ILO REPORT ON FL IN BURMA: SLICE 9

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[ILO COMMISSION OF INQUIRY ON FORCED LABOUR IN BURMA, SLICE 9] 
 
               
         11. LEGISLATION OF MYANMAR RELEVANT TO THE CASE
 
 
(1)   REQUISITION OF LABOUR UNDER THE 
      VILLAGE ACT AND TOWNS ACT AND 
      SUBSEQUENT ORDERS AND DIRECTIVES
 
237. After having stated for many years that the provisions of
the Village Act (1908) and the Towns Act (1907) which empower
headmen and rural policemen to impose compulsory labour on
residents of the labouring class had become obsolete and were
no longer applied,(278) the Government indicated in October
1993 that "the use of voluntary labour, alleged compulsory or
forced labour, is made only for the urgent necessity in
accordance with the following provisions: (a) section
8(1)(g)(n) and (o) of the Village Act (1908); (b) section 9(b)
of the Towns Act".(279)
 
238. The relevant provisions of section 8(1) of the Village
Act (1908) were submitted by the Government(280) in October
1993 in the following wording: 
 
     Every headman shall be bound to perform the following
     public duties, namely: 
 
     (g) to collect and furnish, upon receipt of payment for
         the same at such rates as the Deputy Commissioner may 
         fix, guides, messengers, porters, supplies of food, 
         carriage and means of transport for any troops or 
         police posted in or near or marching through the 
         village-tract or for any servant of the Government 
         travelling on duty: provided that no headman shall 
         requisition for personal service any resident of such
         village-tract who is not of the labouring class and 
         accustomed to do such work as may be required;
 
     (n) generally to assist all officers of the Government in
         the execution of their public duties; and
 
     (o) generally to adopt such measures and do such acts as
         the exigency of the village may require.
 
Section 7(1)(m) of the Towns Act (1907) corresponds to section
8(1)(n) of the Village Act (1908) and is also preceded by a
proviso "that no headman shall requisition for personal
service any resident of such ward who is not of the labouring
class and accustomed to do such work as may be required".
 
239. Under Section 11 of the Village Act:
 
     Every person residing in the village-tract shall be bound
to perform the following public duties, namely:
 
     [...]
 
     (d) on the requisition of the headman or of a rural
         policeman, to assist him in the execution of his 
         duties prescribed in sections 7 and 8 of the Act and 
         the rules made under the Act.
 
     Explanation: A requisition under clause (d) may be either
general or addressed to an individual.
 
Under section 12 of the same Act:
 
     If any person residing in a village-tract refuses or
neglects to perform public duties imposed upon him by this Act
or by any rule thereunder, he shall, in the absence of
reasonable excuse, the burden of proving which shall lie upon
him, be liable:
 
     (i) by order of the headman, to fine ...; or
 
     (ii) by order of the village committee, on the case being
          referred to it by the headman, to fine ..., or to 
          confinement for a term not exceeding 48 hours in 
          such place as the Deputy Commissioner may appoint in 
          this behalf, or to both; or 
 
     (iii) on conviction by a Magistrate, to fine ..., or to
           imprisonment for a term not exceeding one month, or 
           to both. 
 
240. Similarly, section 9 of the Towns Act (1907) provided
that:
 
     Persons residing in a ward shall be bound to perform the
following public duties, namely:
 
     [...]
 
     (b) on a general or individual requisition of the headman
         to assist him in the execution of his public duties.
 
Section 9A of the same Act provides that:
 
     If any person residing in a ward refuses/neglects to
perform any of the public duties imposed upon him by this Act
or any rule thereunder, he shall, in the absence of reasonable
excuse, the burden of proving which shall lie upon him, be     
liable, on conviction by a magistrate, to a fine ... 
 
241. The Commission notes the indication by Daw Aung San Suu
Kyi(281) that such things as having to gather in the harvest,
or needing to work in the field, would have been accepted as
"reasonable excuse" under the original section 12 of the
Village Act, as reproduced above, but that nowadays, this
provision translated into Burmese has left out the phrase "in
the absence of reasonable excuse", so "under this law, the
authorities are able to force the people in the villages to do
anything they like ...". The Commission did not have at its
disposal the Burmese text of the Village Act, nor of the Towns
Act (the English text of which likewise referred to the
absence of reasonable excuse).(282)
 
242. As regards the range of duties which every headman shall
be bound to perform, and in the execution of which residents
shall be bound to assist him on his requisition (or that of a
rural policeman), section 8(1)(g) of the Village Act
specifically refers to the supply of guides, messengers,
porters, etc., while section 8(1)(n) and (o) of the same Act,
as well as section 9(b) of the Towns Act, also invoked by the
Government(283) in 1993, contain general references to the
execution of "public duties" and "such acts as the exigency of
the village may require". In this connection, the Commission's
attention has been drawn to the fact that provision for the
requisition of "labourers for the making or repair of roads,
embankments or other public works", originally made in section
8(1)(h) of the Village Act, 1908,(284) was specifically
deleted by Burma Act IV of 1924.(285)
 
243. Executive Orders made subsequently under the Village Act
indicated in paragraph 76 that clause (n) of section 8(1) of
the Village Act:
 
     ... is widely worded and must be worked with discretion.
The clause does not cover requisitions for coolies to carry
out forest and other departmental work. Services obtained
under clause (n) legitimately for what are in fact private     
purposes, e.g. repairing the roof of a zayat or clearing a
camping ground or carrying a letter (except from village to    
village in accordance with the custom of the country), should
be paid for.(286)
 
According to paragraph 78 of the same Executive Orders:(287)
 
     Deputy Commissioners should bear in mind that the wide
powers conferred upon them and upon Township Officers
and headmen by the Village Act should be exercised with
judgment and consideration; and that the people of Burma,
and especially of Upper Burma, are apt to submit without much
complaint to annoyances and extortions which are in reality
very burdensome. They should remember that it is their duty to
protect the people from such treatment, and to see that
subordinate officials are kept in check and are not allowed to
abuse their position and power to the harassment and annoyance
of the residents in the tracts committed to their charge. 
 
244. Paragraph 70 of the same Executive Orders(288) stressed
in relation to clause (g) of section 8 of the Village Act that
"all supplies which it costs money or labour to procure and
all carriage should be paid for at full rates".
 
245. Over half a century later, concern about "causing misery
and sufferings to the local population" and the
non-remuneration of labour obtained "from the local populace
in carrying out national development projects, such as
construction of roads, bridges and railways as well as the
building of dams and embankments" (i.e. projects for which the
requisition of labour under former section 8(1)(h) of the
Village Act had been altogether abolished by Burma Act IV of
1924)(289) was expressed in an Order dated 2 June 1995 by the
Chairman of the State Law and Order Restoration Council
(SLORC) to State/Division Law and Order Restoration Councils
on the subject of "Prohibiting unpaid labour contributions in
national development projects".(290) While marked "secret",
this Order has according to the Government(291) "the full
legal force and effect in Administrative Law". The Order makes
no reference to the Village Act or the Towns Act. It notes in
paragraph 1 that "it has been learnt that in obtaining labour
from the local populace in carrying out national development
projects, such as construction of roads, bridges and railways
as well as building of dams and embankments, the practice is
that they have to contribute labour without compensation".
While observing (in paragraph 3) that "causing misery and
sufferings to the people in rural areas due to the so-called
forced and unpaid labour is very much uncalled for", the Order
does not put into question the requisition of labour for
national development projects but stresses (in paragraph 2)
that "it is imperative that in obtaining the necessary
labour from the local people, they must be paid their due
share". 
 
246. A Directive (No. 82) dated 27 April 1995 by the Chairman
of the SLORC, to the Ministry of Agriculture, the Chairman
of the Yangon Division LORC and the Commander of No. 11 Light
Infantry Division, with the subject "To stop obtaining labour
without compensation from the local people in irrigation
projects" stated that: 
 
     1. It has been learnt that some of the local people are
very concerned over the assignment of each and every family in
the task of digging a certain number of pits for making
ditches and trenches in the overall construction of dams in
Yangon Division.
 
     2. It is hereby instructed to hire paid labourers to
carry out these projects and to stop the practice of obtaining
labour from the local people without monetary compensation.
 
     3. In so doing, the Ministry of Agriculture is to bear
the resulting expenditure.
 
Also marked "secret", this Directive was submitted to the UN
Special Rapporteur.(292)
 
247. Under paragraph 72 of the Executive Orders made pursuant
to the Village Act:
 
     In cases where labour is compulsorily requisitioned under
the provisions of section 11(d) read with section 8(1)(g) of   
the Village Act, the Government accepts the liability to pay
compensation for personal injury by accident or sickness     
arising out of and in the course of the labourers' employment.
The conditions of the grant of compensation will be similar    
to those contained in the Workmen's Compensation Act ...(293) 
 
248. While the Government has indicated that the Village Act
and the Towns Act remain in force, it has not specified the
present status of Executive Orders made under the Village Act.
It has, however, repeatedly stated that porters injured were
compensated in accordance with the prevailing law.(294)
 
 
(2)  RESTRICTIONS ON THE FREEDOM 
     OF MOVEMENT AND CITIZENSHIP
 
249. Where compulsory labour may be imposed on residents of
village-tracts and town wards,(295) restrictions on the
freedom of movement of residents have a bearing on their
exposure to such compulsory labour. The Commission has
received indications that not only all movements are subject
to reporting requirements and every resident is obliged to
register overnight guests with the local authorities,(296) but
also, and more importantly, freedom of movement is restricted
to those residents who carry identity documents that identify
them as citizens.
 
250. Under section 10 of the Foreigners Act, no foreigner
shall travel in Myanmar without a license; under section 12,
every such license shall state the name of the person to whom
the license is granted, the nation to which he belongs, the
district or districts through which he is authorized to pass
or the limits within which he is authorized to travel, and the
period (if any) during which the license is intended to have
effect.(297) According to section 13, the licence may be
granted subject to such conditions as the officer granting the
licence may deem necessary, and may be revoked at any time by
such officer. 
 
251. A large group in Rakhine State, the Rohingyas, have been
progressively denied citizen status. 
 
252. Section 11 of the Constitution of the Union of Burma of
24 September 1947 provided that:
 
     (i)   Every person, both of whose parents belong or
           belonged to any of the indigenous races of Burma; 
 
     (ii)  Every person born in any of the territories         
           included within the Union, at least one of whose    
           grandparents belong or belonged to any of the       
           indigenous races of Burma;
 
     (iii) Every person born in any of the territories
           included within the Union, of parents both of whom  
           are, or if they had been alive at the commencement  
           of this Constitution would have been, citizens of   
           the Union;
 
     (iv)  Every person who was born in any of the territories
           which at the time of his birth was included within 
           His Britannic Majesty's dominions and who has       
           resided in any of the territories included within   
           the Union for a period of not less than eight years 
           in the 10 years immediately preceding the date of 
           the commencement of this Constitution or 
           immediately preceding January 1942 and who intends 
           to reside permanently therein and who signifies his 
           election of citizenship of the Union in the manner 
           and within the time prescribed by law, shall be a 
           citizen of the Union.(298)
 
Notwithstanding the provisions of section 11 of the
Constitution of 1947, the Rohingyas were not recognized by the
Government as citizens, save for those who could establish
their citizenship under subsection (iv). However, section 12
of the Constitution provided that:
 
     Nothing contained in section 11 shall derogate from the
power of the Parliament to make such laws as it thinks fit in 
respect of citizenship and alienage and any such law may
provide for the admission of new classes of citizens or for
the termination of the citizenship of any existing
classes.(299)
 
In 1948, a new Citizenship Act was adopted which restricted
the scope of subsection 11(iv) of the Constitution to any
person "from ancestors who for two generations at least have
all made any of the territories included within the Union
their permanent home and whose parents and himself were born
in any such territories".(300) 
 
253. A further Citizenship Law was adopted in 1982 which
repealed the 1948 Act and defined three categories of
citizens: "citizens", "associate citizens" and "naturalized
citizens". "Citizens" were limited to "nationals such as the
Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and
ethnic groups as have settled in any of the territories
included within the State as their permanent home from a
period prior to 1185 B.E. [Buddhist Era], 1823 A.D.". A list
of recognized ethnic groups was later published including the
Kaman and Zerbadee but not Rohingyas. If a person cannot give
proof of residence of all ancestors prior to 1823 A.D., he or
she can be classified as an "associate citizen" if one
grandparent, or pre-1823 ancestor, was a citizen of another
country. Those persons who had qualified for citizenship under
the 1948 law, but who would no longer qualify under this new
law (i.e. those people whose ancestors came to Burma two
generations prior to 1948), were also considered "associate
citizens" if they had applied for citizenship in 1948.
However, under the new law, an application to be recognized as
an "associate citizen" had to be made within one year of the
promulgation of the law, and after that time all former
foreigners or stateless persons are only able to apply for
naturalization.(301)
 
254. Under the new law, few Rohingyas could qualify as
"citizens" and many would not be recognized as either
"associate citizens" or "naturalized citizens" due not only to
their individual histories but also to the difficulty of
providing evidence substantiating their ancestry. Thus, most
Rohingyas are only recognized as foreign residents.(302) This
was confirmed by the testimonies given by Rohingya witnesses
to the Commission, who reported on the need to ask for
permission each time they were to leave their village.(303)
 
 
 
(3)  COMPULSORY MILITARY SERVICE 
     AND FORCED CONSCRIPTION 
 
255. There is a People's Militia Act, 1959, which was
published in the Official Gazette. Under the provisions of the
Act,(304) Myanmar nationals can be called up for full-time or
part-time service in the armed forces. Under section 3(a),
subparagraphs 1 and 2, all men from age 18 to 35 and all women
from age 18 to 27 can be called for full-time service in the
armed forces for a period of not less than six months and not
more than 24 months; under subparagraphs 4 and 5, doctors,
engineers or persons having any other skill can be called for
military service for a period of 24 months between the ages of
27 and 35 in the case of women, and for a period of 18 months
between the ages of 35 and 56 in the case of men.(305) Under
section 3(b), all men from age 18 to 46 and all women from age
18 to 35 can be called for part-time service, i.e., for a
total of not more than 30 days a year, which may be increased
by seven days in certain cases.
 
256. The People's Militia Act, as adopted in 1959, does not
contain any provisions under which work or service is to be
exacted for work of a non-military character.(306)
 
257. Under section 1(2) of the People's Militia Act, "This Act
shall come into force on a day to be notified by the
Government". The Commission is not aware whether such
notification has been made and the Act brought into
force.(307)
 
 
(4)  SANCTIONS FOR ILLEGALLY IMPOSING 
     FORCED OR COMPULSORY LABOUR
 
258. Under section 374 of the Penal Code:(308)
 
     Whoever unlawfully compels any person to labour against
the will of that person shall be punished with imprisonment of
either description for a term which may extend to one year, or
with fine, or with both.
 
_________________________
 
NOTES
 
278. See paras. 121 to 123 above. 
 
279. See para. 145 above. 
 
280. See report of the Committee set up to consider the
representation made by the ICFTU under article 24 of the ILO
Constitution alleging non-observance by Myanmar of the Forced
Labour Convention, 1930 (No. 29) (quoted in footnote 84
above), para. 45. 
 
281. Transcript of Daw Aung San Suu Kyi's address to the EU
GSP Hearings, doc. 129 at p. 4283. 
 
282. Section 9A of the Towns Act, see para. 240 above. 
 
283. See para. 237 above. 
 
284. Text in doc. H9 at p. 5843. 
 
285. Doc. H10 at p. 5858. 
 
286. Doc. H7 at p. 5802 and doc. H10 at pp. 5870-5871. 
 
287. Doc. H10 at p. 5871. 
 
288. ibid., at p. 5869. 
 
289. See para. 242 above. 
 
290. See the full text of the Order in Appendix XII. The Order
was transmitted by the Government of Myanmar as "Annexure
I" to its "Progress report on measures taken by Myanmar
Government to abolish recourse to forced labour" dated 30 Sep.
1996 and submitted to the Director-General of the ILO. 
 
291. "Progress report on measures taken by Myanmar Government
to abolish recourse to forced labour", dated 30 Sep. 1996,
para. 15. 
 
292. Full text in UN doc. CES E/CN.4/1996/65, p. 42 (Annex
III). 
 
293. Doc. H10 at p. 5870. 
 
294. e.g. para. 112 above. 
 
295. See paras. 237 et seq. above. 
 
296. e.g., under Order No. 1/90 issued by the Rangoon Division
LORC on 22 May 1990 and transmitted by the Burma Broadcasting
System the same day, "Responsible officials are to report to
the Law and Order Restoration Councils concerned regarding
people missing from and guests and strangers visiting the 42
townships of Rangoon Division. Failure to report will result
in effective action being taken against both the official
responsible and the guilty party. This has already been
announced in Order No. 1/89 of the Rangoon Division Law and
Order Restoration Council on 18 July 1989, the first day of
the waning moon of Waso, 1351 Burmese era." See also Article
XIX, "Burma Beyond the Law", Aug. 1996, p. 56 (appended to the
supplementary evidence submitted by the complainants 31 Oct.
1996, but not included in Appendix I to the present report),
and statements by witness(es). 
 
297. Quoted from Burma Code, 1943, Vol. I, p. 18. 
 
298. Quoted from United Nations, "Human Rights Yearbook" 1947,
p. 65.  
 
299. ibid. 
 
300. Quoted from Human Rights Watch/Asia, doc. 154 at p. 4918.
According to Human Rights Watch/Asia "as a measure to
prevent the continued immigration of Indians into Burma, all
residents in Burma were required to apply for registration
within one year of the 1948 law and were given identity cards.
Many Rohingyas registered and were given cards which enabled
them to vote during the democratic period between 1950 and
1962. After the military coup in 1962, Rohingyas claim that it
became increasingly difficult for the children of recognized
citizens to receive citizenship. The law required parents to
register their children when they reached the age of ten, so
that in many families those born before 1952 will have cards,
whereas when their younger siblings applied, they simply never
received a response. In 1974, a new constitution was
introduced to enshrine the one-party state that had
effectively existed since 1962. Those Rohingyas who were not
considered citizens under the 1948 law and who could not
provide evidence of the families' residence in Burma for two
generations prior to 1948 were only able to apply for
Foreigners Registration Certificates (FRC). Once again new
identity cards were issued, and again, Rohingya interviewees
claimed that when their cards were given in for replacement,
they never saw them again. When 200,000 Rohingyas fled to
Bangladesh in 1976, the Government of Burma claimed that they
were all illegal immigrants who fled when they were unable to
produce their identification papers during a routine
immigration check. Shortly after the last refugees were
forced back to Burma in 1980, the Government drafted a new
Citizenship Law, which was promulgated in 1982. Both the
timing and content of the 1982 law indicated that it was
deliberately targeted at the Rohingyas, while also
discriminating against other Asian immigrants who had entered
the country during the British colonial period. This includes
others of south Asian origin, and ethnic Chinese. The total
population of immigrants is thought to be around one million
people" (in this connection, Human Rights Watch/Asia also
refers to Martin Smith: "Ethnic groups of Burma", Anti-Slavery
International, doc. 153 at p. 4728 ff. 
 
301. Blaustein and Flanz (eds.): Constitutions of the World,
New York, 1990, Union of Myanmar, p. 8; see also Human
Rights Watch/Asia, doc. 154 at p. 4919. According to Human
Rights Watch/Asia, the law defines a naturalized citizen as
one who has a parent who was a full citizen and one who was an
associate citizen (or qualified for citizenship under the 1948
law). But a naturalized citizen must also "speak well one of
the national languages", "be of good character" and "be of
sound mind". Only full and naturalized citizens are "entitled
to enjoy the rights of a citizen under the law, with the
exception from time to time of the rights stipulated by the
State". 
 
302. Human Rights Watch/Asia, ibid. 
 
303. See statements of Witnesses 53, 54, 61, 76, 86 and 88. 
 
304. Commission of Inquiry unofficial translation from the
Burmese text at its disposal. The title of the Act refers to
those employed in the militia, not the militia itself, and
thus directly translates as "Militia-members Act".  
 
305. According to a United States Department of Labour Report
on Law and Practice in the Union of Burma of 1964 (BLS Report
No. 264), "Doctors are now subject to conscription upon
graduation from medical school and must serve for an
indefinite period according to military needs". The People's
Militia Act, as adopted in 1959, does not provide for doctors
to serve for an indefinite period, but only within the limits
indicated above. 
 
306. That is to say, for work incompatible with Art. 2(2)(a)
of the Convention. 
 
307. According to the United States Department of Labor Report
of 1964, op. cit., note 305, the Act had not yet been
implemented then. See also the more recent indications
referred to in para. 389 below. 
 
308. Quoted from Burma Code, 1944, Vol. IV, p. 93. 
 
[END OF SLICE 9]