Observación (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

The Committee takes note of the information contained in the Government’s report, the oral and written information provided by the Government representative to the Conference Committee on the Application of Standards in June 2005, as well as the discussion which took place therein and the resulting special paragraph in the Conference Committee’s report for continued failure to implement the Convention. The Committee also notes the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2268 (333rd Report paragraphs 642-770 and 337th Report paragraphs 1058-1112).

The Committee further notes the observations dated 31 August 2005, received from the International Confederation of Free Trade Unions (ICFTU) with regard to the following issues: obscure legislation; single trade union system; military orders and decrees further limiting freedom of association; prohibition of trade unions; "workers’ committees" organized by the authorities; the Independent Federation of Trade Unions (FTUB) independent workers’ organization forced to work underground and accused of terrorism; repression of seafarers even overseas; detention of trade unionists and specific violations of trade union rights  in 2004. The Committee requests that the Government provide its observations in its next report on the comments made by the ICFTU.

A. Violations of fundamental civil liberties. 1. Murders and torture of trade unionists. The Committee recalls that in its previous comments it had asked the Government to take all necessary measures so that workers and employers can exercise the rights guaranteed by the Convention in a climate of full security and in the absence of fear. It notes the conclusions of the Conference Committee to the effect that respect for civil liberties is essential for the exercise of freedom of association and that workers and employers should be able to exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats.

The Committee further notes with regret in this respect, the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2268 concerning the death of Saw Mya Than, member of the FTUB and official of the KEWU, as well as the comments made by the Worker members in the Conference Committee with regard to Koe Moe Naung who was allegedly arrested on 19 May at his residence in Ranong at the border between Thailand and Myanmar by two unidentified men, brought to the village-based Light Infantry Regiment 431 and tortured to death during interrogation; he was a trade union leader who was organizing Burmese fishermen and migrant workers from Myanmar in the Ranong Province.

The Committee strongly deplores these alleged violations of fundamental civil liberties of trade union members and leaders and emphasizes that a climate of violence in which murders and disappearances of trade union leaders go unpunished, constitutes a serious obstacle to the exercise of trade union rights and that such acts require severe measures to be taken by the authorities (see General Survey on freedom of association and collective bargaining, 1994, paragraph 29). As regards, more specifically, torture, cruelty and ill-treatment, the Committee points out that trade unionists like all other individuals, should enjoy the safeguards provided by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and governments should give the necessary instructions to ensure that no detainee suffers such treatment (see General Survey, op. cit., paragraph 30). The Committee therefore asks the Government to provide information in its next report on measures adopted and instructions issued without delay so as to ensure respect for the fundamental civil liberties of trade union members and officers.

2. Arrests, convictions and imprisonment for trade union activities including contacts with organizations abroad. The Committee recalls that in its previous comments, it had asked the Government to ensure that no individual shall be sanctioned for contacts with a trade union or workers’ association, while noting that the judgements of the Supreme Court, making references to contacts with illegal organizations abroad, were ambiguous in this respect. The Committee notes in this respect from the Government’s report that the three organizers of the FTUB, Nai Min Kyi, Aye Myint and Shwe Mahn (instead of Nai Yetka as indicated in the Committee’s previous report), who had been previously convicted and received heavy prison sentences for ILO-related activities, were finally released from prison after their sentences were commuted to lighter ones. Shwe Mahn was released on 29 April 2005 while Nai Min Kyi and Aye Myint were pardoned and released from prison in January 2005. Moreover, the Supreme Court had indicated on appeal that "communication and cooperation with the ILO does not amount to an offence under the existing laws of Myanmar". The Committee takes note of this information.

The Committee notes with regret however, the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2268 with regard to the conviction of the General Secretary of the FTUB for high treason, the conviction and imprisonment of Myo Aung Thant, based allegedly on a confession obtained under torture, and the conviction and imprisonment of Khin Kyaw, member of the Seamen’s Union of Burma; the last two allegedly did not benefit from a fair trial with access to legal counsel of their choice.

The Committee further notes with deep regret the text of the judgement dated 9 April 2004 by the Ma-ha-aung-mye Township Court which convicted ten workers (U Hla Soe, U Than Win, U Win Kyi, Daw Hnin Pa Pa (aka) Myint Myint Tun, Myint Oo (aka) Ni Ni, Aung Aung Naing (aka) Ba Gyi Aung, Htay Lwin Oo, Aung Naing Thu (aka) Po Htaung, Ye Tun Min, Zaw Min Naing, U Tin Oo) to seven years’ imprisonment under section 5(j) of the Emergency Provisions Act of 1950, for having carried out "activities for the emergence of a trade union in Myanmar". The Committee notes from the content of the court judgement that the accusations included: contacting opposition forces in Maesod, Thailand; receiving financial support from exiled groups; receiving trade union training from the aforementioned organizations; disseminating information from inside the country to exiled opposition forces; and joining together in forming a trade union. The court found that in taking part in such prohibited activities, "the accused had the intention to destroy the stability and security of the union in order to bring about the ruin of public morality and to incite to aberrant behaviour".

The Committee most strongly deplores the conviction of trade unionists to imprisonment for what appears to be the exercise of regular trade union activities like setting up workers’ organizations, communicating with international organizations of one’s own choosing and receiving financial assistance and training from them. It emphasizes once again that respect for civil liberties is essential for the exercise of freedom of association and that workers and employers should be able to exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats. The authorities should not use legitimate trade union activities as a pretext for arbitrary arrest or detention. The Committee urges the Government to take all necessary measures to release all those who have been imprisoned for the exercise of trade union activities immediately and to ensure that no worker is sanctioned for the exercise of such activities, in particular, for having contacts with workers’ organizations of their own choosing. The Committee trusts that the Government will be in a position to indicate progress in this respect in its next report.

B. Legislative framework (Articles 2, 3, 5 and 6 of the Convention). In its previous comments, the Committee had noted a total lack of progress towards establishing a legislative framework under which free and independent workers’ organizations could be established despite the comments it had been making on this issue essentially since ratification of the Convention 50 years ago. The Committee had urged the Government to take all the necessary measures so as to adopt a legislative framework under which free and independent workers’ organizations could be established and to ensure that Orders Nos. 6/88 and 2/88 and the Unlawful Association Act of 1908, did not apply to the exercise of the right to organize. The Committee recalls that: (1) Order No. 6/88 of 30 September 1988 provides that the "organizations shall apply for permission to form to the Ministry of Home and Religious Affairs" (section 3(a)), and states that any person found guilty of being a member of, or aiding and abetting or using the paraphernalia of organizations that are not permitted shall be punished with imprisonment for a term which may extend to three years (section 7); (2) Order No. 2/88 prohibits the gathering, walking or marching in procession by a group of five or more people regardless of whether the act is with the intention of creating a disturbance or of committing a crime; and (3) the Unlawful Association Act of 1908, provides that whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association or in any way assists the operations of any such association, shall be punished with imprisonment for a term which shall not be less than two years and more than three years and shall also be liable to a fine (section 17.1).

The Committee notes from the information provided in the Government’s report and by the Government representative to the Conference Committee in June 2005, that appropriate workers’ organizations, which have been suppressed since 1988, would re-emerge once Myanmar had its new Constitution. With this in mind, the Myanmar Government had adopted a seven-step Road Map, the first step of which was the reconvening of the National Convention. This process, which had started in 1993 and had been interrupted in 1996, was to lay down the basic principles for drafting the new Constitution. During its sessions between 1993 and 1996, the National Convention had laid down basic principles. The resumed session of the National Convention which had started on 20 May 2004 had conducted clarifications and deliberations on basic principles for the social sector, including the rights of workers and social welfare rights. The deliberations had also dealt with the basic principle of forming workers’ organizations. In the process of drafting a new state Constitution, these basic principles would provide a framework for drafting detailed legal provisions. In total, 104 basic principles had been adopted by consensus, and it was indicated that "the State shall enact necessary laws to protect the rights of the workers". The Government states in its latest report that a new legislation will be coming out along with the new Constitution.

The Committee points out that the seven-step Road Map process for the drafting of a new Constitution which would eventually open the way to the emergence of appropriate workers’ organizations started as early as 1993 and is still in its initial phase. The Committee observes that the documents attached to the Government’s report contain a list of topics on which legislation is to be enacted in the future, including topics as general as "labour disputes" and "labour organizations" without any further suggestion as to the content of the "detailed basic principles" on these issues. Moreover, no legislative texts have been attached to the report and there is no indication on any measures to repeal Orders Nos. 2/88 and 6/88 as well as the Unlawful Association Act, as previously requested by the Committee.

The Committee notes with deep regret that the information provided by the Government continues to demonstrate a total lack of progress towards establishing a legislative framework under which free and independent workers’ organizations can be established and a total absence of any meaningful dialogue in this respect. Noting that measures are needed urgently to amend the legislation and the Constitution with the full and genuine participation of all sectors of society regardless of their political views, the Committee, like the Conference Committee, once again urges the Government to communicate all relevant draft laws and to furnish a detailed report on the concrete measures taken to enact legislation guaranteeing to all workers and employers the right to establish and join organizations of their own choosing, as well as the rights of these organizations to exercise their activities and formulate their programmes and to affiliate with federations, confederations and international organizations of their own choosing without interference from the public authorities. It further urges the Government in the strongest terms to repeal Orders Nos. 2/88 and 6/88 as well as the Unlawful Association Act, so that they cannot be applied in a manner that would infringe upon the rights of workers’ and employers’ organizations.

[The Government is asked to reply in detail to the present comments in 2006.]