Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 349, Mars 2008

1. 1062. The complaint is set out in a communication by the International Trade Union Confederation (ITUC) dated 17 September 2007.
2. 1063. The Government forwarded its observations in communications dated 16 October 2007 and 3 March 2008.
3. 1064. Myanmar has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1065. In its communication dated 17 September 2007, the ITUC alleges that six labour activists were arrested, tried for sedition and association with the Federation of Trade Unions of Burma (FTUB) and handed down extremely harsh prison sentences after they had tried to organize celebrations and a seminar on labour issues for International Labour Day on 1 May 2007.
2. 1066. According to the ITUC, Thurein Aung, Kyaw Kyaw, Shwe Joe, Wai Lin, Aung Naiug Tun and Nyi Nyi Zaw were among some 33 persons reportedly detained following the May Day meeting at the “American Center” in Rangoon, held on 1 May 2007. After being held at a special interrogation centre, the six were transferred to the central prison, where they were held in separate buildings, denied visits and subjected to cruel treatment. Two of them, Shwe Joe and Aung Naing Tun, were released on 4 May, but on 10 May, two other persons, Kyaw Win and Myo Min, were arrested for going to the Thai–Burma border to inform the outside world about the arrests.
3. 1067. On 16 July 2007, the trial of Thurein Aung, Kyaw Kyaw, Wai Lin, Nyi Nyi Zaw, Kyaw Win and Myo Min opened inside the Rangoon’s Insein prison. Relatives were not allowed to the first hearing, but were able to attend subsequent hearings which started on 20 July in a court outside the prison. After that, however, the hearings were transferred back to the prison premises, to which outsiders were unable to obtain access. On 2 August, the two defence lawyers sought for the case to be transferred back to open court, in accordance with section 2(E) of the Judiciary Law, 2000, which provides that “dispensing justice [should be] in open court unless otherwise prohibited by law”. However, due to the constant harassment upon entering and leaving the court premises, the two lawyers withdrew from the case on 4 August. The defendants therefore had no attorneys for the rest of the trial.
4. 1068. On 7 September, the six men were convicted for sedition under section 124(A) of the Penal Code and sentenced to 20 years and a fine of 1,000 Kyat. In addition, Thurein Aung, Wai Lin, Myo Min and Kyaw Win were convicted under section 17(1) of the Unlawful Associations Act for associating with an unlawful organization and for illegally crossing the border. They each received an additional five years’ sentence for the unlawful association charge and three years for illegal border crossing – the latter being covered by the Immigration Provisions Act.
5. 1069. During the interrogations of the six convicted activists, the security forces focused specifically on finding links with the FTUB. In fact, the Burmese junta has always depicted the FTUB as a criminal or even a terrorist organization. However, the ITUC and its predecessor organizations, the ICFTU and the WCL, have always rejected these claims, and recognized the FTUB as a legitimate organization, which merely tries to defend workers’ rights in Burma under very difficult circumstances. The FTUB has an associated organization status with the ITUC.

B. The Government’s reply

1. 1070. In its communication dated 16 October 2007, the Government indicates that the six persons are not workers at any factory or workplace and therefore doubts their capacity to represent workers’ interests. Their arrest was not related to holding the May Day event. There were many May Day events held nationwide by various organizations, but no one was arrested in this connection.
2. 1071. The six persons have been charged with offences under section 124(A) of the Penal Code for inciting hatred or contempt for the Government, section 17(1) of the Unlawful Association Act, 1908, for being a member of or contacting an unlawful association, and section 13(1) of the Immigration (Emergency) Provisions Act, 1947, for illegally leaving and re-entering the country. The above laws do not impair the obligation under Convention No. 87.
3. 1072. Myanmar has acceded to a number of international Conventions for the suppression of terrorism and, in particular, to the International Convention for the Suppression of the Financing of Terrorism. Bombing and terrorist acts committed by the FTUB were uncovered in Myanmar in June 2004. The FTUB supported financially and took part in these terrorist acts and supplied explosive materials to cause an unstable situation in the country. All of these terrorist acts are forbidden under the abovementioned Conventions. On 12 April 2006, the Ministry of Home Affairs issued Declaration No. 1/2006 pronouncing the FTUB to be a terrorist group. The FTUB does not represent any workforce in Myanmar; although it has taken the name of Burma, it is a terrorist group in the guise of a workers’ organization. The six persons were arrested and sentenced because of joining and cooperating with the terrorist group.
4. 1073. The Government denies the allegation that after being held at a special interrogation centre, the six persons were transferred to the central prison, where they were held in separate buildings, denied visits and reportedly subjected to cruel treatment. To the contrary, the detainees could meet their guests and relatives. Because of the security, the trial took place in the court near the Insein prison (the Western District Court of Yangoon). Everybody had the chance of being heard, including the accused, the lawyers and persons interested in this case. While initially two defence lawyers represented the accused labour activists, following an application filed by them on their own initiative, the court authorized their withdrawal from the case. The court also asked the accused whether they would like to hire a lawyer, but they expressed the will to defend their case themselves. Thus, the case continued under the formal procedure.
5. 1074. In its communication dated 3 March 2008, the Government indicates that the six persons appealed the decisions of the Western District Court of Yangoon to the Yangoon Divisional Court. When the appeals were summarily dismissed by the Divisional Court, appeals before the Supreme Court were lodged and the respective three cases were opened on 20 February 2008 and were still pending.
6. 1075. The Government denies the allegation that the Burmese military was unwilling to take into account demands of Burma’s workers and people to ensure respect for workers’ rights and punished all attempts by Burma’s workers to organize and carry out legitimate, collective activities in defence of their social and economic interests. The Government states that, to the contrary, workers in Myanmar enjoyed the rights under the existing labour laws. In line with the international labour standards, ratified by Myanmar and, under the existing labour laws, workers and their organizations can bargain individually or collectively on working conditions, wages, salaries and overtime work. All disagreements between workers and employers related to bargaining (80 disputes in 2006 and 140 disputes up to September 2007) have been settled by the representatives of the Government, employers and workers through conciliation and negotiation process. Thus, industrial peace has been maintained between employers and workers.

C. The Committee’s conclusions

1. 1076. The Committee notes that the complainant in this case alleges that six labour activists were arrested, tried for sedition and association with FTUB, declared to be an unlawful organization in Myanmar, and sentenced to from 20 to 28 years of imprisonment after they had tried to organize celebrations and a seminar on labour issues for International Labour Day on 1 May 2007.
2. 1077. In particular, according to the ITUC, Thurein Aung, Kyaw Kyaw, Shwe Joe, Wai Lin, Aung Naiug Tun and Nyi Nyi Zaw were among some 33 persons detained following the May Day meeting at the “American Center” in Rangoon. After being held at a special interrogation centre, the six were transferred to the central prison, where they have been held in separate buildings, denied visits and subjected to cruel treatment. Two of them, Shwe Joe and Aung Naing Tun, were released on 4 May, but on 10 May, two other persons, Kyaw Win and Myo Min, were arrested for going to the Thai–Burma border to inform the outside world about the arrests.
3. 1078. According to the complainant, most of the trial of the six detainees, opened on 16 July 2007, took place inside the Rangoon’s Insein prison, which outsiders were unable to access. The lawyers of the accused sought for the case to be transferred to the open court, however, due to constant harassment upon entering and leaving the court premises, the lawyers withdrew from the case on 4 August. The defendants therefore had no attorneys for the rest of the trial. On 7 September, all six were convicted for sedition under section 124(A) of the Penal Code and sentenced to 20 years and a fine of 1,000 Kyat. In addition, Thurein Aung, Wai Lin, Myo Min and Kyaw Win were convicted under section 17(1) of the Unlawful Associations Act for associating with an unlawful organization and for illegally crossing the border. They each received an additional five years’ sentence for the unlawful association charge and three years for illegally crossing the border, the latter being covered by the Immigration Provisions Act.
4. 1079. The Committee notes that the Government does not dispute the fact of the arrest and the sentencing of the six persons. However, the Government doubts that these six persons could represent workers as they are not workers of any factory or workplace. They were not arrested and sentenced for activities related to the May Day celebration, but rather for the illegal acts committed under the national legislation, i.e. inciting hatred or contempt for the Government, association with the FTUB, an unlawful organization, and for illegally crossing the border. The Government further contests the complainant’s allegation with regard to the conditions of detention and states that security reasons were behind the decision to hold the court hearings near the Insein prison. However, all interested persons had the chance of being heard and the accused persons could have been represented by new lawyers had they so chosen after their lawyers withdrew from the case on their own initiative. Finally, the Government declares that workers in Myanmar enjoy labour rights under the national legislation.
5. 1080. At the outset, the Committee is obliged to observe the seriousness of the allegations and must recall the specific background concerning freedom of association against which they are presented. The ILO supervisory bodies have closely followed the application of Convention No. 87 by Myanmar over several years. This Committee, the Committee of Experts on the Application of Conventions and Recommendations and the Committee on the Application of Standards of the International Labour Conference have repeatedly drawn the Government’s attention to its continued failure to apply the Convention. The Conference Committee has regularly mentioned (the last occasion of which was at the 93rd Session (June 2005) of the International Labour Conference) the application of the Convention by Myanmar in a special paragraph of its general report, thereby underlining the seriousness of the matter. These comments go to the very heart of the Convention and draw attention to the total absence of a legislative framework and climate sufficient to enable trade unions to exist in Myanmar.
6. 1081. With regard to the complainant’s allegation of ill-treatment of the detained, the Committee emphasizes that detained trade unionists, like all other persons, should enjoy the guarantees enunciated in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights according to which, all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person. Furthermore, in cases of alleged torture or ill-treatment while in detention, governments should carry out inquiries into complaints of this kind so that appropriate measures, including compensation for damages suffered and the sanctioning of those responsible, are taken to ensure that no detainee is subjected to such treatment [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 54 and 56]. The Committee therefore requests the Government to carry out an independent investigation without delay into this allegation and, if it is found that the detainees suffered any ill-treatment, to take appropriate measures, including compensation for damages suffered, giving precise instructions and apply effective sanctions so as to ensure that no detainee is subject to such treatment in the future. It requests the Government to keep it informed in this respect.
7. 1082. The Committee takes note of the court judgements in the three following cases.
8. 1083. The Committee notes that Case No. 82 was filed against Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min on the grounds of intentional instigation of workers to hold a discussion on protection of workers rights at 2 p.m. on 1 May 2007 in Dagon Township (prosecuted under section 124 of the Penal Code). The Committee notes that according to the findings of the court, “the defendants received monetary support from illegal associations such as the NLD(LA) and the FTUB, arranged and facilitated the dissemination of information about these associations to workers in Myanmar and acted in defaming the Government in the course of these activities”. In particular, a public lecture was organized by the defendants on 1 May 2007 to discuss “problems encountered by workers at their respective workplaces, which had an effect of agitating them”. A speech prepared by Thurein Aung (the draft of which was confiscated during a search and submitted to the court by the prosecution as evidence) concerned the following matters: “salaries, disproportional prices for goods, right to take leaves, pension and the failure of the Government to address these issues”. Hence, this speech “was meant to be used to defame the Government”. A speech on the legal protection of workers’ rights was made by defendant Kyaw Kyaw. The main objective of his statement was to point out that “the present Government availed the workers with no remedies”. He further stated that “workers could exercise their rights by submitting complaints to the relevant authorities”. However, Kyaw Kyaw is an “ordinary civilian and had no rights to make such statements”. Nyi Nyi Zaw also participated in the activity and “indirectly defamed the Government by clarifying the rights of workers”. Other defendants, Wai Lin, Kyaw Win and Myo Min also were involved in organizing and participating in the May Day activity. All six were “found guilty for committing a crime under section 124 of the Penal Code”, which stipulates: “whoever by words either spoken or written, or by signs, visual representation or otherwise brings or attempts to bring hatred or contempt, or excites or attempts to excite disaffection towards the Government …, shall be punished with a transportation for life or a shorter term, to which fine may be added, or with an imprisonment of up to three years, to which fine may be added, or with a fine”. The defendants were “condemned to life imprisonment and to a fine of Ks1,000 each, the failure to pay the fine, resulting in an additional six-month imprisonment”.
9. 1084. Case No. 83 was filed against Thurein Aung, Wai Lin, Kyaw Win and Myo Min on the “grounds of receiving monetary support from the members of an unlawful association, such as the NLD(LA) and the FTUB”, operating in Thailand “to arrange and facilitate the internal political movements and establishing of workers’ unions” (prosecuted under section 17(1) of the Unlawful Association Act, 1908). The Court concluded that the monetary contribution of these organizations made possible the distribution to the public of hats with a motto “Just do it now”, which the Court saw as a political movement. The Court considered that the defendants have violated section 17(1) of the Unlawful Association Act, 1908, which provides: “whoever is a member of an unlawful association or takes part in a meeting of any such association or contributes or receives or solicits any contribution for the purpose of any such association or any way assists the operation of 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”. Thurein Aung, Wai Lin, Kyaw Win and Myo Min were sentenced to three years of vigorous imprisonment.
10. 1085. Finally, the same persons were convicted under section 13(1) [Emergency promulgation] of the Immigration Act 1947 and sentenced to five years of vigorous imprisonment for having crossed the border between Myanmar and Thailand on about four occasions between 2004 and 2007 to meet the NLD(LA) and the FTUB representative and to receive financial support (Case No. 84). According to section 13(1) of the above Act, “whoever enters or attempts to enter the Union of Burma, or whoever after a legal entry remains or attempts to remain in the Union of Burma is in contravention of any of the provisions of this Act or the rules made there under or any of the conditions set out in any permit or visa and shall be punished with imprisonment to a maximum of five years or with a fine of a minimum of Ks1,500 or with both”.
11. 1086. The Committee will first examine the question of procedure, before turning to the matter of substance.
12. 1087. Firstly, with regard to the procedure, the Committee notes that the Government’s reply with regard to the trial procedure is extremely brief and appears to evade the main issues. While the Committee does not have sufficient information available to it to determine whether the court proceedings were held inside the prison or in the court near the prison, or whether it was an open or a closed trial, the Committee observes that the Government has not directly replied to the allegations that the defendants’ lawyers had repeatedly requested that the trial be held in an open court and that they were forced to withdraw from the case due to constant harassment. In these circumstances, while the Committee does not have sufficient information available to it to ascertain whether the defendants did indeed refuse a subsequent offer from the court to retain new legal counsel, it firmly believes that the right to legal counsel of one’s own choosing should have resulted in an obligation on the Government to investigate the allegations of harassment and ensure that the defendants could benefit from unobstructed legal counsel. In addition, the Committee recalls the general principle that any trade unionist who is arrested should be presumed innocent until proven guilty after a public trial during which he or she has enjoyed all the guarantees necessary for his or her defence [see Digest, op. cit., para. 117]. A reading of the three judgements leads the Committee to conclude that there indeed appears to have been an absence of sufficient guarantees for due process of law.
13. 1088. Finally, the Committee recalls that article 14 of the International Covenant of Civil and Political Rights provides that everyone convicted of a crime shall have the right to his/her conviction and sentence being reviewed by a higher tribunal according to law. The Committee is deeply concerned by the indication in the 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.
14. 1089. Turning to the substance matter of the three cases, the Committee understands that Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min were, in fact, convicted and received long prison sentences for merely organizing a May Day activity on workers’ rights and contacting and receiving financial assistance from the FTUB (a trade union organization having associated status with the ITUC). Hence, it is undeniable that the six persons were punished for exercising their fundamental right to freedom of association and the freedom of expression. The Committee recalls that the detention of trade unionists for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular. A genuinely free and independent trade union movement can only develop where fundamental human rights are respected [see Digest, op. cit., paras 33 and 64].
15. 1090. While noting the Government’s statement that the appeals were lodged and still pending before the Supreme Court, in the light of the preceding paragraphs, the Committee strongly urges the Government to take the necessary measures to release the six activists without delay and to keep it informed in this respect.
16. 1091. The Committee recalls that 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 [see Digest, op. cit., paras 135 and 137]. Furthermore, the Committee emphasizes that the full exercise of trade union rights calls for a free flow of information, opinions and idea, and, to this end, workers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities [see Digest, op. cit., para. 154]. The Committee expects the Government to take the necessary measures so as to ensure that no person is punished for exercising his or her rights to freedom of association, opinion and expression.
17. 1092. The Committee notes that the Government considers the FTUB to be unlawful. It recalls in this respect that it had to examine this issue in pending Case No. 2268, in respect of which it had formulated interim conclusions on three occasions [see 333rd, 337th and 340th Reports]. In particular, the Committee recalls the following recommendation appearing in paragraph 1112(b) of its 337th Report:
    • 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 in both law and practice, the Committee once again requests the Government to refrain from any acts preventing 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 [such as the FTUB] since they cannot be recognized in the prevailing legislative context of Myanmar. The Committee further requests the Government to issue instructions to that effect to its civil and military agents as a matter of urgency.
    • The Committee reiterates its previous request and asks the Government to keep it informed of the measures taken in this respect.