Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos 2268 and 2591 (351st Report, approved by the Governing Body at its 303rd Session, November 2008 paragraphs 1016–1050; 349th Report approved by the Governing Body at its 301st Session, paragraphs 1062–1093). It also notes the comments of the International Trade Union Confederation (ITUC) dated 29 August 2008 on grave matters which arose in the course of 2007 as well as its previous comments on very serious issues which arose in 2005–06 and the Government’s response to some of these issues:

1. In reply to the ITUC comments relating to severe repression by the Government of the September 2007 uprising against the military Government of the State Peace and Development Council (SPDC) which had been led by Buddhist monks, and supported by workers, students, and citizen activists, the Committee notes the Government’s indication that ten persons died and 14 were injured; in total, 2,284 persons were found to have been involved in the unrest in Yangon and 643 persons outside Yangon; among them a total of 2,836 persons (2,235 from Yangon and 601 out of Yangon) were released; 91 remained under arrest (49 from Yangon and 42 from outside Yangon); these were involved in violence and terrorist acts and necessary measures were being taken against them in accordance with the laws. The Government adds that the SPDC is making efforts for the emergence of a peaceful, modern, disciplined, flourishing, democratic nation upholding the three main National Causes; the vast majority of the people have already adopted the Constitution, the fourth step of the seven-step road map, to shape the future State; on 23 September 2008 the Government released from prison 9,002 prisoners with good conduct and discipline, for social and family reasons.

2. The Committee notes that the ITUC refers to the arrest, heavy-handed interrogation and long prison sentences imposed on six workers (Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min) who participated in a 2007 May Day event at the “American center” in Yangon and tried to relay news to the outside world through the Burma-Thai border; significant harassment of their lawyers by the authorities which prompted them to withdraw from the case on 4 August; the conviction of the six workers on 7 September to 20 years imprisonment for sedition and additional convictions of Thurein Aung, Wai Lin, Kyaw Win, and Myo Min to another five years in prison for association with the Federation of Trade Unions of Burma (FTUB) under section 17(1) of the Unlawful Associations Act and to three years for illegally crossing a border, as a result of which their jail time amounted to 28 years in total. The six activists filed appeals which were dismissed, prompting them to file their appeals to the Supreme Court, where they were pending at year’s end.

The Committee notes that according to the Government, the Supreme Court has held hearings on this case which is pending before it. The Government regrets the request made by the Committee on Freedom of Association in Case No. 2591 (see below) for the release of the six activists which, according to the Government, constitutes interference with the internal affairs of the country. The Government adds that: (i) Article 8 of the Convention requires workers and their organizations to respect the law of the land; (ii) the six persons were not workers at a factory or workplace; (iii) they were arrested not for holding a May Day event but for inciting hatred or contempt for the Government (section 124(A) of the Penal Code), for being a member of or contacting an unlawful association (section 17(1) of the Unlawful Association Act, 1908) and for illegally leaving and re-entering the country (section 13(1) of the Immigration (Emergency) Provisions Act, 1947); (iv) the FTUB does not represent any workforce in Myanmar; it is a terrorist group in the guise of a workers’ organization; (v) the authorities allow the detainees to meet with guests and relatives; they also allowed Mr Thomás Ojea Quintana, Special Rapporteur on the situation of human rights in Myanmar, to meet with Thurein Aung, Kyaw Kyaw and Su Su Ngwe on 5 August 2008; upon request for medical (dental) treatment of Thurein Aung, the Government arranged for a dentist to cure him; (vi) the Special Rapporteur also met with the Minister of Labour and the Human Rights Committee. As for the FTUB, in particular, the Government adds that: (i) after the adoption of the Constitution, the organizations and associations in Myanmar will need to be established under the existing laws of the country and should have locus standi; (ii) the FTUB is not represented anywhere in the workforce of the country; it is illegally established outside the country by persons who absconded and are fugitives from justice; (iii) there is strong and firm evidence that the FTUB has committed terrorist acts uncovered in June 2004; by virtue of the International Convention on the Suppression of Terrorism and the International Convention for the Suppression of the Financing of Terrorism the Government issued Declaration No. 172006 on 12 April 2007 announcing that the FTUB was a terrorist group.

In this regard, the Committee notes the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2591 (349th Report, paragraphs 1062–1093 and 351st Report, paragraphs 144–150), according to which “it is undeniable that the six persons were punished for exercising their fundamental right to freedom of association and the freedom of expression”. It observes that their convictions were based on such acts like, for example, holding a public lecture to discuss “problems encountered by workers at their respective workplaces, which had an effect of agitating them” or preparing a speech on “salaries, disproportionate prices for goods, right to take leaves, pension and the failure of the Government to address these issues”, which were considered by the Government and the courts as “defam[ing] the Government”. The Committee also notes that the Committee on Freedom of Association called on the Government to recognize the FTUB as a legitimate trade union organization and to allow for the free operation of any form of organization of collective representation of workers including the legalization of the FTUB (349th Report, paragraphs 1083, 1089, 1092; 351st Report, paragraph 1038). With regard to the appeal filed by the workers to the Supreme Court, the Committee on Freedom of Association indicated its deep concern at “the indication in the [first instance] judgement that the court explicitly ordered the destruction of all but some evidence presented to it (Case No. 82), thus rendering any review by a higher tribunal virtually impossible” (349th Report, paragraph 1088). As a result, the Committee on Freedom of Association called for the immediate release of the six activists, Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min.

3. The Committee notes that the ITUC refers to the imprisonment of Myo Aung Thant, member of the All Burma Petro-Chemical Corporation Union, who has now been in jail for over 11 years after having been convicted for high treason for maintaining contacts with the FTUB (under section 122(1) of the Penal Code). The Committee notes that according to the Government, Myo Aung Thant is still in prison for breaking the laws of the country and it is impossible to release him, and ITUC should not interfere in the internal judicial affairs of an ILO member State. The Committee notes in this regard the conclusions and recommendations reached by the Committee on Freedom of Association in its interim report concerning Case No. 2268 (351st Report, paragraphs 1016–1050) in which the Committee on Freedom of Association deplored the Government’s refusal to consider the release of Myo Aung Thant and strongly urged the Government to take the necessary steps to ensure his immediate release from prison.

4. The Committee notes that the ITUC refers to the killing of Saw Mya Than – FTUB member and official of the Kawthoolei Education Workers’ Union (KEWU), allegedly murdered by the army in retaliation for a rebel attack. The Committee notes that according to the Government, Saw Mya Than’s death was an accident caused by the KNU, an insurgent organization. The Committee notes that the Committee on Freedom of Association requested the Government in the framework of Case No. 2268 to institute an independent inquiry into the alleged murder of Saw Mya Than – to be carried out by a panel of experts considered impartial by all the parties concerned.

5. The Committee notes that the ITUC refers to the detention and sentencing of Burma Railway Union leader U Tin Hla, a long-serving electrician with the Myanmar Railway Corporation. He was arrested along with his entire family on 20 November 2007; while his family was later released, he was charged under section 19(a) of the Penal Code for possession of explosives which were, in fact, electric wires and tools in his toolbox; after a brief trial, he was sentenced to seven years in prison; in reality, his crime was apparently his very active efforts to organize workers from the railways and other sectors to support the popular uprising of the Buddhist monks and people in late September 2007. He was 60 years old when arrested and there are significant concerns for his health in prison. His requests to see a doctor have been denied.

The Committee notes that according to the Government, the ITUC always refers to an imaginary union when making allegations on persons; U Tin Hla was not a member of a union, but rather a supervisor working in Myanmar Railways and there is no union under the Myanmar Railways. On 14 November 2007 at about 9.30 pm the Police Force of Yangon Division made a surprise check at his house and found him with 337 point 30 carbine bullets and 13 9mm bullets. The Township Court convicted him to seven years’ imprisonment. 

6. The Committee notes that the ITUC refers to the arrest on 13 November  in Yangon of Su Su Nway, the activist who brought a forced labour complaint to the ILO which subsequently resulted in the first successful conviction of four local officials for procuring forced labour; she was arrested for her actions in supporting workers’ participation in the September uprising; at the end of the year, she was being held in Insein prison, awaiting trial on charges of sedition. The Committee notes that according to the Government, this case does not relate to workers’ rights; following complaint No. 2469/07, Su Su Nway was charged under sections 143 and 147 of the Penal Code and the case is before a special court in Insein Prison (Criminal Regular Trial No. 10/2008).

7. The Committee notes that the ITUC refers to:

–      the disappearance on 22 September 2007 of Lay Lay Mon, a female labour activist who is a former political prisoner, after helping organize workers to support protesting monks and citizens in the uprising in Yangon; she is believed to be incarcerated in Insein prison but at year end there was no news of if, or when, she would be brought to trial;

–      the disappearance of labour activist Myint Soe during the last week of September 2007 after being active in engaging with workers to increase their involvement in the September uprising.

8. The Committee notes that the ITUC refers to the arrest by the military authorities on 8 and 9 August 2006 of seven members of the family of the FTUB member and activist Thein Win at their house in the Kyun Tharyar section of Pegu city. While in detention, several male members of the family were tortured while being interrogated. On 3 and 4 September 2006, the authorities released four of the family members. According to the latest communication by the ITUC, three of Thein Win’s siblings (Tin Oo, Kyi Thein and Chaw Su Hlaing) were sentenced to 18 years in jail under section 17(1) and (2) of the Unlawful Associations Act. Tin Oo suffered such intensive torture during detention that he has now become mentally unstable and there are fears for his health.

The Committee notes that according to the Government, Thein Win and six other persons were prosecuted under Criminal Procedure No. 1475/06 at the Township Court of Justice of Toungoo in Pegu Division on 20 September 2008. They were connected to a bomb blast in Paenwegone and the insurgency as well as to participation in terrorist activities. The Southern Military Command made the necessary investigation and the father, mother, brother, sister and sister-in-law were released in September 2006. They went back to their residence and on 2 October 2006 they ran away from Myanmar to Maesauk, Thailand.

9. The Committee notes that the ITUC refers to the arrest in March 2006 of five underground democracy and labour activists for a variety of offences connected to efforts to provide information to the FTUB and other organizations considered as illegal by the regime, and to organize peaceful anti-SPDC demonstrations. All five were sentenced to long prison terms and four were serving those terms in Insein prison (U Aung Thein, 76 years old, sentenced to 20 years; Khin Maung Win, sentenced to 17 years; Ma Khin Mar Soe, 17 years; Ma Thein Thein Aye, 11 years; and U Aung Moe, 78 years old, sentenced to 20 years); according to the latest communication by ITUC, they are still serving their sentence.

10. The Committee notes that the ITUC refers to intimidation by the army of the 934 workers at Hae Wae Garment, located in South Okkapala Township in Yangon, who went on strike on 2 May 2006 to demand better terms and conditions of work. The 48 workers allowed to meet with the authorities were forced to sign a written statement that indicated that there were no problems at the factory. A detachment of 12–20 police officers were regularly present in the factory after workers returned to work.

11. The Committee notes that the ITUC refers to the:

–      arrest and sentencing to a four-year prison term with hard labour of Naw Bey Bey, an activist member of the Karen Health Workers’ Union (KHWU); she was supposedly held in Toungoo;

–      arrest, torture and killing of Saw Thoo Di, a.k.a. Saw Ther Paw, a Karen Agricultural Workers’ Union (KAWU) committee member from Kya-Inn township, Karen State, by an armed column of Infantry Battalion 83 outside his village on 28 April 2006.

12. The Committee notes that the ITUC refers to the shelling of the Pha village with mortars and rocket propelled grenades by Light Infantry Battalion 308 which had been sent by the SPDC military upon learning that, on 30 April 2006, the FTUB and Federation of Trade Unions–Kawthoolei (FTUK) were preparing a May Day workers’ rights commemoration.

13. The Committee notes that the ITUC refers to the discovery in early June 2005 by the SPDC of an underground network of ten FTUB organizers in the Pegu area who were providing support and education to workers and serving as a networking and information link to FTUB structures abroad. Seven men and three women were arrested. In a press conference held on 28 August 2005, the SPDC leaders accused the organizers of having used satellite phones to convey information from inside Burma to the FTUB, which then provided information to the ILO and the international trade union movement. The arrested FTUB members were taken to the infamous Aug Tha Pay interrogation centre in Mayangone district of Yangon where they were investigated and tortured by special branch police and the Bureau of Special Operations (military intelligence) personnel during the months of June and July. On 29 July 2005, they were transferred to Insein prison, and their case sent to a special court that conducts its hearings inside the prison. During the secret trial, they were denied access to outside council or witnesses, and the proceedings clearly did not meet international judicial standards. They were all found guilty and were sentenced on 10 October 2005. Wai Lin and Win Myint, as key leaders of the network, respectively received sentences of 25 years and 18 years; the other five men and two of the women (Hla Myint Than, Major Win Myint, Ye Myint, Thein Lwin Oo, Aung Myint Thein, Aye Chan, Kin Kyi), each received seven-year jail terms, and bank clerk Ma Aye Thin Khine was sentenced to three years of imprisonment. In its latest communication, the ITUC adds that, at the end of 2007, all these FTUB members were still being detained in Insein prison.

The Committee deeply regrets that the Government’s response fails to acknowledge any of the fundamental rights and basic civil liberties of workers contained in the Convention. The Committee regrets the dismissive tone of the Government’s reply to the comments by ITUC as well as the paucity of the information provided which is in stark contrast to the extreme gravity of the issues raised by ITUC. It strongly condemns the Government’s view that comments made by workers’ organizations under article 23 of the ILO Constitution and recommendations made by the ILO supervisory bodies to remedy violations of the fundamental rights of workers constitute interference in internal affairs. It emphasizes in this regard that the membership of a State in the International Labour Organization carries with it the obligation to respect in national legislation freedom of association principles and the Conventions which the State has freely ratified including Convention No. 87. The Committee stresses that respect for the right to life and other civil liberties is a fundamental prerequisite for the exercise of the rights contained in the Convention and 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. Furthermore, as regards the reported 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 of 1994 on freedom of association and collective bargaining, paragraphs 29–30). In addition, noting that several trade unionists have been tried by special courts inside prisons and taking note of court orders to destroy evidence thus rendering any appeal virtually impossible, the Committee emphasizes that it should be the policy of every government to ensure observance of human rights and especially of the right of all detained or accused persons to receive a fair trial with all guarantees of due process.

The Committee, noting that there is currently no legal basis to the respect for, and realization of, freedom of association in Myanmar, recalls once again that while trade unions are expected under Article 8 of the Convention to respect the law of the land, “[t]he law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention”. The authorities should not seize on legitimate trade union activities as a pretext for arbitrary arrest or detention and allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities. In this regard, the Committee deeply regrets that ordinary trade union activities like speeches on socio-economic issues of direct interest to the workers, participation in May Day events and the mere communication of information to the FTUB are considered by the Government as criminal activity and punished with severe prison sentences. The Committee emphasizes that the holding of public meetings and the voicing of demands of a social and economic nature on the occasion of May Day are traditional forms of trade union action and trade unions should have the right to organize freely whatever meetings they wish to celebrate on May Day; freedom of expression which should be enjoyed by trade unionists should also be guaranteed when they wish to criticize the Government’s economic and social policy. With regard to the conviction of trade unionists for passing a border and the Government’s comments on the FTUB being an “alien” organization, the Committee emphasizes that in accordance with the principle enshrined in the Universal Declaration of Human Rights, everyone has the right to leave any country, including his own, and to return to his country and that forced exile of trade union leaders and unionists constitutes a serious infringement of human rights and trade union rights, since it weakens the trade union movement as a whole when it is deprived of its leaders. With regard to the Government’s reference to other Conventions, in order to justify violations of this fundamental Convention, the Committee emphasizes that a state cannot use the argument that other commitments or agreements justify the non-application of ratified ILO Conventions.

The Committee therefore once again most strongly deplores the serious alleged acts of murder, arrest, detention, torture and sentencing to many years of imprisonment of trade unionists for the exercise of ordinary trade union activities, including the mere sending of information to the FTUB and participation in May Day activities. The Committee urges, once again, the Government to provide information on measures adopted and instructions issued without delay so as to ensure respect for the fundamental civil liberties of trade union members and officers and 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. Furthermore, recalling that the right of workers and employers to freely establish and join organizations of their own choosing cannot exist unless such freedom is established and recognized both in law and in practice, the Committee urges the Government to indicate all measures taken, including instructions issued, to ensure the free operation of any form of organization of collective representation of workers, freely chosen by them to defend and promote their economic and social interests, including organizations which operate in exile.

Concerning the legislative framework (Articles 2, 3, 5 and 6 of the Convention), the Committee notes the comments made by ITUC on issues that have already been raised by the Committee over the years, including the prohibition of trade unions and the absence of any legal basis for freedom of association in Myanmar (repressive anti-union legislation, obscure legislative framework, military orders and decrees further limiting freedom of association, a single trade union system established in the 1964 Law and an unclear constitutional framework); the Federation of Trade Unions of Burma (FTUB) forced to work underground and accused of terrorism; “workers’ committees” organized by the authorities; and the repression of seafarers even overseas and the denial of their right to be represented by the Seafarers’ Union of Burma (SUB) which is affiliated to the FTUB and the International Transport Workers’ Federation (ITF).

The Committee notes that according to the Government:

–      the Referendum for the adoption of the Constitution was successfully held and the “yes” vote amounted to 92.4 per cent according to Announcement No. 10/2008 of 15 May 2008 by the Commission for Holding the Referendum of the Government of the Union of Myanmar. Chapter VIII on Citizenship, Fundamental Rights and Duties of Citizens provides in paragraph 354 that: “There shall be liberty in the exercise of the following rights subject to the laws enacted for State security, prevalence of law and order, community peace and tranquillity or public order and morality: (a) the right of the citizens to express freely their convictions and opinions; (b) the right of the citizens to assemble peacefully without arms; (c) the right of the citizens to form associations and unions.”;

–      as a consequence of these provisions, a legislative framework has been established and the initial steps are being taken for the establishment of trade unions at the basic level, aimed at free and independent workers’ organizations. Basic workers’ organizations have already been formed in 11 industrial zones;

–      furthermore, work is now beginning at the respective Committees on amending, reviewing and revising the provisions of the various labour laws adopted on the basis of the 1964 Law Defining the Fundamental Rights and Responsibilities of the People’s Workers. Moreover, the issues raised by the Committee on the Trade Disputes Act 1929 and Trade Union Act 1926 are addressed in the New State Constitution through Chapter IV on Legislation, Chapter VIII on Citizenship, Fundamental Rights and Duties of Citizens and Chapter XV on General Provisions. As for Orders Nos 2/88 and 6/88, the Government indicates that during this transitional period, it will need to draw up measures of protection against persons who will attempt to generate hatred or contempt or excite or provoke disaffection towards the Government established by law in the Union of Myanmar or for the constituent units thereof. But, as a result of the New State Constitution, in future, Order 6/88 will be addressed through the drafting of the new Trade Union Law, and the procedures of the registration of the workers’ organizations will be included in this new law;

–      finally, concerning seafarers, the Government indicates that the Department of Marine Administration under the Ministry of Transport has allowed those Myanmar seafarers who are working on board ships to inform and complain to the Seamen Employment Control Division (SECD) and also inform and complain to the ITF or any other valid association for the prejudice suffered to their interests and their rights.

The Committee recalls that, for several years, it has indicated that there exist some pieces of legislation containing important restrictions to freedom of association or provisions which, although not directly aimed at freedom of association, can be applied in a manner that seriously impairs the exercise of the right to organize. More specifically: (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; (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); (4) the 1926 Trade Union Act requires that 50 per cent of workers must belong to a trade union for it to be legally recognized; (5) the 1964 Law Defining the Fundamental Rights and Responsibilities of the People’s Workers establishes a compulsory system for the organization and representation of workers and imposes a single trade union; (6) the 1929 Trade Disputes Act contains numerous prohibitions of the right to strike and empowers the President to refer trade disputes to Courts of Inquiry or to Industrial Courts.

While noting the Government’s indications on the adoption of the Constitution and upcoming legislative reforms, the Committee must, however, observe that there is currently no legal basis to the respect for, and realization of, freedom of association in Myanmar and that the broad exclusionary clause of section 354 of the Constitution subjects the exercise of this right “to the laws enacted for State security, prevalence of law and order, community peace and tranquillity or public order and morality”. The Committee notes with deep regret that the drafting of section 354 of the Constitution may continue to give rise to continued violations of freedom of association in law and practice. Recalling the particularly serious and urgent issues that this Committee has been raising for nearly 20 years now, the Committee deplores this persistent failure to take any measures to remedy the legislative situation which constitutes a serious and ongoing breach by the Government of its obligations flowing from its voluntary ratification of the Convention. Furthermore, the Committee deeply regrets the exclusion from any meaningful consultation of the social partners and civil society as a whole, which would be a necessary foundation for the establishment of a legislative framework on the particularly serious and urgent issues raised in relation to the application of the Convention. It must also express serious doubts as to whether the “trade unions” referred to by the Government actually reflect the free choice and interests of workers within the current framework of a total absence of an enabling legislative framework and recurrent violations of freedom of association in practice.

The Committee once again urges the Government to furnish without delay 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 immediately 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. It requests the Government to communicate any steps taken towards the adoption of draft laws, orders or instructions to guarantee freedom of association so that it may examine their conformity with the provisions of the Convention.

[The Government is asked to supply full particulars to the Conference at its 98th Session and to reply in detail to the present comments in 2009.]