Observación (CEACR) - Adopción: 1998, Publicación: 87ª reunión CIT (1999)

1. The Committee recalls that a complaint under article 26 of the Constitution was submitted in 1996, alleging failure by the Government of Myanmar to observe the present Convention, and that a Commission of Inquiry was established to examine the complaint. The Committee recalls that it has made comments on the observance of the Convention for many years, and that an earlier representation under article 24 of the Constitution was submitted in 1993, alleging violation of the Convention, and concluded in 1994 with the finding that there were substantial violations. The Committee notes further that the Commission of Inquiry completed its work in August 1998, and that its report was submitted to the Governing Body of the International Labour Office at its 273rd (November 1998) Session.

2. The Committee notes that, at the conclusion of its work, the Commission of Inquiry adopted detailed conclusions and recommendations, including the following:

528. There is abundant evidence before the Commission showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military for portering, the construction, maintenance and servicing of military camps, other work in support of the military, work on agriculture, logging and other production projects undertaken by the authorities or the military, sometimes for the profit of private individuals, the construction and maintenance of roads, railways and bridges, other infrastructure work and a range of other tasks, none of which comes under any of the exceptions listed in Article 2(2) of the Convention.

3. The Commission's report concludes further that "Forced labour in Myanmar is widely performed by women, children and elderly persons as well as persons otherwise unfit for work" (paragraph 531). It adds:

533. Forced labour is a heavy burden on the general population in Myanmar, preventing farmers from tending to the needs of their holdings and children from attending school; it falls most heavily on landless labourers and the poorer sections of the population, which depend on hiring out their labour for subsistence and generally have no means to comply with various money demands made by the authorities in lieu of, or over and above, the exaction of forced labour. The impossibility of making a living because of the amount of forced labour exacted is a frequent reason for fleeing the country.

534. The burden of forced labour also appears to be particularly great for non-Burman ethnic groups, especially in areas where there is a strong military presence, and for the Muslim minority, including the Rohingyas.

535. All the information and evidence before the Commission shows utter disregard by the authorities for the safety and health as well as the basic needs of the people performing forced or compulsory labour. Porters, including women, are often sent ahead in particularly dangerous situations as in suspected minefields, and many are killed or injured this way. Porters are rarely given medical treatment of any kind; injuries to shoulders, backs and feet are frequent, but medical treatment is minimal or non-existent and some sick or injured are left behind in the jungle. Similarly, on road building projects, injuries are in most cases not treated, and deaths from sickness and work accidents are frequent on some projects. Forced labourers, including those sick or injured, are frequently beaten or otherwise physically abused by soldiers, resulting in serious injuries; some are killed, and women performing compulsory labour are raped or otherwise sexually abused by soldiers. Forced labourers are, in most cases, not supplied with food ...

536. In conclusion, the obligation under Article 1, paragraph 1, of the Convention to suppress the use of forced or compulsory labour is violated in Myanmar in national law, in particular by the Village Act and the Towns Act, as well as in actual practice in a widespread and systematic manner, with total disregard for the human dignity, safety and health and basic needs of the people of Myanmar.

537. Concurrently, the Government violates its obligation under Article 25 of the Convention to ensure that the penalties imposed by law for the illegal exaction of forced or compulsory labour are both really adequate and strictly enforced. While section 374 of the Penal Code provides for the punishment of those unlawfully compelling any person to labour against the will of that person, that provision does not appear to be ever applied in practice, even where the methods used for rounding up people do not follow the provisions of the Village Act or the Towns Act, which are in any event never referred to in practice.

538. A State which supports, instigates, accepts or tolerates forced labour on its territory commits a wrongful act and engages its responsibility for the violation of a peremptory norm in international law. Whatever may be the position in national law with regard to the exaction of forced or compulsory labour and the punishment of those responsible for it, any person who violates the prohibition of recourse to forced labour under the Convention is guilty of an international crime that is also, if committed in a widespread or systematic manner, a crime against humanity.

4. The Commission of Inquiry has made the following recommendations:

539. In view of the Government's flagrant and persistent failure to comply with the Convention, the Commission urges the Government to take the necessary steps to ensure:

(a) that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Forced Labour Convention, 1930 (No. 29) as already requested by the Committee of Experts on the Application of Conventions and Recommendations and promised by the Government for over 30 years, and again announced in the Government's observations on the complaint. This should be done without further delay and completed at the very latest by 1 May 1999;

(b) that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military. This is all the more important since the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act. Thus, besides amending the legislation, concrete action needs to be taken immediately for each and every of the many fields of forced labour examined in Chapters 12 and 13 above to stop the present practice. This must not be done by secret directives, which are against the rule of law and have been ineffective, but through public acts of the Executive promulgated and made known to all levels of the military and to the whole population. Also, action must not be limited to the issue of wage payment; it must ensure that nobody is compelled to work against his or her will. Nonetheless, the budgeting of adequate means to hire free wage labour for the public activities which are today based on forced and unpaid labour is also required;

(c) that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced, in conformity with Article 25 of the Convention. This requires thorough investigation, prosecution and adequate punishment of those found guilty. As pointed out in 1994 by the Governing Body committee set up to consider the representation made by the ICFTU under article 24 of the ILO Constitution, alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), the penal prosecution of those resorting to coercion appeared all the more important since the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government's statements to the committee, was all the more likely to occur in actual recruitment by local or military officials. The power to impose compulsory labour will not cease to be taken for granted unless those used to exercising it are actually brought to face criminal responsibility.

540. The recommendations made by the Commission require action to be taken by the Government of Myanmar without delay. The task of the Commission of Inquiry is completed by the signature of its report, but it is desirable that the International Labour Organization should be kept informed of the progress made in giving effect to the recommendations of the Commission. The Commission therefore recommends that the Government of Myanmar should indicate regularly in its reports under article 22 of the Constitution of the International Labour Organization concerning the measures taken by it to give effect to the provisions of the Forced Labour Convention, 1930 (No. 29), the action taken during the period under review to give effect to the recommendations contained in the present report. In addition, the Government may wish to include in its reports information on the state of national law and practice with regard to compulsory military service.

5. The Committee notes also that the Government stated, in its response of 23 September 1998 to the Director-General after receiving the report, that it considers the allegations unfounded and politically motivated. It indicates, however, that "the Myanmar authorities have reviewed the Village Act and the Towns Act several times on their own initiatives so as to bring in line with present-day conditions in the country as well as to fulfil Myanmar's obligations ... The authorities, therefore, will do their utmost to complete the process within the time-frame referred to in the Report. ... (W)e do not see any difficulty in implementing the Recommendations contained in paragraph 539 of the Report."

6. The Committee notes the conclusions and recommendations of the Commission of Inquiry, which confirm and expand its own previous conclusions as to the Government's failure to comply with this fundamental Convention, the findings of the Conference Committee on the Application of Standards, as well as the findings of the Governing Body when it examined the representation. It notes further the Government's expression of willingness to implement the recommendations contained in the report of the Commission of Inquiry. It urges the Government to do so, not simply in order to apply the Convention, but most of all to save its own citizens from the suffering and the impediments to development which have been so clearly outlined in the Commission's report. It requests the Government to provide detailed information on the measures it is taking to apply the recommendations and the Convention, and urges it to have recourse to the assistance of the International Labour Office in this effort. In this respect, it notes that when it considered the report of the Commission of Inquiry, the Governing Body asked the Director-General to submit an interim progress report on the implementation of the Convention to the Governing Body at its 274th (March 1999) Session; the Committee expresses the firm hope that the Government will very shortly be in a position to indicate, to the Governing Body, to the Conference and to the present Committee, that it has complied fully with the Convention.

[The Government is asked to supply full particulars to the Conference at its 87th Session and to report in detail in 1999.]