussed for many years and that it was one of the worst ever recorded. The statement by the Government representative did not in any way improve matters. The main reason why the Committee of Experts' recommendations were discarded was due to political support from countries mainly in the Asian region, but he was pleased to note that Malaysia had declared that it might no longer defend Myanmar against international criticism if Aung San Suu Kyi was not released. A second factor was continuing foreign economic support, which amounted to US$7,400 million at the end of March 2001. The ten major foreign investors in order of importance were: Singapore, United Kingdom, Thailand, Malaysia, United States, France, Indonesia, Netherlands, Japan and Republic of Korea. China also supported the Government of Myanmar. He especially pointed to serious violations of ILO principles in EPZs, where workers could not establish or join trade unions, and had no protection of their interests and rights. A primary purpose of anti-union policy was to attract foreign direct investment in EPZs.

The Government member of Cuba stated that her Government assigned great importance to solving the difficulties faced by Myanmar with respect to the application of the Convention. The Government had already provided, during the examination of the application of Convention No. 29, indications of its will to cooperate. She firmly trusted that the Government would make progress in relation to the application of the Convention through dialogue and cooperation. She noted the need for the Government of Myanmar to adopt a legislative framework favourable to the application of the Convention, a task for which the technical assistance of the ILO would be extremely useful.

The Government representative wished to respond to comments made during the discussion of the three individuals with an ILO connection who had been convicted of high treason. He stated that he had already informed the Committee during the special sitting on Myanmar, about the positive outcome of the first appeal lodged by these individuals before the Supreme Court, which had reviewed and commuted their sentences to much lighter ones. He emphasized that this was the first time that the judiciary had taken into account the views and concerns expressed by an international organization. Not only these three individuals but also the remaining six persons who had been convicted of high treason had received commutations of their sentences. He added that a letter which he had sent to the Director-General on 3 June 2004, addressed the crux of the problem. In that letter, he had conveyed the following points: (1) Min Kyi (a) Naing Min Kyi, Aye Myint (a) Myint Aye Maung and Shwe Mann (a) Zeyar Oo still had the right to a second appeal to the full bench of the Supreme Court for a further review of their cases. (2) On 28 November 2003, the judge of the Yangon Northern District Court, in passing judgement on Min Kyi (a) Naing Min Kyi and Aye Myint (a) Myint Aye Maung, had made an inadvertent and incorrect reference to the ILO; this was one of the reasons why the review of the cases of nine individuals including Min Kyi (a) Naing Min Kyi, Aye Myint (a) Myint Aye Maung and Shwe Mann (a) Zeyar Oo, had to be undertaken. (3) He provided assurances once again, that under no circumstances, did contact and cooperation by a Myanmar citizen with the ILO constitute an offence under the existing Myanmar law. (4) He expressed the hope that these points, including points (2) and (3) would be duly reflected in the judgement on the second appeal by the Supreme Court. In that letter, he had also brought attention to the fact, that the Facilitator designated by the ILO, as provided in the Formal Understanding concluded to this effect, had already been accorded "free access to the said person(s) and witnesses at every stage of the procedure", and that he had enjoyed the full cooperation of the Myanmar authorities in the performance of his duties, as had been demonstrated by the role he had played in the case of the three individuals. The Government representative assured the Committee that the Facilitator designated by the ILO would continue to enjoy the same kind of free access and cooperation in the future.

As to the issue of the National Convention, the Government representative emphasized that the responsibility of the present Government, which was interim in nature, was to pave the way for the adoption of a new Constitution and for the emergence of a government in accordance with the Constitution. Accordingly, it had been striving for the successful implementation of the Road Map. The National Convention was composed of all strata of society, representatives of political parties, national races, selected persons and representatives from different walks of life. Since the announcement of the date for reconvening the National Convention, the Government, through various contacts, demonstrated its willingness to accommodate the participation of the NLD in the National Convention. The NLD delegates had left the National Convention of their own accord in 1996 and were barred from participation by the standing rules and regulations. The Government had manifested its good will by sending invitations to the NLD delegations concerned, even without waiting for them to formally appeal. This demonstrated the Government's sincerity. The Government not only allowed the NLD headquarters to be reopened but had also lifted restrictions placed on five senior party officials as a gesture of magnanimity. Furthermore, the Government, through its contact person, had urged Daw Aung San Suu Kyi on several occasions to permit NLD delegates to participate in the National Convention. At the request of the NLD, arrangements had also been made to enable the Central Executive Committee members to meet with Daw Aung San Suu Kyi and freely discuss among themselves. He emphasized the crucial importance of successfully convening the National Convention. The maintenance of peace and stability was of utmost importance to the success of the National Convention. One thousand and eighty-eight delegates were now participating in the National Convention and only 54 from the NLD; the Shan NLD and a small Kokang party had decided to stay away. In his view, it was evident that the NLD and its partners were placing the interests of the party and the individuals above that of the nation. The speaker finally protested against the abuse of the Committee by Mr. Maung Maung, a fugitive from justice, and recalled that he had already handed over a letter on this matter to the Chairperson of this Committee on 10 June 2004.

The Worker members noted that the Government representative had presented little new information. Despite claims of cooperation between the Government and the ILO, no progress had been made and there was a growing urgency to resolve this case. With regard to the Supreme Court's review of the cases concerning three individuals accused of high treason, mentioned in the Government's recent letter to the Director-General, the Worker members requested the Government to ensure their right to legal counsel of their choice and to a public hearing. The Committee should also request the Government to implement fully the recommendations of the Committee on Freedom of Association.

The Employer members stated that the Committee had dealt with the issues relating to the judiciary already under Convention No. 29. Finally, they reiterated that the facts constituting a violation of the Convention in this case were clear and not denied by the Government.

The Government representative stated that a certain confusion had prevailed as to the exact number of persons concerned by the discussion. Moreover, he indicated that his country would consider the inclusion of this case in a special paragraph as a denial of the fundamental ILO principles and that, if this decision were confirmed, his Government would draw the appropriate conclusions.

The Committee took note of the statement made by the Government representative and the detailed discussion that followed. The Committee recalled that it had discussed this serious case on many occasions during more than 20 years, and that since 1996 its conclusions had been included in a special paragraph for continued failure to implement the Convention. The Committee was nevertheless obliged to point out once again that despite the repeated examination of this case, there had been no progress with respect to the adoption of a legislative framework which would allow for the establishment of free and independent trade union organizations. The Committee noted with great concern the information provided about nine persons, including three persons who had been convicted of high treason for having maintained contacts with the ILO or having been affiliated to the Federation of Trade Unions of Burma. The Committee took note of the urgent and serious case before the Committee on Freedom of Association, the allegations of which referred to the conviction of three persons, two of whom were serving prison terms, for having exercised trade union activities. The Committee urged the Government to liberate those who remained in prison and to provide it with the text of a judgement which had convicted a trade union official in absentia. The Committee took due note of the information provided by the Government according to which the National Convention was preparing a Constitution and that once the Constitution was promulgated, it would make efforts to establish a legislative framework for the recognition of freedom of association. Recalling that fundamental divergences had existed between the national legislation and practice and the Convention since the Government had ratified the Convention 50 years ago, the Committee urged the Government in the strongest terms to urgently adopt the necessary measures and mechanisms to guarantee in law and in practice to all workers and employers the right to establish and join organizations of their own choosing without previous authorization, as well as the right of these organizations to affiliate with federations, confederations and international organizations, without interference from the public authorities. Moreover, the Committee underlined that respect for civil liberties was essential for the exercise of freedom of association and urged the Government to take the necessary measures so that workers and employers could exercise the rights guaranteed by the Convention in a climate of complete freedom and security, free from violence and threats. The Committee urged the Government to communicate all relevant draft laws as well as a detailed report on the concrete measures adopted to ensure improved conformity with the Convention, including a response to the comments presented by the ICFTU, so that this report could be examined by the Committee of Experts this year. The Committee expressed the hope that in the coming year it would be in a position to observe significant progress in this respect.

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

The Government representative stated that a certain confusion had prevailed as to the exact number of persons concerned by the discussion. Moreover, he indicated that his country would consider the inclusion of this case in a special paragraph as a denial of the fundamental ILO principles and that, if this decision were confirmed, his Government would draw the appropriate conclusions.