ILO REPORT ON BURMA 99-05-21

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Subject:       ILO REPORT ON BURMA 99-05-21 (1/4) 


INTERNATIONAL LABOUR OFFICE
                                                                             
Geneva, 21 May 1999

Report of the Director-General to the members of the Governing Body on

Measures taken by the Government of Myanmar following the recommendations of
the Commission of Inquiry established to examine its observance of the Forced
Labour Convention, 1930 (No. 29)

THE REPORT IS ALSO ON THE ILO WEBSITE AT

<http://www.ilo.org/public/english/20gb/docs/gb274/dg-myanm.htm>http://www.
ilo.org/public/english/20gb/docs/gb274/dg-myanm.htm


THIS REPORT IS DIVIDED INTO 4 SLICES FOR EASY DOWNLOADING.

SLICE 1

Introduction

1. At its 274th Session (March 1999), the Governing Body decided:

     (a) to request the Director-General to inform the members of the
Governing
Body, by means of a written report, on or before 21 May 1999, regarding
measures which the Government of Myanmar has taken to comply with the
recommendations of the Commission of Inquiry, together with details of any
technical assistance requested or provided;

     (b) to request the Director-General, in preparing the abovementioned
report, to take into account any comments by the Government of Myanmar, as
well
as information from workers' and employers' organizations and from other
reliable sources:

     (c) and immediately thereafter:  
(i) to request the Director-General to disseminate the findings and
conclusions
of the Commission of Inquiry throughout the UN system and include in the
abovementioned report any responses received; and

(ii) to place on the agenda of the 276th Session of the Governing Body an item
entitled: "Measures including recommendations under article 33 of the ILO
Constitution, to secure compliance by the Government of Myanmar with the
recommendations of the Commission of Inquiry."(1)  
2. By letter of 1 April 1999, referring to the decision made by the Governing
Body at its 274th Session (March 1999), the Director-General of the ILO asked
the Government of Myanmar to inform him in detail, by 3 May 1999 at the
latest,
of any measures taken by the Government on each of the recommendations set out
in paragraphs 539 and 540 of the Commission of Inquiry's report. In reply, the
Government sent two letters, dated 12 and 18 May 1999, which are reproduced as
Appendices 1 and 2.

3. Requests for any available information on the effect given by the
Government
of Myanmar to the recommendations of the Commission of Inquiry were also sent
to international employers' and workers' organizations having consultative
status with the ILO, to a number of intergovernmental organizations and to
governments of member States of the ILO. By 20 May 1999, replies had been
received from the International Confederation of Free Trade Unions, the World
Confederation of Labour, the Confederation of Finnish Industry and Employers,
the Food and Agricultural Organization, the International Maritime
Organization, the International Monetary Fund, the United Nations High
Commissioner for Refugees, the United Nations Industrial Development
Organization, the Universal Postal Union, the World Bank, the Governments of
Bulgaria, Colombia, Costa Rica, Croatia, El Salvador, India, Indonesia, Italy,
Morocco, Peru, Sweden, the United Kingdom and the United States. 

4. In its report,(2)  communicated to the Government of Myanmar on 27 July
1998, the Commission of Inquiry established to examine the observance of the
Forced Labour Convention, 1930 (No. 29), concluded that: 

 ... 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.

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.(3)  

5. "In view of the Government's flagrant and persistent failure to comply with
the Convention", the Commission in its recommendations urged 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, and again announced in the Government's observations on the complaint.
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. 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 [of
the Commission's report] 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 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), 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.(4) 

6. The Commission of Inquiry pointed out that its recommendations "require
action to be taken by the Government of Myanmar without delay".(5) 

7. Information received on the effect given to the recommendations of the
Commission of Inquiry will be set out in three parts, dealing with: (i) the
amendment of legislation; (ii) the exaction in practice of forced or
compulsory
labour, and any measures taken by the Government to stop the practice; and
(iii) the enforcement of penalties which may be imposed under the Penal Code
for the exaction of forced or compulsory labour. 


                                   I. Amendment of legislation

8. In its report, the Commission of Inquiry noted:

 ... that section 11(d), read together with section 8(1)(g), (n) and (o) of the
Village Act, as well as section 9(b) of the Towns Act provide for the exaction
of work or services from any person residing in a village tract or in a town
ward, that is, work or services for which the said person has not offered
himself or herself voluntarily, and that failure to comply with a requisition
made under section 11(d) of the Village Act or section 9(b) of the Towns
Act is
punishable with penal sanctions under section 12 of the Village Act or section
9(a) of the Towns Act. Thus, these Acts provide for the exaction of "forced or
compulsory labour" within the definition of Article 2(1) of the
Convention.(6) 


The Commission further noted that the wide powers to requisition labour and
services under these provisions do not come under any of the exceptions listed
in Article 2, paragraph 2, of the Convention and are entirely incompatible
with
the Convention.(7)  Recalling that the amendment of these provisions had been
promised by the Government for over 30 years and again announced in the
Government's observations on the complaint, the Commission urged the
Government
to take the necessary steps to ensure that the Village Act and the Towns
Act be
brought into line with the Convention without further delay, and at the very
latest by 1 May 1999.(8) 

9. In reply to the request to report on any measures taken on each of the
recommendations set out in paragraphs 539 and 540 of the report of the
Commission of Inquiry, the Government stated, in its letter dated 12 May
1999,(9)  "that the practical measures envisaged to be taken on the
recommendations have been submitted to the Government of the Union of Myanmar
for decision and they are already in the process of being actively considered
by the high authorities". No indication was given regarding the nature of the
"practical measures envisaged to be taken". In its preceding letter of 18
February 1999, again referred to in this connection, the Government recalled:

 ... that as per ILO recommendations to bring the relevant articles of the
existing Village Act and the Towns Act in line with the ILO Convention 29 and
for the Village Act and the Towns Act to be in accord with the present
conditions prevailing in the country, a Working Group at the senior official
level and a Ministerial Committee are now actively engaged in a review
process.

It is a long-standing practice in Myanmar that any law that is enacted in the
country is widely published for the information of the general public. Once
this process has been completed and when the law is promulgated, it will
accordingly be widely published to make it known to the public at large.

10. By letter of 18 May 1999,(10)  the Government indicated: 

 ... that the Ministry of Home Affairs of the Government of the Union of
Myanmar, has issued an Order dated 14 May 999, in which the relevant
authorities were directed not to exercise the powers conferred on them under
the Provisions namely, Section 7 Sub-section (1)(l) and (m), and Section 9 and
9(A) of the Towns Act, 1907, and also Section 8 Sub-section (l)(g), (n) and
(o), Section 11(d) and Section 12 of the Village Act, 1907.

The Government added "that this Order clearly stipulated that any person who
fails to abide by this Order shall have action taken against him under the
existing law". Finally, the Government pointed out that the Order has already
been made public and has been circulated to all state bodies, government
ministries and all local administrative bodies and will be published in the
Myanmar National Gazette where all laws, procedures, notifications,
regulations
and directives are published, and that it was made known to local and
international media at the conclusion of the ASEAN Labour Ministerial Meeting
in Yangon on 15 May 1999.

11. Thus, by 18 May 1999, neither the Village Act nor the Towns Act had been
amended, as requested in the recommendations of the Commission of Inquiry, nor
had any draft law proposed or under consideration for that purpose been
brought
to the knowledge of the ILO. However, an Order "not to exercise the powers"
under the Acts has been announced by  the Government in its letter of 18 May
1999. The text of the Order made on 14 May 1999, which was not included in the
Government's letter, is reproduced as Appendix III and will be considered in
Part II.B. below.

12. In a communication of 3 May 1999, the Government of the United States
indicated that it:  
 ... is aware of no evidence which would demonstrate that the SPDC(11)  has, or
intends to, abrogate the provisions of the Towns and Village Acts which
provide
the legal (sic) basis for the forced labor policies. The USG understands that
the SPDC recently decided, in fact, to continue its practice of forced labor
and porterage, because it determined it could not afford to pay for the
services now forcibly requisitioned.



















II. The exaction in practice of forced and compulsory labour and any measures
taken to stop it

13. This part of the report will set out information regarding: (a) the
continued exaction of forced or compulsory labour by the authorities; and (b)
any measures taken to stop the practice.


A. Continued exaction of forced or compulsory labour by the authorities

14. In its recommendations of July 1998, the Commission of Inquiry pointed out
that "concrete action needs to be taken immediately" by the Government "for
each and every of the many fields of forced labour examined in Chapters 12 and
13" of the Commission's report to stop the present practice.(12) 

15. In its letters to the Director-General of the ILO dated 12 and 18 May
1999,(13)  the Government of Myanmar did not refer to actual practice followed
since the Commission of Inquiry issued its recommendations. 

16. All information on actual practice that was received by the
Director-General in reply to his request notes the continued widespread use of
forced labour by the authorities, in particular by the military. Information
received on the general pattern observed will be reflected in section (1)
below
before dealing under (2) with specific forms of labour and services as
identified by the Commission of Inquiry in paragraphs 300-461 and 485-502 of
its report.


(1) General observations

17. In its communication of 3 May 1999, the ICFTU draws attention to "relevant
and consistent evidence of the persistence of forced labour in Burma"
contained
in documents from the following sources: Federation of Trade Unions -- Burma
(FTUB), United Nations, Anti-Slavery International, Worldview International
Foundation, Aliran Kasadaran Negara, Karen Human Rights Group, Images Asia,
Shan Human Rights Foundation, Human Rights Foundation of Monland, Mon
Information Service, Chin Human Rights Organization, Karenni Information
Office, State Department of the Government of the United States, National
League for Democracy (Burma) and Committee Representing the People's
Parliament
(Burma).


18. The ICFTU notes that:

Ever since the Commission of Inquiry's report was published, the ICFTU has
continued to receive a wealth of relevant and consistent information, similar
to that submitted to the Commission of Inquiry during its investigation. These
reports demonstrate conclusively that the authorities of the country concerned
have systematically continued, in the period since the Commission of Inquiry
published its Report up to the time of writing, to impose forced labour in a
widespread and systematic fashion. Neither have the authorities desisted in
the
least from carrying out or from condoning all the practices identified in the
report of the Commission as occurring systematically in the context of forced
labour, including arbitrary detention and imprisonment, extortion, torture,
rape, arbitrary and extra-judiciary executions and other grave violations of
fundamental human rights.


19. The ICFTU draws particular attention to:

 ... documents provided by the Karen Human Rights Group (KHRG) which contain
copies of several hundred written, official orders from either the army or the
representatives of the administration, demanding that village heads in Pa'an,
Toungoo, Dooplaya and Papun Districts provide villagers in order to perform
forced labour as porters, messengers and road labourers, or work at army
camps,
as well as orders demanding that said villages provide building materials,
equipment, food and money to various military or civilian administration
units.


As pointed out by the ICFTU, "all these orders are quasi-identical in shape,
style and contents to the hundreds of forced labour orders which the
Commission
of Inquiry had examined and found to be authentic in the course of its
investigation". 

20. Like the earlier orders, those issued after July 1998 never refer to any
legal basis for the authority exercised. Thus, the observation of the
Commission of Inquiry that "the powers to impose compulsory labour appear
to be
taken for granted, without any reference to the Village Act or Towns Act"(14) 
remains valid. 

21. The United Nations High Commissioner for Refugees supplied a note dated 29
April 1999 on compulsory labour practices in Northern Rakhine State, Myanmar,
where UNHCR has been operational since 1994 around the areas of Maungdaw,
Rathedaung and Buthidaung. According to this note:

It is UNHCR's observation that, due in part to its advocacy efforts, there has
been a decreasing trend in compulsory labour practices over the past year.
There has been improvement to the situation in terms of the frequency of
labour
calls, the number of labourers required as well as the number of days of
labour. There also appears to have been more attempts made to pay labourers
for
their work in money or in kind, although the amounts paid are usually meagre
and far below market rate.

     Nonetheless, compulsory labour practices have continued to occur. The
following are some observations:   
* Compulsory labour practices are found to vary from areas to areas according
to the local personalities of the authorities in charge. In some areas, the
authorities do not permit compulsory labour or impose a temporary halt to the
use of compulsory labour, while in some others, recourse is often made to
compulsory labour to undertake menial jobs. 
           
* Compulsory labour is usually exacted by the border immigration authorities
(NASAKA), by the local civil authorities (the "Village Peace and Development
Council" also known as the "VPDC" and the "District Peace and Development
Council" also known as the "DPDC") and the military. 

* It appears that compulsory labour practices are particularly common in
remote
areas, such as in Buthidaung North, as well as in areas near military
establishments/camps. 

* Compulsory labour is commonly used for crop harvesting in farms belonging to
the authorities, for domestic work in the compounds of the authorities and in
portering for the military. On a few occasions recently, there have also been
calls for labour in the construction of agricultural dams. 

* It is reported that while labourers are usually not harassed or ill-treated
during work, nonetheless, they are not provided with food and, in some
instances, supervised by armed personnel. It has also been reported recently,
that on one occasion, failure by some villagers to abide by labour calls have
resulted in their arrest by the authorities. 
     UNHCR has also received information that in order to reduce
disruptions in
adults' income-earning activities, families have resorted to sending children
to perform labour in place of adult members of the families. 

END OF SLICE 1

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