Observación (CEACR) - Adopción: 1999, Publicación: 88ª reunión CIT (2000)

1. The Committee notes that the Government has not supplied a report on the application of the Convention. Following the recommendations of the Commission of Inquiry established to examine its observance of the forced labour Convention, the Committee notes the information presented by the Government in two letters of 12 and 18 May 1999 to the Director-General of the ILO, and the report dated 21 May 1999 of the Director-General to the members of the Governing Body on measures taken by the Government of Myanmar; the Memorandum dated 7 June 1999 of the Government of Myanmar on said report of the Director-General; and the information presented by the Government in June 1999 to the Conference Committee on the Application of Standards and the discussion which took place in that Committee. The Committee also notes the observations made by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 19 October 1999, entitled "Failure by the Government to implement the recommendations of the Commission of Inquiry established under article 26 of the ILO Constitution to examine the complaint concerning observance by Burma of the Forced Labour Convention, 1930 (No. 29)". These observations were transmitted to the Government for any comments which it might deem useful, but no such comments have so far been received.

2. In its previous observation, the Committee recalled 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 noted the conclusions and recommendations of the Commission of Inquiry, which confirmed and expanded 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 earlier examined a representation on the same subject. It noted further the Government's expression of willingness to implement the recommendations contained in the report of the Commission of Inquiry. The Committee expressed the firm hope that the Government would very shortly be in a position to indicate that it had complied fully with the Convention.

3. Information available on the observance of the Convention by the Government of Myanmar will be set out in three parts, dealing with: (i) the amendment of legislation; (ii) any measures taken by the Government to stop the exaction in practice of forced or compulsory labour and information available on actual practice; (iii) the enforcement of penalties which may be imposed under the Penal Code for the exaction of forced or compulsory labour.

I. Amendment of legislation

4. In paragraph 470 of its report, the Commission of Inquiry noted:

... that section 11(d), read together with section 8(1)(g), (n) and (o) of the Village Act, as well as section 9(b) of the Towns Act provide for the exaction of work or services from any person residing in a village tract or in a town ward, that is, work or services for which the said person has not offered himself or herself voluntarily, and that failure to comply with a requisition made under section 11(d) of the Village Act or section 9(b) of the Towns Act is punishable with penal sanctions under section 12 of the Village Act or section 9(a) of the Towns Act. Thus, these Acts provide for the exaction of "forced or compulsory labour" within the definition of Article 2(1) of the Convention.

The Commission further noted that the wide powers to requisition labour and services under these provisions do not come under any of the exceptions listed in Article 2, paragraph 2, of the Convention and are entirely incompatible with the Convention. Recalling that the amendment of these provisions had been promised by the Government for over 30 years and again announced in the Government's observations on the complaint, the Commission urged the Government to take the necessary steps to ensure that the Village Act and the Towns Act be brought into line with the Convention without further delay, and at the very latest by 1 May 1999 (paragraph 539(a) of the Commission's report).

5. All information available indicates that, by the end of November 1999, neither the Village Act nor the Towns Act had been amended, nor has any draft law proposed or under consideration for that purpose been brought to the knowledge of the Committee.

6. However, an "Order Directing Not to Exercise Powers Under Certain Provisions of the Town Act, 1907 and the Village Act, 1907" was issued by the Government on 14 May 1999, which will be considered in paragraphs 8 et seq. below.

II. Measures to stop the exaction in practice of forced or compulsory labour and information available on actual practice

A. Measures to stop the exaction in practice of forced or compulsory labour

7. In paragraph 539(b) of its recommendations of July 1998, the Commission of Inquiry indicated that:

... 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 (of the Commission's report) 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 ...

8. While the Commission indicated that action needed to be taken immediately, it appears from the information supplied by both the Government of Myanmar and other sources, that the concrete measures called for by the Commission of Inquiry had not been taken by mid-May 1999. However, in its letter of 18 May 1999, the Government indicated that an Order was issued by the Ministry of Home Affairs dated 14 May 1999 directing the relevant authorities not to exercise the powers conferred on them under section 7(1), (l) and (m), and section 9 and 9A of the Towns Act and section 8(1), (g), (n) and (o), section 11(d) and section 12 of the Village Act. This indication does not correspond to the content of Order No. 1/99 issued on 14 May 1999, which reserves the exercise of powers under the relevant provisions of the Village Act, 1908 (erroneously dated 1907 in the published Order), and the Towns Act, 1907, in several ways, as pointed out in paragraphs 48 et seq. of the Director-General's report of 21 May 1999.

9. In the first place, under section 5 of the Order, restrictions to exercise powers relating to requisition for personal service under the Acts are to be effective only "until and unless any further directive is issued".

10. Secondly, the Order makes two exceptions under section 5(a) and (b), the language of which corresponds in part to that of Convention No. 29. Exception (a) reproduces the essential wording of the exception from the scope of the Convention made in its Article 2(2)(d) for emergencies. But exception (b) provides for "requisition for personal service in work or service which is of important direct interest for the community and general public and is of present or imminent necessity, and for which it has been impossible to obtain voluntary labour by offer of usual rates of wages and which will not lay too heavy a burden upon the present population". This provision is incompatible with the requirements of the Convention for several reasons.

11. While the wording of exception (b) reflects part of Article 10 of the Convention, it does not observe the conditions laid down in paragraph 2(d) and (e) thereof "that the work or service will not entail the removal of the workers from their place of habitual residence" and "that the execution of the work or the rendering of the service will be directed in accordance with the exigencies of religion, social life and agriculture".

12. More importantly, it is indicated in paragraph 1 of Article 10 of the Convention that forced or compulsory labour of the kind envisaged under this Article "shall be progressively abolished". As noted by the Commission of Inquiry in paragraph 472 of its report, Article 10 is part of a series of provisions containing conditions and guarantees "to restrict and regulate recourse to compulsory labour pending its suppression", that is, during the "transitional period" provided for in Article 1(2) of the Convention. In this regard, the Committee recalls its earlier finding that since the Convention, adopted in 1930, calls for the suppression of forced labour within the shortest possible period, to invoke at the current time (69 years after its adoption) the notion that certain forms of forced or compulsory labour comply with one of the requirements of this set of provisions, is to disregard the transitional function of these provisions and contradict the spirit of the Convention. In the view of the Committee, use of a form of forced or compulsory labour falling within the scope of the Convention as defined in Article 2 may no longer be justified by invoking observance of the provisions of Article 1, paragraph 2, and Articles 4 to 24, although the absolute prohibitions contained in these provisions remain binding upon the States having ratified the Convention. The Commission of Inquiry in its report shared this view, having regard also to the status of the abolition of forced or compulsory labour in general international law as a peremptory norm from which no derogation is permitted.

13. Moreover, in paragraph 472 of its findings as to compliance with the Convention, the Commission of Inquiry noted that:

... in the present case, the undertaking under Article 1(1) of the Convention to suppress the use of forced or compulsory labour in all its forms within the shortest possible period precludes the Government from having recourse to legislation that it had over many years declared obsolete and not applied.

14. In providing for the exercise of powers to impose compulsory labour under an exception patterned after Article 10, paragraph 2(a) to (c), of the Convention, the Order of 14 May 1999 observes neither the conditions laid down in paragraph 2(d) and (e) of Article 10 itself nor the transitional character of that provision; a fortiori, it fails to ensure, as called for by the Commission of Inquiry in its recommendations under paragraph 539(b), "that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military".

15. In its memorandum of 7 June 1999, the Government stated that Order No. 1/99 "specifically orders ... that any and all unpaid or compulsory labour be terminated henceforth". In fact, the Order does not refer to "any and all unpaid or compulsory labour", but only to the exercise of powers under the Village Act and the Towns Act. The Commission of Inquiry pointed out in paragraph 539(b) of its report that in national practice "the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or the Towns Act". This is confirmed by information available on actual practice followed by military authorities since the publication of the report of the Commission of Inquiry (see Part B below), including orders for the contribution of labour issued both before and after 14 May 1999 without ever referring to the Village Act or the Towns Act or any other legal basis.

16. In conclusion, the concrete measures called for by the Commission of Inquiry "to ensure that nobody is compelled to work against his or her will" have not yet been taken.

B. Information available on actual practice

(a) August 1998 to mid-May 1999

17. In his report dated 21 May 1999 to the members of the Governing Body, the Director-General indicated that all information on actual practice that was received (from workers' and employers' organizations, intergovernmental organizations and governments of member States of the ILO) in reply to his request, referred to continued widespread use of forced labour by the authorities, in particular by the military.

18. There is an abundance of information of concrete instances of recourse to forced labour between August 1998 and April 1999, including a great number of written, official orders from either the army or the representatives of the administration demanding that village heads provide villagers to perform forced labour. Like the earlier orders, those issued after July 1998 never refer to any legal basis for the authority exercised.

19. Forced labour has continued to be imposed for portering, military camp work and other work in support of the military, work on agricultural and other production projects undertaken by the military, the construction and maintenance of roads, railways and bridges, and other infrastructure work ranging from digging canals and building dykes to building pagodas. Information reflected in the Director-General's report included details of a number of cases in which forced labour is reported to have been imposed in conditions of extreme brutality, involving the destruction of villages, torture, rape, the maiming and killing of exhausted, sick or wounded porters and (in one case) of a non-cooperative village head, and the use of civilians, including women and children, as minesweepers and human shields. More generally, the conditions in which forced labour is imposed show utter disregard for the dignity, health and basic needs of the victims.

(b) The Government's comments of 7 June 1999

20. In its memorandum dated 7 June 1999, the Government states that the Director-General's report of 21 May:

... is full of unfounded and biased charges deliberately levelled at Myanmar and the Myanmar Government.

The alleged facts in this report are manifestly false accusations concocted with evil intent to bring about the destruction of Myanmar by Myanmar expatriate organizations abroad and renegade groups that oppose all measures undertaken by the Myanmar Government. They are also based on blatantly false accusations made verbally, in writing and in the form of announcements by the National League for Democracy (NLD) ...

At present the Government is implementing construction projects with systematic planning and proper budget appropriations. Moreover most of the work being done on these projects is through the use of mechanized implements and machinery. In any project where human labour has to be unavoidably employed, there is a budget allotment for payment of wages to the workers, Any worker so employed is paid fair wages and there is not a single instance or a shred of evidence that forced labour is being used in these projects.

Work on the highways under construction in various regions, including the union highway in the Shan State, and new railroads being laid, are being done by servicemen of the armed forces. There is not a single civilian working on them.

Any jobs in which the people are involved are confined to the digging of small irrigation ditches to convey water to their own private cultivation plots. The larger state projects for the building of irrigation canals and dams do not use forced or conscripted labour of civilians. As stated, if people are at work at all, they are working in their own interest and according to their own plans and schedules on their privately owned plots of land.

State construction projects employ only military servicemen. So the accusation that the Government is using forced labour on these projects is baseless and flagrantly false. Since only members of the armed forces are employed in the construction of rail and motor roads, to say that forced labour is being used is utterly meaningless.

Other ongoing projects such as the reclamation of vacant and fallow lands and the construction of residential housing and hotels are all ventures by private entrepreneurs who have made capital investments. The use of forced labour in such cases is totally out of the question. In fact when incidents arise over labour grievances, the Government stands firmly on the side of the workers in settling such disputes.

Concerning the charge that the army conscripts porters in its military operations, it could be said that this was the practice in former times when the insurgencies were rampant. But the fact remains that these porters were always paid and the defence budget always had an allotment for payment of their wages. These porters enjoyed the same rights as a soldier. He was given the same rations and paid the same wages. Moreover, a porter, if wounded, obtained equal compensation with a serving soldier and he was entitled to the same hardship allowances. But this issue of military porters is no longer relevant and has become a non-issue since military operations are no longer an urgent necessity.

21. The Committee takes due note that the Government in its statement denies what has been established both by the Commission of Inquiry's findings of July 1998 and by a wealth of concurring information for the period August 1998 to April 1999 supplied by a variety of sources, as well as copies of orders from the army itself or representatives of the administration, as reflected in the Director-General's report of 21 May 1999. The Committee further notes that the assertions quoted above from the Government's memorandum of 7 June 1999 are contradicted inter alia by copies of military orders issued at about the same time that have been submitted by the ICFTU.

(c) The practice since mid-May 1999

22. In its observations dated 19 October 1999, the ICFTU indicates that over one year after the publication of the report of the Commission of Inquiry, and contrary to its repeated public commitments, the Government has still not desisted from the large-scale and systematic use of forced labour, which has continued and continues to be imposed on the civilian population, as evidenced by a set of recent orders issued by the military and/or bodies under its direct control.

23. As demonstrated by these orders, army officers have continued, after 14 May 1999, to demand that village heads provide labourers for cultivating food for the army, for road work, for military portering, as well as to supply identified army camps with a steady, rotating supply of forced labourers used as servants, messengers, sentries, builders and for a variety of other duties. The ICFTU stresses that such labourers are not allowed, under threat of being shot at, to leave army premises until their replacement has arrived and that repeated failure to comply with the orders can result in the arrest and torture of village elders.

24. The ICFTU has also submitted a report pointing at the use of forced labour in August 1999 for repair and maintenance of the Ye-Tavoy railway road, and a study of the 1999 report of the United Nations Special Rapporteur on Myanmar, which identifies direct financial profit for the army as being at times the sole purpose of forced labour. In this connection, the ICFTU recalls, from the military orders submitted, the forced conscription, by an Order of 12 June 1999, of persons with cattle and ploughs to work on land controlled by a battalion commander in the Kawkareik region as an example confirming the Special Rapporteur's analysis of the exploitation of farmers in the context of land confiscation.

25. While the Government has not commented on the observations made by the ICFTU dated 19 October, the Committee notes that, as pointed out before by the ICFTU in relation to an earlier set of military orders, the orders submitted are quasi-identical in style and content to the hundreds of forced labour orders which the Commission of Inquiry examined and found to be authentic in the course of its investigation.

26. In conclusion, there is no evidence that actual practice has changed since the Commission of Inquiry presented its report; on the contrary the exaction of forced or compulsory labour by the authorities has continued and is well documented.

III. Enforcement

27. In paragraph 539(c) of its recommendations the Commission of Inquiry urged the Government to take the necessary steps to ensure:

... that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced labour 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.

28. In its memorandum of 7 June 1999, the Government draws attention to paragraph 6 of Order 1/99 of 14 May 1999 which reads: "any person who fails to abide by this Order shall have action taken against him under existing laws". This, according to the Government, places "beyond all reasonable doubt that offenders will be punished under section 374 of the Penal Code".

29. The Committee notes that section 6 of Order 1/99 refers neither to the exaction of forced labour nor to punishment under section 374 of the Penal Code, but specifically to failure to abide by the Order and to action "under existing laws". The Committee further recalls that the Order does not generally prohibit the exaction of forced or compulsory labour, but specifically restricts the use of powers under the Village and Towns Acts, while military orders calling for the supply of forced labour do not refer to any legal basis.

30. In practice, no action whatsoever under section 374 of the Penal Code has so far been brought to the knowledge of the Committee.

31. It is relevant to recall in this connection that the continued exaction of forced or compulsory labour by the authorities was flatly denied by the Government in its memorandum of 7 June 1999, echoing the similar denial made by Lt. General Khin Nyunt in his address to the ASEAN Labour Ministers Meeting on 14 May 1999, where he referred to "misconception and misunderstanding of the situation and the mentality of our people" who "have voluntarily contributed labour" for "immediate material benefit" and "merit for future life cycles"; then again, "to dispel these wrong impressions", the Government had "issued instructions that only remunerated labour must be used in infrastructure projects", while at the same time "we are now mainly using our military personnel".

32. As pointed out before by a Governing Body Committee in 1994, by the present Committee in its subsequent observations under the Convention and by the Commission of Inquiry in concluding its recommendations under paragraph 539 of its report, the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government's statements, is 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.

33. The Committee deplores the continued brutal imposition of forced labour on the civilian population by military officers in conditions of apparent impunity; the failure by the Government to implement the three recommendations of the Commission of Inquiry; and persistent failure by Myanmar to observe the Forced Labour Convention, 1930 (No. 29). In its concluding observations, the Commission of Inquiry noted that the experience of the past years tended to prove that the establishment of a government freely chosen by the people and the submission of all public authorities to the rule of law were in practice indispensable prerequisites for the suppression of forced labour in Myanmar. The Committee urges the Government to implement the recommendations of the Commission of Inquiry, to halt the scourge of forced labour and to restore its credibility within the international community as a government which is prepared to comply with its international obligations.