Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 351, Novembre 2008

Effect given to the recommendations of the Committee and the Governing Body

1. 144. The Committee examined this case at its March 2008 meeting [see 349th Report, paras 1062-1093] and on that occasion it formulated the following recommendations:
   • (a) The Committee requests the Government:
   • (i) to take the necessary measures to amend the national legislation so as to allow trade unions to operate in conformity with Conventions Nos 87 and 98; and
   • (ii) to recognize the Federation of Trade Unions of Burma (FTUB) as a legitimate trade union organization.
     • It requests the Government to keep it informed in this respect.
   • (b) The Committee requests the Government to carry out an independent investigation without delay into the allegation of ill-treatment of the detained persons and, if it is found to be true, to take appropriate measures, including compensation for damages suffered, giving precise instructions and apply effective sanctions so as to ensure that no detainee is subjected to such treatment in the future. It requests the Government to keep it informed in this respect.
   • (c) The Committee strongly urges the Government to release Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min without delay and to keep it informed in this respect.
   • (d) Recalling 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 that the full exercise of trade union rights calls for a free flow of information, opinions and ideas 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, the Committee expects that no person will be punished for exercising his or her rights to freedom of association, opinion and expression.
   • (e) Once again 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 and to keep it informed in this respect.
2. 145. In its communications dated 30 April, 2 June and 23 October 2008, the Government reiterates that the six persons were not arrested for holding the May Day event but for breaching the legislation in force, involvement in unlawful activities and attempted terrorism.
3. 146. The Government indicates that in order to ensure that workers and employers can establish organizations of their own choice, and thereby to implement Convention No. 87, the new State Constitution of Myanmar contains article 354(a), (b), (c), according to which:
   • 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.
   • The above articles ensure a legislative framework under which free and independent workers’ organizations could be established.
4. 147. With regard to the recommendation of the Committee to recognize the FTUB, the Government stresses that as a legitimate government, it has a sovereign right to recognize only the organizations that are legally established within the country. According to Article 10 of Convention No. 87, “organization” means any organization of workers or of employers for furthering and defending the interests of workers or of employers. The FTUB does not represent workers of Myanmar. Moreover, Article 8 of Convention No. 87 stipulates that “in this Convention workers and employers and their respective organization, like other persons or organized collectivities, shall respect the law of the land”. Not only does the FTUB not respect the internal laws of the country but the leader of the FTUB was a fugitive from justice and fled the country because of breaching its laws. It is therefore not possible to recognize the organization as a legal one, despite the fact that the FTUB is recognized by the ILO and has an associated organization status with the International Trade Union Confederation. The Government states that it will only recognize a workers’ organization representing the entire workforce of Myanmar.
5. 148. With regard to the Committee’s requests to carry out an independent investigation into the allegation of ill-treatment of the detained persons and to release Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min, the Government once again submits that the allegations in this case are based on false information. The six persons in question are taking instructions, trained and provided with financial assistance by the FTUB, an exile terrorist group, to incite the general public to create instability in the country. The Government strongly and categorically objects to the recommendation of the Committee. The Government considers that pursuant to Convention No. 87, the Committee on Freedom of Association has to deal with the specific issues of workers and employers. Moreover, the ILO, as one of the Specialized Agencies of the United Nations, should observe section 2(7) of the UN Charter. 1 The Government considers that the requests of the Committee interfere into internal affairs of the country, into its domestic law and the judicial power of a sovereign State. The Supreme Court reviewed the cases of the six persons on 4 April 2008. The Myanmar judicial system is independent and there can be no interference with its judicial process. The Government draws the Committee’s attention to Article 8 of Convention No. 87, according to which, the law of the land should be respected and suggests that the ILO supervisory bodies respect internal laws of a member State.
6. 149. The Committee deeply regrets both the position of the Government expressed in its reply asserting interference in its internal affairs and the failure to submit any new information or present any new evidence. The Committee draws the Government’s attention to the fact that by virtue of its Constitution, the ILO was established in particular to improve working conditions and to promote freedom of association in the various countries. Consequently, the matters dealt with by the Organization in this connection no longer fall within the exclusive sphere of States and the action taken by the Organization for the purpose cannot be considered to be interference in internal affairs, since it falls within the terms of reference that the ILO has received from its Members with a view to attaining the aims assigned to it [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 2]. The Committee also recalls that a special procedure was established in 1951 for the protection of freedom of association under the responsibility of two bodies, namely, the Fact-Finding and Conciliation Commission on Freedom of Association and the Committee on Freedom of Association, pursuant to negotiations and agreements between the Governing Body of the ILO and the United Nations Economic and Social Council and that since then, it had examined, in a constructive manner and through a balanced tripartite approach, over 2,600 cases from all over the world.
7. 150. The Committee emphasizes that it is a fundamental obligation of a member State to respect human and trade union rights, and stresses, in particular, that when a State decides to become a Member of the Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association [see Digest, op. cit., para. 15], which it should observe in law and in practice. The Committee expresses its deep concern at the extreme gravity of the issues raised in this case and at the violation of fundamental human rights and freedom of association principles in law and in practice. The Committee deplores that the Government has failed to implement its recommendations. It therefore refers to its previous examination of this case and once again urges the Government:
   • – to take the necessary measures to amend the national legislation so as to allow trade unions to operate in conformity with Conventions Nos 87 and 98 and to recognize the FTUB as a legitimate trade union organization;
   • – to carry out an independent investigation without delay into the allegation of ill-treatment of the detained persons and, if it is found to be true, to take appropriate measures, including compensation for damages suffered, giving precise instructions and apply effective sanctions so as to ensure that no detainee is subjected to such treatment in the future;
   • – to release Thurein Aung, Wai Lin, Nyi Nyi Zaw, Kyaw Kyaw, Kyaw Win and Myo Min without delay;
   • – to ensure that no person will be punished for exercising his or her rights to freedom of association, opinion and expression;
   • – 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; and to issue instructions to that effect to its civil and military agents.
   • The Committee expects that all of the above recommendations will be fully implemented as a matter of urgency and requests the Government to keep it informed in this respect.