[Date Prev][Date Next][Thread Prev][Thread Next][Date Index ][Thread Index ]

ILO Report Extract, Part 4 of 4



REPORT OF THE ILO COMMISSION OF INQUIRY ON FORCED LABOUR IN BURMA

Below, please find, in three parts, extracts from parts IV (Examination of
the case by the Commission) and V (Conclusions and Recommendations) of this
report.  Footnotes and some sections of text have been removed to make this
posting as concise as possible.

Text (ASCII) versions of the Report can be obtained by email from the Burma
Peace Foundation in 50 sections of up to 37Kbytes (total 1.298 MB).  Send
an email message to darnott@xxxxxxxxxxx requesting the Report (expect a
delay of several days as a list of recipients is built up).

The Report is also on the ILO website:
http://www.ilo.org/public/english/20gb/docs/gb273/myanmar.htm

Paper copies of the Report can be obtained from ILO Distribution -- contact
Mr Dunand, Email prodoc@ilo,org. 

************
FORCED LABOUR IN MYANMAR (BURMA)
 
Report of the Commission of Inquiry appointed under article 26 of the
Constitution of the International Labour Organization to examine the
observance by Myanmar of the Forced Labour Convention, 1930 (No. 29),
Geneva, 2 July 1998

(f) Other infrastructure work

497. In section 7 of Chapter 12 of the present report, the Commission has
set out its findings(882)  concerning a range of infrastructure projects
(beyond the construction of roads, railways and bridges) for which people
across Myanmar were forced to contribute their labour. What has been stated
above for roads, railways and associated infrastructure(883) also applies
to these projects. There is no basis for linking them to the exceptions in
the Convention concerning military service, normal civic obligations,
prison labour or emergencies (Article 2(2)(e) to (d)). The applicability or
not of the exception concerning minor communal services in Article
2(2)(e)(884) will be considered in the following paragraphs for the various
types of work involved.

498. As regards the use of great numbers of forced labourers on major
projects for the building and repair of dams,(885) hydroelectric power
stations,(886) the digging of a canal linking two townships,(887)
irrigation projects,(888) the construction of airports,(889) or work on
electricity lines linking one major village to a town,(890) the size of
these works or the large number of people or the geographical spread of the
call-up or a combination of all these means that all these projects go far
beyond the scope of "minor communal services", as defined in Article
2(2)(e) of the Convention.

499. Also, the call-up of large numbers of workers (including
non-Buddhists) over four years to build a Buddha museum in the capital city
of Rakhine State(891) and the use of forced labour for the excavation and
restoration of a palace, a site of significant historical importance, or
the cleaning of another major palace of national importance and the
dredging of its moat,(892) or for the building of a 30-mile fence in Kachin
State,(893) or the building of a stadium and construction of local roads
for a national Student Sport Festival held each year in a different
town,(894) all exceed the purview of minor communal services and turn upon
the needs or interests of a community that is different from, and wider
than, that to which the persons called up belong.

500. Similarly, the forced transport of logs for telephone line poles to
and from a river by people from different villages,(895) the construction
of helipads(896) and hotels,(897) the call-up of Rohingya residents to
build new villages for Buddhist Rakhines,(898) the call-up of labour,
including that of non-Buddhists, for the construction and renovation of
pagodas and the construction of a monastery,(899) are all performed in the
direct interests of persons, entities or wider communities that cannot be
identified with the communities to which those doing the work belong.

501. Finally, the building of a new primary school or clinic in a
village,(900) the digging of drainage trenches in a town,(901) or the
building of a public toilet in a village,(902) appear to be performed by
members of the community in the direct interest of the community. But the
call-up of persons once a week or three times a month, for one or two days,
for digging drainage trenches(903) by far exceeds the scope of "minor"
communal services, which must relate primarily to maintenance work and only
in exceptional cases to the building of new facilities(904) and should not
normally exceed a few days per year. Also, these criteria are not met where
persons required to build a new school are simultaneously called upon to
perform other forced labour.(905) As for the building of a public toilet in
a village, which would appear to come undisputably under "minor communal
services", the authoritarian manner in which the villagers were ordered to
do the work(906) follows the routine of the military authorities that does
not include any consultation of the members of the community or their
direct representatives in regard to the need for the services in question
and thus violates the prerequisites of Article 2(2)(e) of the Convention.


(g) General work

502. Where urban residents are called up to carry out regular tasks such as
cleaning and beautifying public areas, roads, the school and hospital
compound, the area around a lake or at an army camp,(907) the criteria set
out in section (f) above also apply: while cleaning an army camp would not
be performed in the direct interest of those called up to do the work, most
of these other tasks might by their nature and purpose come within the
purview of "minor communal services". But the call-up of one person per
household for one day per weekend for such work(908) exceeds by far the
boundaries of "minor communal services", which should not normally involve
more than a few days' work per year,(909) and the apparent absence of any
consultation of those concerned or their direct representatives also falls
short of the standards of Article 2(2)(e) of the Convention.


(3) Requisition of labour, considered in the light of the prohibitions in
Article 4 et seq. of the Convention


(a) Residual relevance of Article 4 et seq. of the Convention

503. In its observations on the complaint, the Government has not invoked
Article 1(2) of the Convention, which allowed for recourse to forced or
compulsory labour during a transitional period, subject to the conditions
and guarantees provided in the Convention.(910) As indicated above,(911)
use of a form of forced or compulsory labour falling within the scope of
the Convention as defined in Article 2 may no longer be justified by
invoking observance of the provisions of Article 1, paragraph 2, and
Articles 4 to 24, although the absolute prohibitions contained in these
provisions remain binding upon the States having ratified the Convention.
In this regard, the Commission noted that the wide powers to requisition
labour and services laid down in the Village Act and Towns Act are
incompatible not only with the obligation to suppress the use of forced or
compulsory labour under Article 1, paragraph 1, read together with Article
2 of the Convention, but even with the provisions of Articles 9 to 14 and
17 to 19 of the Convention.(912) The information provided to, and evidence
gathered by, the Commission shows that national practice as set out in
Chapter 12 likewise violates both the obligation to suppress the use of
forced and compulsory labour(913) and specific prohibitions contained in
Article 4 et seq. of the Convention.


(b) Violation of specific prohibitions

(i) Imposition of forced or compulsory labour for private benefit

504. To the extent that the produce of, or income generated through, forced
labour on projects undertaken by the military for the cultivation of rice,
other food crops, or cash crops such as rubber, on shrimp farms, brick
kilns and logging activities goes to individuals within or outside the
military unit concerned,(914) or that forced labour is used by private
contractors(915) or on the construction of hotels owned by private
interests,(916) the imposition of forced labour not only violates the
obligation to suppress the use of forced or compulsory labour(917) but also
the specific prohibition to impose or permit the imposition of forced or
compulsory labour for the benefit of private individuals, companies or
associations, contained in Article 4, paragraph 1, of the Convention.

505. In their supplementary evidence submitted by a letter dated 31 October
1996, the complainants have alleged "that people living in the vicinity of
the (Yadana) gas pipeline route are regularly forced to work (on the)
construction of the pipeline route itself, and on related infrastructure",
explaining that "Work on the pipeline route has mainly consisted of
clearing the jungle by hand. Related infrastructure work has included
construction of barracks in the area to house SLORC battalions moved into
the region to provide security for the pipeline."(918)

506. As regards the allegations regarding the ground clearance work
mentioned in paragraph 505, the Commission refers to its findings
concerning the facts set out in paragraph 452 above, where it indicated
that, since the Commission was denied access to Myanmar to supplement its
evidence, no finding on this matter could be made.

507. As regards the construction of barracks for military battalions in the
region of the pipeline, the Commission considers that even if the
battalions are in the region to guard the pipeline, in the absence of
further information concerning the security arrangements made between the
Government and the private company or companies involved in the pipeline
project, forced labour used for the construction of military barracks
cannot prima facie be held to be imposed for private benefit in the strict
sense of Article 4 of the present Convention.

508. Construction of the Ye-Dawei (Tavoy) railway was also mentioned by the
complainants in connection with the installation of the Yadana gas
pipeline(919) while such a connection was denied by TOTAL.(920) The
Commission considers that the use of forced labour for the construction of
the Ye-Dawei (Tavoy) railway(921) does not come under Article 4 of the
Convention, it being understood that this railway is a state undertaking,
whether or not the private companies involved in the Yadana project are
among its eventual customers.(922)

509. Finally, as indicated in the Commission's findings concerning the
facts, the Commission, having been denied access to Myanmar, was unable to
make a finding as to whether TOTAL, companies working for TOTAL or the
Yadana gas pipeline project were the beneficiaries of those helipads built
in the region of the Yadana gas pipeline for which there is information
that they were constructed with forced labour.(923)

510. Whether or not the forced labour used on different worksites
considered in paragraphs 505 to 509 above was imposed for private benefit
in the sense of Article 4 of the Convention, the use of forced labour
constitutes a breach of the obligation of the Government to suppress the
use of forced or compulsory labour in all its forms.(924)


(ii) Exaction of forced or compulsory labour from women, children, elderly
people and disabled persons

511. In violation of the absolute prohibition in Article 11, paragraph 1,
of the Convention, forced or compulsory labour is widely imposed on
women,(925) including pregnant women and nursing mothers,(926) children
below the age of 18(927) who may be as young as 12(928) or 10 years(929) of
age and who would otherwise be at school(930) and persons above the age of
45(931) as well as persons otherwise unfit for work,(932) for
portering,(933) messenger service,(934) camp building,(935) sweeping roads
to detect mines,(936) sentry duty,(937) building roads and railways(938)
and other infrastructure works.(939)


(iii) Denial of remuneration and compensation

512. While Article 14, paragraph 1 of the Convention provided for
"remuneration in cash at rates not less than those prevailing for similar
kinds of work", forced labourers in Myanmar are paid only in exceptional
circumstances(940) and then below market rates.(941) Persons serving as
porters are in fact never paid,(942) except when hired as substitutes by
those actually called up,(943) and, rather than being paid, some pay to be
exempted from serving.(944) Those doing forced labour for the building or
maintenance of military camps not only are not paid, neither for their work
nor for any land confiscated from them,(945) but even have to bring the
necessary materials such as wood, plaster or cement,(946) and again, some
of those called up to pay in order to be exempted, or hire
replacements.(947) Persons called up to perform guard duty(948) and
villagers forced to work on agriculture, logging and other production
projects(949) are not remunerated in any way, people forced to work on
roads and railways are not normally paid, only in exceptional circumstances
and then below market rates,(950) and workers called up for other
infrastructure projects are not paid either.(951) Likewise, compensation
for death or injury, required by Article 15 of the Convention, appears to
be minimal in the case of porters (whose families are not normally
notified)(952) and not to be given in most cases where workers are injured
on road or railway building projects.(953)


(iv) Compulsory cultivation

513. Article 19(1) of the Convention prohibits the recourse to compulsory
cultivation otherwise than "as a method of precaution against famine or a
deficiency of food supplies, and always under the condition that the food
shall remain the property of the individuals or the community producing
it". In Myanmar, villagers are not only forced by the military to grow rice
and other food crops in the absence of a risk of famine, but they are also
compelled to grow and harvest cash crops, and in either case the produce is
used or sold by the military and never remains the property of the
individuals or the community producing it.(954)


(4) Punishment of the illegal exaction of forced or compulsory labour

514. Under Article 25 of the Convention, "The illegal exaction of forced or
compulsory labour shall be punishable as a penal offence, and it shall be
an obligation on any Member ratifying this Convention to ensure that the
penalties imposed by law are really adequate and are strictly enforced". As
indicated above, it appears that section 374 of the Penal Code, which
provides for the punishment of those unlawfully compelling any person to
labour against the will of that person,(955) is not being applied in
practice, and persons exacting forced labour in Myanmar are not being
punished.(956) In so far as some of the forced or compulsory labour exacted
in violation of the Convention may be imposed in conformity with the
provisions of the Village Act or the Towns Act that are themselves contrary
to the Convention,(957) the necessary amendments to those provisions of the
Village Act or Towns Act may have to be brought into force before the
corresponding exaction of forced or compulsory labour becomes "unlawful" in
national law and punishable under article 374 of the Penal Code.(958)
However, the provisions of the Village Act and the Towns Act authorizing
recourse to compulsory labour had at some stage been declared obsolete(959)
and are in practice never invoked when imposing forced or compulsory
labour.(960) Moreover, there are a number of instances of exaction of
forced labour, in particular where people are directly rounded up by the
military for compulsory service without a requisition of the village head
or ward authorities,(961) which even under the very wide provisions of the
Village Act and the Towns Act appear unlawful in national law and should
have given rise already to prosecution under article 374 of the Penal Code.
The lack of enforcement in practice of article 374 of the Penal Code
violates the obligations of Myanmar under Article 25 of the Convention.


Part V

CONCLUSIONS AND RECOMMENDATIONS


14. CONCLUSIONS AND RECOMMENDATIONS

515. Before setting out its conclusions and recommendations, the Commission
wishes to address two preliminary questions which relate to the lack of
adequate participation by the Government of Myanmar in the proceedings and
the Government's claim that the work of the Commission, and particularly
the planned visit to Myanmar, constitute interference in the internal
affairs of the country.(962)


(1) PRELIMINARY QUESTIONS

516. After examining the information submitted by the parties,(963) during
its First Session, held in June 1997, the Commission invited the Government
of Myanmar to communicate before 30 September 1997 any written statement it
might wish to present, as well as the names and description of the
witnesses which it wished to be heard during the hearings held from 17-20
and 25-26 November 1997. The Commission also requested the Government of
Myanmar to give an assurance that it would not obstruct the attendance
before the Commission of the witnesses called by the parties and that no
sanction or prejudice to these witnesses and their families would be
incurred as a consequence of their participation in the work of the
Commission. Finally, the Government was also requested to designate the
representative or representatives responsible for acting on its behalf
before the Commission and for dealing with all relevant matters which might
arise at the various stages of its work.

517. In a communication dated 10 November 1997, the Government of Myanmar
informed the Commission that it was unable to provide within the
time-limits established the names of the witnesses that it wished to be
heard. Moreover, the Government did not appoint its representative to act
before the Commission; nor did it provide the assurance requested by the
Commission relating to the protection of witnesses and their families
against reprisals.

518. The Commission's hearings were held without the benefit of the
presence of the Government of Myanmar, although it had been duly informed
of the dates on which they would be held, and the information received from
the complainants and from other sources was transmitted to it in due
time.(964) In this respect, the Commission concluded that the Government of
Myanmar had abstained in full knowledge that it was not availing itself of
its right to be present at the hearings. In these circumstances and
considering the time that had elapsed since the filing of the complaint,
the Commission considered that it had to proceed with its work in order to
ensure that the complaint was examined expeditiously, avoiding all undue
delay and thereby guaranteeing a fair procedure.(965)

519. Following that session, the Commission considered that it would be
useful for it to visit Myanmar to supplement the information in its
possession and it sent a letter to this effect to the Government of Myanmar
on 28 November 1997. On 12 December, the Government of Myanmar informed the
Director- General of the ILO that it could not authorize a visit by the
Commission of Inquiry, on the grounds that, in its opinion, such a visit
would not really contribute to resolving the matter and would be an
interference in the internal affairs of the country.

520. With regard to the alleged interference in the internal affairs of the
country, the Commission takes the view, as was done by a previous
Commission of Inquiry,(966) that by virtue of its Constitution the ILO was
established to improve conditions of labour and that it follows that the
matters dealt with by the Organization no longer fall within the exclusive
sphere of competence of States (domaine rserv). Therefore, the action taken
by the Organization in this case, namely the institution of a Commission of
Inquiry with full fact-finding and investigative powers, cannot be
considered to be undue interference in internal affairs, since it falls
precisely within the terms of reference that the ILO has received from its
Members with a view to attaining the aims assigned to it. Moreover, the
establishment of such a Commission of Inquiry by the ILO is explicitly
provided for in the Constitution of the ILO and is only possible in cases
in which the Convention in question has been ratified by the State against
which the complaint is made.(967) Indeed, once a State has by a free and
sovereign decision, not only joined the ILO but also ratified an
international labour Convention, neither the establishment of a Commission
of Inquiry nor its functioning are subject to the agreement or cooperation
of the State concerned.

521. The objection based on undue interference in the internal affairs of
Myanmar is thus devoid of any legal validity, particularly as article 27 of
the Constitution of the ILO includes the undertaking by each member State
to "place at the disposal of the Commission all the information in [its]
possession which bears upon the subject-matter of the complaint". This
provision clearly shows that member States, and a fortiori, the State which
is the subject of the complaint, are under indeed an obligation to
cooperate with the procedure and cannot, by a refusal to cooperate, prevent
the functioning of the procedure.

522. The question nevertheless arises whether the non-cooperation of the
Government of Myanmar has in practice had a bearing on the capacity of the
Commission to establish the facts of the present case.

523. The Commission has sent voluminous documentation which it received
since the beginning of the procedure to the Government for comment. It thus
expected the Government of Myanmar to participate in the procedure, in
particular by placing at its disposal information as to the facts and the
law which would have facilitated its assessment of the situation and by
giving it the possibility to visit Myanmar to meet both officials of the
Government and other persons able to provide relevant information. However,
in the absence of such cooperation, all information that the Government of
Myanmar has provided to the Commission has been taken into account as
carefully as possible, as well as the positions that the Government has
adopted up to June 1996 before other ILO bodies, in particular, the
Committee of Experts on the Application of Conventions and Recommendations,
the Committee on the Application of Standards of the ILC and the Committee
set up to consider the representation made by the International
Confederation of Free Trade Unions (ICFTU) in 1993 under article 24 of the
ILO Constitution alleging the non-observance of the Convention by
Myanmar.(968) The Commission also took into account the information
provided in the very substantial communications that it received and the
numerous testimonies of persons with direct and recent experience of the
situation in Myanmar as it relates to forced labour. In this context, the
Commission considers that it had at its disposal factual information that
was amply sufficient to enable it to make a precise assessment of the
situation as a whole and to formulate its conclusions and make the
recommendations required by the situation in relation to the allegations
made in the complaint and the provisions of the Forced Labour Convention,
1930 (No. 29).


(2) TERMS OF REFERENCE OF THE COMMISSION

524. By a letter dated 20 June 1996, 25 Workers' delegates presented a
complaint under article 26 of the Constitution against the Government of
Myanmar for non-observance of the Forced Labour Convention, 1930 (No. 29),
which it ratified on 4 March 1995 and which came into force one year later.

525. In March 1997, the Governing Body set up a Commission of Inquiry in
order to make an objective assessment of the situation raised in the
complaint. On the same occasion, it appointed its members who, chosen for
their impartiality and integrity, undertook in a solemn declaration,
equivalent to that made by judges of the International Court of Justice, to
carry out their tasks and exercise their powers "honourably, faithfully,
impartially and conscientiously".(969)

526. Under the terms of article 28 of the Constitution of the ILO, the
Commission should prepare a report embodying its findings on all questions
of fact relevant to determining the issue between the parties and
containing such recommendations as it may think proper concerning the steps
which should be taken and the time within which they should be taken. In
order to give full effect to its terms of reference, the Commission
considered that its role was not to be confined to an examination of the
information furnished by the parties themselves or in support of their
contentions, but that the Commission should take all necessary measures to
obtain as complete and objective information as possible on the matters at
issue.(970)

527. It is therefore in this spirit of independence and impartiality that
the Commission states its conclusions and presents recommendations as to
the steps which should be taken to remedy the situation on those points on
which it does not consider it to be satisfactory.


(3)  CONCLUSIONS ON THE SUBSTANCE OF THE CASE

528. There is abundant evidence before the Commission showing the pervasive
use of forced labour imposed on the civilian population throughout Myanmar
by the authorities and the military for portering,(971) the construction,
maintenance and servicing of military camps,(972) other work in support of
the military,(973) work on agriculture, logging and other production
projects undertaken by the authorities or the military,(974) sometimes for
the profit of private individuals,(975) the construction and maintenance of
roads, railways and bridges,(976) other infrastructure work(977) and a
range of other tasks,(978) none of which comes under any of the exceptions
listed in Article 2(2) of the Convention.(979)

529. The call-up of labour is provided for in very wide terms under
sections 8(1)(g)(n) and (o), 11(d) and 12 of the Village Act and sections
9(b) and 9A of the Towns Act, which are incompatible with the
Convention.(980) The procedure used in practice often follows the pattern
of those provisions, in relying on the village head or ward authorities for
requisitioning the labour that any military or government officer may order
them to supply;(981) but the provisions of the Village Act and the Towns
Act were never actually referred to in those orders for the call-up of
forced labourers that were submitted to the Commission;(982) it thus
appears that unfettered powers of military and government officers to exact
forced labour from the civilian population are taken for granted, without
coordination among different demands made on the same population,(983) and
people are also frequently rounded up directly by the military for forced
labour, bypassing the local authorities.(984)

530. Failure to comply with a call-up for labour is punishable under the
Village Act with a fine or imprisonment for a term not exceeding one month,
or both, and under the Towns Act, with a fine.(985) In actual practice, the
manifold exactions of forced labour often give rise to the extortion of
money in exchange for a temporary alleviation of the burden,(986) but also
to threats to the life and security(987) and extrajudicial punishment of
those unwilling, slow or unable to comply with a demand for forced labour;
such punishment or reprisals range from money demands(988) to physical
abuse,(989) beatings,(990) torture,(991) rape(992) and murder.(993)

531. Forced labour in Myanmar is widely performed by women,(994)
children(995) and elderly persons(996) as well as persons otherwise unfit
for work.(997)

532. Forced labour in Myanmar is almost never remunerated(998) nor
compensated,(999) secret directives notwithstanding,(1000) but on the
contrary often goes hand in hand with the exaction of money,(1001)
food(1002) and other supplies(1003) as well from the civilian population.

533. Forced labour is a heavy burden on the general population in Myanmar,
preventing farmers from tending to the needs of their holdings and children
from attending school; it falls most heavily on landless labourers and the
poorer sections of the population,(1004) which depend on hiring out their
labour for subsistence and generally have no means to comply with various
money demands made by the authorities in lieu of, or over and above, the
exaction of forced labour.(1005) The impossibility of making a living
because of the amount of forced labour exacted is a frequent reason for
fleeing the country.(1006)

534. The burden of forced labour also appears to be particularly great for
non-Burman ethnic groups,(1007) especially in areas where there is a strong
military presence,(1008) and for the Muslim minority, including the
Rohingyas.(1009)

535. All the information and evidence before the Commission shows utter
disregard by the authorities for the safety and health as well as the basic
needs of the people performing forced or compulsory labour. Porters,
including women, are often sent ahead in particularly dangerous situations
as in suspected minefields, and many are killed or injured this way.(1010)
Porters are rarely given medical treatment of any kind;(1011) injuries to
shoulders, backs and feet are frequent,(1012) but medical treatment is
minimal(1013) or non-existent(1014) and some sick or injured are left
behind in the jungle.(1015) Similarly, on road building projects, injuries
are in most cases not treated, and deaths from sickness and work accidents
are frequent on some projects.(1016) Forced labourers, including those sick
or injured, are frequently beaten or otherwise physically abused by
soldiers, resulting in serious injuries;(1017) some are killed,(1018) and
women performing compulsory labour are raped or otherwise sexually abused
by soldiers.(1019) Forced labourers are, in most cases, not supplied with
food(1020) -- they sometimes even have to bring food, water, bamboo and
wood to the military;(1021) porters may receive minimal rations of rotten
rice,(1022) but be prevented from drinking water.(1023) No clothing or
adequate footwear is provided to porters, including those rounded up
without prior warning.(1024) At night, porters are kept in bunkers or have
to sleep in the open, without shelter or blankets provided, even in cold or
wet situations, often tied together in groups.(1025) Forced labourers on
road and railway construction have to make their own arrangements for
shelter as well as all other basic needs.(1026)

536. In conclusion, the obligation under Article 1, paragraph 1, of the
Convention to suppress the use of forced or compulsory labour is violated
in Myanmar in national law, in particular by the Village Act and the Towns
Act, as well as in actual practice in a widespread and systematic manner,
with total disregard for the human dignity, safety and health and basic
needs of the people of Myanmar.

537. Concurrently, the Government violates its obligation under Article 25
of the Convention to ensure that the penalties imposed by law for the
illegal exaction of forced or compulsory labour are both really adequate
and strictly enforced.(1027) While section 374 of the Penal Code provides
for the punishment of those unlawfully compelling any person to labour
against the will of that person,(1028) that provision does not appear to be
ever applied in practice, (1029) even where the methods used for rounding
up people do not follow the provisions of the Village Act or the Towns Act,
which are in any event never referred to in practice.(1030)

538. A State which supports, instigates, accepts or tolerates forced labour
on its territory commits a wrongful act and engages its responsibility for
the violation of a peremptory norm in international law.(1031) Whatever may
be the position in national law with regard to the exaction of forced or
compulsory labour and the punishment of those responsible for it, any
person who violates the prohibition of recourse to forced labour under the
Convention is guilty of an international crime that is also, if committed
in a widespread or systematic manner, a crime against humanity.(1032)


(4)  RECOMMENDATIONS

539. In view of the Government's flagrant and persistent failure to comply
with the Convention, the Commission urges the Government to take the
necessary steps to ensure:

(a) that the relevant legislative texts, in particular the Village Act and
the Towns Act, be brought into line with the Forced Labour Convention, 1930
(No. 29) as already requested by the Committee of Experts on the
Application of Conventions and Recommendations and promised by the
Government for over 30 years,(1033) and again announced in the Government's
observations on the complaint.(1034) This should be done without further
delay and completed at the very latest by 1 May 1999;

(b) that in actual practice, no more forced or compulsory labour be imposed
by the authorities, in particular the military. This is all the more
important since the powers to impose compulsory labour appear to be taken
for granted, without any reference to the Village Act or Towns Act.(1035)
Thus, besides amending the legislation, concrete action needs to be taken
immediately for each and every of the many fields of forced labour examined
in Chapters 12 and 13 above to stop the present practice. This must not be
done by secret directives, which are against the rule of law and have been
ineffective, but through public acts of the Executive promulgated and made
known to all levels of the military and to the whole population. Also,
action must not be limited to the issue of wage payment; it must ensure
that nobody is compelled to work against his or her will. Nonetheless, the
budgeting of adequate means to hire free wage labour for the public
activities which are today based on forced and unpaid labour is also required;

(c) that the penalties which may be imposed under section 374 of the Penal
Code for the exaction of forced or compulsory labour(1036) be strictly
enforced, in conformity with Article 25 of the Convention. This requires
thorough investigation, prosecution and adequate punishment of those found
guilty. As pointed out in 1994 by the Governing Body 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),(1037) the penal prosecution of those resorting
to coercion appeared all the more important since the blurring of the
borderline between compulsory and voluntary labour, recurrent throughout
the Government's statements to the committee, was all the more likely to
occur in actual recruitment by local or military officials. The power to
impose compulsory labour will not cease to be taken for granted unless
those used to exercising it are actually brought to face criminal
responsibility.

540. The recommendations made by the Commission require action to be taken
by the Government of Myanmar without delay. The task of the Commission of
Inquiry is completed by the signature of its report, but it is desirable
that the International  Labour Organization should be kept informed of the
progress made in giving effect to the recommendations of the Commission.
The Commission therefore recommends that the Government of Myanmar should
indicate regularly in its reports under article 22 of the Constitution of
the International Labour Organization concerning the measures taken by it
to give effect to the provisions of the Forced Labour Convention, 1930 (No.
29), the action taken during the period under review to give effect to the
recommendations contained in the present report. In addition, the
Government may wish to include in its reports information on the state of
national law and practice with regard to compulsory military service.(1038)


(5)  CONCLUDING OBSERVATIONS

541. The Commission notes that in its resolution 52/137 adopted 12 December
1997, the General Assembly of the United Nations "urges the Government of
Myanmar, in conformity with its assurances given at various times, to take
all necessary steps towards the restoration of democracy in accordance with
the will of the people as expressed in the democratic elections held in
1990 and to ensure that political parties and non-governmental
organizations can function freely".(1039) The Commission further notes that
in his report on the situation of human rights in Myanmar submitted 15
January 1998, the Special Rapporteur, Mr. Rajsoomer Lallah, recommended
that "steps should also be taken to restore the independence of the
judiciary and to subject the executive to the rule of law and render unjust
and unjustifiable actions justiciable".(1040)

542. The Commission considers that the impunity with which government
officials, in particular the military, treat the civilian population as an
unlimited pool of unpaid forced labourers and servants at their disposal is
part of a political system built on the use of force and intimidation to
deny the people of Myanmar democracy and the rule of law. The experience of
the past years tends to prove that the establishment of a government freely
chosen by the people and the submission of all public authorities to the
rule of law are, in practice, indispensable prerequisites for the
suppression of forced labour in Myanmar.

543. This report reveals a saga of untold misery and suffering, oppression
and exploitation of large sections of the population inhabiting Myanmar by
the Government, military and other public officers. It is a story of gross
denial of human rights to which the people of Myanmar have been subjected
particularly since 1988 and from which they find no escape except fleeing
from the country. The Government, the military and the administration seem
oblivious to the human rights of the people and are trampling upon them
with impunity. Their actions gravely offend human dignity and have debasing
effect on the civil society. History shows that where human rights are
denied or violated in any part of the world, it is bound to have a chain
effect on the other parts of the world and it is therefore of vital
interest to the international community that such denial and violation of
human rights must be effaced from wherever it occurs. Every man,  woman and
child must be able to live with human dignity and become an equal
participant with others in the enjoyment of the fruits of freedom, liberty
and development. The Commission hopes and trusts that in the near future
the old order will change, yielding place to the new where everyone in
Myanmar will have an opportunity to live with human dignity and to develop
his or her full potential in a freely chosen manner and there will be no
subjection or enslavement of anyone by others. This can happen only if
there is restoration of democracy where people as a whole can wield power
for their common good.


Geneva, 2 July 1998.

(Signed) W. Douglas, Chairperson.

P.N. Bhagwati. R.A. Layton.


* * *

Having signed this report, the members of the Commission wish to thank Mr.
Michel Hansenne, Director-General of the ILO and his staff for the
assistance generously given to the Commission in carrying out its mandate.

The Commission is particularly grateful to Mr. Andr Zenger, Chief of the
Application of Standards Branch who took part in all its sessions and
accompanied the Commission on its visit to the region and to Mr. Max Kern,
a senior official whose great expertise in labour standards was a vital
contribution to the Commission's work. The Commission also wishes to thank
Ms. Anne-Marie La Rosa, whose mastery of the principles of international
law is matched by unusual clarity of thought and expression, and Mr.
Richard Horsey whose knowledge of the region and its languages and whose
lucidity of expression were so helpful to the Commission.