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ILO Conference : Burma - Conv. 87



Convention No. 87: Freedom of Association and Protection of the Right to
Organise, 1948 Myanmar (ratification: 1955). 
A Government representative of Myanmar stated that since the discussion of
this matter before the Committee in 1998, the Ministry of Labour had
provided a draft Trade Union Law to the Central Laws Scrutiny Body. After
legal review by that Body, the draft Trade Union Law was sent back to the
Ministry of Labour for consideration by its Law Review Committee, and for
inter-departmental circle discussions that took into account the comments
of the Central Laws Scrutiny Body. He emphasized that in order to properly
draft the Trade Union Law, it was essential to discuss its provisions with
employers' and workers' organizations during the year 1998-99, namely:
from the Employers' side: Union of Myanmar Federation of Commerce and
Industry;
from the Workers' side: Workers' Welfare Association (numbering 2,242):
Myanmar Cultural Association, Union of Myanmar Films and Musical
Association, Myanmar Literature Workers' Association, Myanmar Construction
Workers' Central Association, Myanmar Video Producers' Association, Myanmar
Women Entrepreneurs' Association, Myanmar Maternal and Child Welfare
Association, Myanmar Medical Association, Myanmar Indigenous Medical
Association, Artists' and Sculptors' Association, Myanmar Nurses'
Association, Transport Workers' Association.
For this reason, discussions were held with a considerable number of such
organizations, which were named by the Government representative. Included
among these organizations were employers' associations (separate entities
that were independent of employers), the Federation of Commercial and
Industrial Employers, and many workers' organizations at every level. These
discussions were held for the benefit of such organizations and the various
existing structures of workers. In taking into account their input on the
draft Trade Union Law, it was also necessary for the Ministry of Labour to
consider that at the time of the discussions there was a financial crisis
in the region that was having an impact upon foreign investors. Moreover,
it was also important when drafting the new Law to consider both the
changes that were taking place as a result of the country's decision in
1998 to move toward a market economy system, and the ongoing preparation of
a new State Constitution. He stressed that the greater the amount of
discussions and input regarding the draft Law, the better it would be
drafted. The Government representative proceeded to emphasize that there
could be no mechanical approach to preparation of new legislation, as each
country had its own situation and circumstances, and that an approach that
was effective in one country might not be appropriate for another country.
In this regard, he quoted the comments of the Director-General to the
Plenary of the International Labour Conference on 1 June 1999 that: "We
must understand the specific context of regions and subregions as well as
the specific circumstances of the Eastern and Central European countries in
transition and countries that are going through a crisis because of the
impact of the international financial system, or the forces of nature. It
is essential to support a retuned ILO that can be sensitive to differences
and can respond with subtleness to the different ways in which the same
problem can manifest itself in different societies. It seems to me
absolutely indispensable to develop this institutional capacity. I believe
it is important to foster a sensitivity about the culture of development.
You cannot really understand problems of development so long as you have a
somewhat mechanical approach and solutions cannot be proposed simply
because they work in other countries. We need a richness of outlook, an
ability to differentiate, to understand the specific situations to respond
to the real problems and propose new solutions." The Government
representative stressed once again that no two countries were alike and
that each should be assessed based on its own situation and facts. In his
view the Committee should therefore be sensitive to and take into account
the different cultures and levels of development of member States. In
conclusion, he stated that progress had indeed taken place since the
examination of this matter by the Committee in 1998, in view of the
drafting of the new State Constitution and of the Trade Union Law, and the
extensive discussions regarding its content, and that this progress should
be taken into account by the Committee.
The Worker members noted that in spite of the rather brief comments made by
the Committee of Experts this year, the repression of freedom of
association in Myanmar was one of the most long-standing and serious cases
of non-compliance with the Convention before the Committee. Given the
complete lack of progress over the years, there was really very little more
for the Committee of Experts to say. The seriousness of the case, however,
was evidenced by the fact that this would be the 13th time in the past 18
years that the Committee discussed the case and the ninth year in
succession. On six occasions, the Committee had placed its conclusions in a
special paragraph of its report and, for the past three years, the
Committee had cited Myanmar as a special case of continued failure to
comply with the Convention. This was quite a dubious record for a
Government that continually claimed to be cooperating with the ILO as heard
once again today. The Worker member recalled that a direct contacts mission
was abruptly cancelled in 1996 without any explanation from the Government.
For the past three years, there did not appear to be any momentum behind
rescheduling this mission; the Worker member asked the Government
representative whether he was able to commit his Government to rescheduling
this direct contacts mission for later this year. Such a commitment would
have more meaning than the mere issuing of an order in relating to
Convention No. 29 just before the opening of the ILO Conference.
The speaker stated that for a number of years, the Government had failed
even to submit reports, as noted with profound regret by the Committee of
Experts last year. This year, the Government had finally submitted a report
reminding the Committee of Experts that a new Constitution was being
drafted as well as a revised labour code. Only when this process was
completed and a new labour code enacted   the Government seemed to be
saying   could it demonstrate in practice its new-found respect for freedom
of association. The Committee of Experts had noted that the drafting of new
labour legislation and a new Constitution had now been in progress for many
years, yet "no specific progress or developments have been communicated ...
in this regard". The Government representative did not mention any
timetable and the Worker members asked the representative whether his
Government was prepared to indicate when this task would be completed.
Also, it would be extremely helpful if the Government would submit draft
texts to the Committee of Experts before the end of the year.
For Workers members, there did not exist any operating trade union law in
Myanmar nor any legal structure to protect freedom of association. As noted
last year, there was a Decree issued in 1988 by the military called the Law
on the Formation of Associations and Organizations (No. 6/88) under which
such associations and organizations had to obtain permission from the
Ministry of Home and Religious Affairs before being established. This Law
stated that the associations and other organizations would be disbanded if
they attempted, incited, encouraged or assisted in undermining law and
order, local peace and security and the smooth and secure operations of
transport and communications. The Worker members wondered whether this was
one of the laws now under revision and, if so, whether the Government could
provide information about its revision to the Committee of Experts.
The Worker members informed the Committee that the General Secretary of the
Federation of Trade Unions of Burma (FTUB), Mr. Maung Maung, was in the
Committee's room. It was precisely Law No. 6/88 which was used 11 years ago
by the then State Law and Order Restoration Council (SLORC) to fire Mr.
Maung Maung and six other members of the All Burma Mining Union. The Worker
members observed that the Government representative continued to remind the
Committee that enacting new legislation could take time. On this point, the
Worker members agreed especially when the legislature that was elected ten
years ago had never been allowed to convene. Many elected Members of
Parliament had been arrested repeatedly over the years. The Worker members
recalled that the Government representative characterized the State Peace
and Development Council (SPDC)   the successor to the SLORC, or in other
words the ruling military junta   as a legislative body.
How could a military junta transform itself into a legislative body? More
importantly, how much longer would the Government need to revise its laws
in order to put it into conformity with the Convention?
The Worker members considered that a change in law   if it ever were to
take place let alone in conformity with the Convention   was only a first
step towards protecting freedom of association in law and in practice.
There were no independent unions in Myanmar today and any attempt to
organize one was dealt with ruthlessly. The courageous few who had tried to
exercise their rights under the Convention did so at great personal risk.
As was mentioned earlier, representatives of the FTUB still languished in
prison serving long prison terms. They were considered terrorists by the
regime. The Worker members observed that the Myanmar Worker delegate was
listed as an oilfields and worksites supervisor for the Myanmar Oil and Gas
Enterprise. He was not even identified with any worker association or
organization. In fact, it was precisely this state enterprise which had
been associated for many years with the alleged use of forced labour to
build the notorious Yadanar gas pipeline.
In conclusion, the Worker members noted that the Committee was once again
asked to accept in good faith the Government's promises that, after 40
years, changes were coming. However, the Committee should not be worn down
by the lack of any real progress for yet another year, as disappointing as
this was. Rather the regime's continuing defiance should make the Committee
more resolute in insisting in the strongest terms possible once again that
Myanmar live up to its treaty obligations under the Convention. This was
not a matter of singling out or picking on Myanmar as stated by the
Government on a number of occasions. The Government should be reassured
that the Committee would drop this case from the list the minute its
obligations under the Convention were met. But until this happened, the
Committee would continue to bring up the matter, year after year for
another 40 years if necessary.
The Employer members thanked the Government for the information provided to
this Committee. They considered that the context of this particular case
was important. They recalled that 44 years ago the Government of Myanmar
had ratified Convention No. 87 and that its failure today to enact
legislation on freedom of association was a fundamental violation of its
international obligations. There was simply no right to organize in Myanmar
and over the years, the Government had showed utter disdain for the
supervisory machinery of the ILO as well as for this Committee. Since 1980,
this case had been discussed over a dozen times and there had been numerous
special paragraphs as well as continued failure to implement the
Convention.
They considered that there was a connection between this case and the case
concerning the Forced Labour Convention, 1930 (No. 29). Indeed, if freedom
of association existed in the country, a vibrant trade union movement would
be fighting to eliminate forced labour.
Furthermore, there was an absence of real legislation on the right to
organize and there was no way to evaluate the true nature of organizations.
They asked the question of what was the timetable of the Government in
order to address these problems. In the view of 44 years of failing to
implement the Convention, they expressed their scepticism with regard to
the Government's commitment. This scepticism was reinforced by the
Government's abstention on the Declaration.
The Worker member of Japan expressed his support for the views of the
Worker members reiterating that this case was one of the worst cases
examined by the Committee of Experts.
The Committee had been commenting on violations by Myanmar in law and in
practice of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), for 40 years focusing on violations in
practice, the speaker asked the Government representative to provide
information regarding the situation with respect to two labour union
leaders, Mr. Myo Aung Thant and Mr. U Khin Kyan. He inquired whether they
had been released from prison and were able to participate in trade union
activities. Furthermore, according to information provided by Amnesty
International, Mr. Than Naing had been arrested in 1977 following a
demonstration, and he was sentenced to five years' imprisonment. After his
release in 1982, he was not reinstated in his position as a government
official, but became a shopowner and a writer. Following social unrest in
1988 Mr. Than Naing had been arrested again and without a proper trial he
was sentenced to life imprisonment. The Government of Myanmar was requested
to provide information whether Mr. Than Naing had been released from prison
in 1998 in application of the law of 1992, pursuant to which all sentences
for life imprisonment were commuted to ten years imprisonment. The speaker
further requested the Government to explain why no trade union delegate had
been accredited to the Conference this year. In his view the person
designated as a Workers' delegate did not seem to be affiliated to a trade
union. Finally, the speaker asked the Government to provide a list of the
trade unions that were authorized to operate freely in Myanmar and to
explain why the Federation of Trade Unions of Burma (FTUB) was compelled to
operate outside the country.
The Worker member of South Africa spoke in full support of the statements
made by the Worker members. He pointed out that, for the past ten years,
the Government representative of Myanmar had stated that Myanmar was in the
process of revising its legislation, but that no progress had been made in
this regard. The Government representative was making the same statements
given ten years ago. It was an "off the shelf" speech upon which the
Government representative of Myanmar made no substantive changes. There
were no legally functioning trade unions in Myanmar and no legal structure
to protect trade unions. There was no legal framework to protect collective
negotiation or to protect workers from acts of anti-union discrimination.
The Federation of Trade Unions of Burma (FTUB) was forced to operate
outside of the country. He recalled that the FTUB was founded in 1991 by
trade unionists who were subsequently fired from their jobs by the military
regime. The FTUB coordinated its activities with the banned National League
for Democracy, which won the 1990 elections, but was prevented from taking
office by the military regime, who nullified the election results.
The FTUB remained under the constant surveillance of government police and
military intelligence agents. He drew the Committee's attention to the fact
that Myanmar had been discussed year after year, but no progress had been
made. Instead, the Government had continued to make promises and denials
and to violate the provisions of the Convention.
Referring to the earlier discussions held in the Committee on the use of
forced labour in Myanmar, he indicated his belief that this issue bore a
direct relationship to the Convention.
He cited a report of the International Confederation of Free Trade Unions
(ICFTU), referring to the arrest and detention of certain trade unionists
who remain imprisoned. In light of the continued violations of the
Convention, the Committee should impose upon Myanmar the severest sanctions
possible under the ILO Constitution.
The Worker member of India stated that the description given by the
Government
representative of Myanmar of the situation in the country was not borne out
by reports received from travellers between India and Myanmar. His
organization had repeatedly attempted to establish contact with trade
unions in Myanmar, without success. If there were free trade unions
operating in Myanmar, why was it impossible to establish contact with them?
Moreover, none of the trade unions in his country had been able to
establish contact with any Burmese trade unions. He considered that this
raised a question which the Government of Myanmar must answer. He also
pointed out that Myanmar could draft new legislation, but the question
remained whether such a law would ensure a true right to organize and
freedom of association for the working class. He underscored the need to
ensure that trade unions are able to operate openly in the country. He
requested the Government representative of Myanmar to supply a list of
operating trade unions so that India could establish contact with them. The
Government of Myanmar should adopt laws allowing the right to organize and
guaranteeing the right of association with international organizations. He
called upon the Myanmar Government to respect and restore the long
tradition of democracy in Myanmar and urged it to accept the
recommendations of the Committee in regard to the Convention.
The Government member of the United Kingdom declared that he was more
disappointed than surprised that this Committee should again be discussing
Burma's continued failure to comply with this fundamental Convention. Once
again, this reflected the regime's disregard for the ILO and for the
welfare of the people of Burma. He fully supported the Committee of
Experts' call for the Burmese authorities to take immediate steps to
guarantee genuine freedom of association without further delay. In light of
the special paragraph and of the discussion on Convention No. 29, he
trusted that this Committee would send the strongest possible signal to the
Burmese delegation that this Committee would no longer tolerate their
refusal to honour their international human rights obligations.
The Government representative explained that the associations previously
mentioned were quasi-trade union associations. They were registered with
the Ministry of Home Affairs, and were independent of the government
structure, operating independently of the Government. In response to the
request from the Worker members that the Government provide a timetable for
completion of the revision of Myanmar's legislation, he indicated that it
was necessary to take account of the country's circumstances, as well as of
the discussions being held in the context of the revisions. The Government
would be reporting regarding progress made in amending its Constitution and
laws, as stated in its last report to the Committee of Experts, but its
ability to do so was dependent upon these circumstances. He, therefore,
asked that the matter be given time and noted that the draft legislation
would become law in due course. The copy of the draft legislation cannot be
given as all draft laws are under the Official Secrets Act [India Act XIX,
1923.] (2nd April, 1923.), substituted by the Union of Burma (Adaptation of
Laws) Order, 1948, which was an Indian Act given under adoption by Myanmar
when it received its independence. Further, responding to comments made by
the Worker member of Japan regarding actions taken by the Government
against certain persons, including those persons not allowed to re-enter
the civil service, he stated that those actions had been taken because
those persons had violated criminal laws, such as by the commission of
terrorist acts.
No terrorist will be condoned under any system of law in any country, even
in Japan. Myanmar does not condone such action also. Civil service in all
countries have their own regulation also. In Myanmar, like in most
countries, when a civil servant commit a crime and sentenced, he is not
allowed to re-enter the civil service. The draft law was being prepared,
but its contents could not be provided to the Committee of Experts, because
draft laws are Official Secrets under the law already explained. Prior to
its submission to the Myanmar legislature, the legislation constituted an
official secret; however, the Government would be glad to provide a copy of
the new law at the appropriate time. In response to the comments of the
Worker member of India, he indicated that his Government had full
information regarding the person detained, and that the Government was
ready to provide this information. He said that there has been a good
relationship between India and Myanmar. There are even businessmen to
invest in Myanmar. Certain business activities are going on. At the same
time, the Worker member of India should write and contact the various
employers' and workers' associations that we have mentioned. Regarding the
credentials of the Workers' representative from Myanmar, reply has already
been made to the Credentials Committee and he quoted letter No. 223/3-20/26
dated 7 June 1999, addressed to the Chairman, and said reference is made in
the said letter. He recalled that the ILO was now persuading countries to
ratify a number of fundamental Conventions that they had not previously
ratified. In this positive atmospshere, it would be unfortunate if one
country, such as Myanmar, were singled out unfairly. He cautioned that this
would signal a warning to other countries, dissuading them against
ratifying additional Conventions.
The Worker and the Employer members requested that this case be mentioned
in a special paragraph.
The Committee noted the statement made by the Government representative and
the detailed discussion which took place thereafter. It recalled that this
case had been discussed by the Committee consistently for over a decade.
The Committee could not help but once again deplore the fact that no
progress had been made toward the application of this fundamental
Convention, despite the repeated calls upon the Government made by the
present Committee and the Committee of Experts. The Committee was also once
again obliged to express its profound regret that serious divergences
between the national legislation and  practice, on the one hand, and the
provisions of the Convention, on the other hand, continued to exist. It
could not help but once again deplore the absence of genuine cooperation on
the part of the Government in this regard. Extremely concerned over the
total absence of progress in the application of this Convention, the
Committee once again strongly urged the Government to adopt, as a matter of
urgency, the measures and mechanisms necessary to guarantee, in legislation
and in practice, to all workers and employers, without distinction
whatsoever and without previous authorization, the right to join
organizations of their own choosing, to protect their occupational
interests and the right to affiliate with federations, confederations and
international organizations, without interference from the public
authorities. The Committee strongly urged the Government to make, without
delay, substantial progress in the application of the Convention, in law
and in practice, and urged the Government to supply a
detailed report to the Committee of Experts this year.
The Committee decided that its conclusions would figure in a special
paragraph of its report.
It also decided to mention this case as a case of continued failure to
implement the Convention.