ILC/BURMA: FREEDOM OF ASSOCIATION

[darnott@xxxxxxxxxxx]

Most attention regarding Burma at the ILO has focussed on forced labour. 
Burma is, however, also party to another Core Convention, on Freedom of 
Association and the Right to Organise, and has not had a very comfortable 
time at the ILO regarding its non-compliance with this Convention. Here is 
the Provisional Record of the discussion in the Committee on the 
Application of Standards at the 2001 session of the International Labour 
Conference.

The authoritative version of this text is on the ILO website at

http://www.ilo.org/public/english/standards/relm/ilc/ilc89/pdf/pr-19-2.pdf

(It is about half-way through the report. Search for Myanmar)


REPORT OF THE COMMITTEE ON THE APPLICATION OF STANDARDS

OBSERVATIONS AND INFORMATION CONCERNING PARTICULAR COUNTRIES

I. OBSERVATIONS AND INFORMATION CONCERNING REPORTS ON RATIFIED CONVENTIONS 
(ARTICLE 22 OF THE CONSTITUTION)

B. OBSERVATIONS AND INFORMATION ON THE APPLICATION OF CONVENTIONS


Convention No. 87: Freedom of Association and Protection of the right to 
Organise, 1948

MYANMAR (ratification: 1955). A GOVERNMENT REPRESENTATIVE indicated that, 
as a party to the Convention, his Government had reported on the progress 
made towards its application as much as possible and the information 
provided had been duly reflected in the reports of the Committee of 
Experts. However, there had been times when it had not been possible to 
submit reports due to unavoidable circumstances. He recalled that, 
following the adoption of the resolution by the ILO against his country 
concerning Convention No. 29, his Government had decided to disassociate 
itself from this decision, which it considered unfair and biased. In doing 
so, it had also decided to disassociate itself from Convention No. 87, in 
view of the unwarranted allegations made concerning its application. This 
explained the absence of reports on the Convention in recent years. In view 
of the political will of his Government, and the good cooperative approach 
adopted between Myanmar and the ILO, supported by many well-meaning Members 
of the ILO, it had been possible to register good progress in the 
application of Convention No.  29. With a view to demonstrating its good 
intentions, the Government had therefore decided to appear before the 
Committee, rather than submitting a written response to report on the 
application of Convention No. 87 from which Myanmar had already 
disassociated itself, despite the practical difficulties that it was 
facing. In earlier reports on the application of the Convention, 
information had been provided on the genuine efforts made and the 
difficulties experienced. The principal reason was that Myanmar was going 
through a period of transition from a socialist society to a peaceful 
modern democratic society. He added that when the new Constitution, which 
was currently being drafted, was adopted, it would duly reflect the rights 
of workers, including the rights required under the Convention. In the 
absence of the new Constitution, it had been endeavoured to protect the 
rights of the workers with the existing laws. It had been reported that 
labour laws had been reviewed systematically. For example, the Trade Unions 
Law of 1926 had been reviewed and redrafted to bring it into conformity 
with the new political and economic system. Indeed, a team from the ILO had 
visited the country in 1994 to hold discussions on matters relating to the 
Convention. This had been followed up by a visit of an ILO official in 
1995. Although these visits had not concretized the application of the 
Convention, they had been very useful and amply demonstrated the political 
will of the Government. He emphasized that the Government was taking 
concrete measures to put in place democratic institutions, including the 
rights of workers to form their own unions, and that the existing machinery 
contained provisions to protect the rights of workers. The right of 
association had been granted by the Government and workers' welfare 
associations had been formed in various industries and establishments. 
There were also several professional and trade organizations which were 
functioning well. Indeed, there were now over 2,000 such welfare 
associations, which included mechanisms to promote and protect the rights 
and privileges of fellow workers. It might be said that these organizations 
constituted forerunners of trade unions, which would emerge later in 
accordance with the new Constitution. Before being able to fully comply 
with the Convention, he reiterated that the Government would protect the 
rights and privileges of workers to the fullest extent possible. However, 
he regretted that it would not be possible to provide the draft text of the 
revision of the Trades Union Law at the present time, but hoped that he 
would be able to do so as soon as possible.

THE WORKER MEMBERS thanked the Government representative for appearing 
before the Committee and for his comments. At the outset, they noted that 
they had been surprised and troubled by his comments, that conveyed 
anything but an attitude of cooperation. Especially concerning were the 
representative's comments regarding his Government's repudiation of its 
treaty obligations under Convention No. 87. This was a very serious 
development that, if the Worker members had correctly interpreted his 
statements, cast a serious pall over the Committee's discussion. There was 
really very little more to say than what had been said repeatedly over the 
past 20 years. However, with all the attention given to the forced labour 
issue, the Committee should not overlook the fact that the violation of 
Convention No. 87 by the Burmese Government was clearly one of the most 
serious cases reviewed by the Committee over the last decade. This was the 
14th time the Committee had discussed the case during the past 20 years, in 
fact, including ten out of the past 11 years. On seven of the most recent 
occasions, its conclusions had been set aside in a special paragraph of its 
report, the last four of these as cases of "continued failure to comply 
with the Convention". They regretted that this continued to be a record of 
dubious distinction, a record that would be worsening, given what the 
Government had told the Committee today. The Worker members reminded the 
Committee of the record of a government that had repeatedly expressed its 
"sincere" desire to cooperate with the ILO as the Committee had heard 
during its special sitting on Burma's application of Convention No. 29 
earlier in the week, although it was not what the Committee had heard 
today. The language used by the Committee of Experts concerning the nature 
of the Government's cooperation was strong and clear. The Committee of 
Experts recalled that they had been "commenting upon the continued failure 
to apply the Convention, both in law and practice, for over 40 years". 
Regarding the submission of reports, the Committee of Experts "deeply 
deplored the lack of cooperation on the part of the Government, manifested 
in particular by a total absence of reports under this Convention over the 
past years, despite a serious failure in applying its provisions". They 
also recalled that a direct contacts mission had been abruptly cancelled in 
1996 without any explanation whatsoever. The Government representative 
conveniently ignored this in his comments. Therefore, five years later, the 
commitment to allow a direct contacts mission was seemingly forgotten. In 
expressing the Workers' position, he wished to state clearly that there was 
absolutely no freedom of association inside Burma today, either in law or 
practice. This had been the situation for many years and any attempt to 
freely associate was dealt with quickly and in the severest terms. In 
regard to the law, as the Committee had stated many times in the past, 
there was no operating trade union law in Burma nor any legal structure to 
protect freedom of association. The Committee had discussed Decree No. 6/ 
88, issued after the
military crackdown of 1988. They did not wish to repeat what was said in 
previous years. Suffice it to say that this was a broad decree that 
required all associations and organizations in Burma to be approved by the 
Ministry of Home and Religious Affairs before being established. This was 
clearly a violation of Article 2 of the Convention that stated: "Workers 
and employers, without distinction whatsoever, shall have the right to 
establish and, subject only to the rules of the organization concerned, to 
join organizations of their choosing without previous authorization". The 
Committee had also heard once again about plans for a new Constitution. It 
had heard about this for many years, but noted that a process accepted by 
the people to draft a new Constitution had never been put in place. The 
Committee had also heard about plans to draft a new labour law, as it had 
for many, many years, and once again there appeared to be absolutely no 
progress. The Government had been asked repeatedly to supply drafts to the 
ILO and to accept ILO assistance, such as a direct contacts mission, to 
ensure that it complied fully with Convention No. 87. The requests from the 
Committee of Experts and the Committee had been repeatedly ignored and the 
Committee had heard today that such requests would continue to be ignored. 
In regard to the actual practice inside the country, the Worker members 
informed the Committee that one of their Worker colleagues, Brother Maung 
Maung, had been present at the Conference this year and was present at the 
meeting today. Thirteen years ago, Brother Maung Maung was a leader of the 
All Burma Mining Union inside Burma. Together with six colleagues, he was 
dismissed under Decree No. 6/ 88 for participating in the 1988 
pro-democracy demonstrations. He was forced into exile shortly afterwards 
and helped to establish the Federation of Trade Unions of Burma (FTUB). He 
was currently its general secretary. With offices in a number of countries, 
the FTUB had supported the organization of Independent Trade Unions in a 
number of the ethnic areas and against tremendous odds. The FTUB had even 
been able to organize workplaces inside the country. Of course these units 
were considered illegal and dangerous by the regime since the FTUB was 
banned in Burma as a terrorist organization. Anyone caught belonging to one 
of these units would be severely punished. The Worker members drew the 
attention of the Committee once again to two FTUB leaders, Khin Kyaw and 
Myo Aung Thant, both arrested in 1997. Khin Kyaw, an official of the 
Seafarers' Union of Burma, was serving a 17year prison sentence for his 
trade union activities and Myo Aung Thant, a member of the All Burma 
Petro-Chemical Corporation Union, was serving a life sentence for relaying 
information to union and pro-democracy organizations in exile. His wife was 
also arrested and sentenced to ten years in prison. The Government was not 
very pleased that Mr. Maung Maung was present at the Conference. It seemed, 
when one read the official press, that the Government blamed him for, among 
other things, fabricating the thousands of pages of documentation supplied 
to the ILO confirming the existence of forced labour. He had often been the 
target of vicious personal attack in the official media. The Worker members 
noted that the Government had tried to block Mr. Maung Maung's attendance 
at this year's Conference by challenging his ICFTU credential claiming, 
among other things, that his organization was not legally registered in 
Burma, presumably, under Decree No. 6/ 88. This challenge had been 
summarily dismissed in the Credentials Committee. Such cases of chronic 
noncompliance over many years were extremely frustrating and could expose, 
unfortunately, the limits of what the Committee could achieve. Nonetheless, 
as the Worker member of the Netherlands and others had said on a couple of 
occasions this year, the Committee members were a patient lot and would 
continue to do whatever was necessary for as long as it might take to 
compel the Government to do what it clearly had no intention of doing, 
namely, to comply fully with its treaty obligations under Convention No. 
87. Judging by the Government representative's comments, the Committee's 
patience would continue to be sorely tested. In conclusion, they recalled 
the comments of the Employer members during the discussion of Swaziland, 
that it was not within the mandate of the Committee to deal with broader 
political matters. And of course the Committee typically structured its 
discussions around the comments made by the Committee of Experts regarding 
the violation of a particular Convention by a particular country. However, 
often the Committee could not divorce its discussions from the broader 
political context existing in the country at issue. Surely, the Employer 
members were quite aware of this. Regarding Burma, the Commission of 
Inquiry made quite clear in paragraph 542 of its report that the problem of 
forced labour would not be addressed until a process of political 
normalization occurred. It went without saying that the same could be said 
about freedom of association. Given the total lack of progress over two 
decades towards bringing law and practice into compliance with Convention 
No. 87, a fundamental change in the nature of the regime would be necessary 
before the Committee would see any real progress. As noted during the 
special sitting on Burma's application of Convention No. 29, the Worker 
members sincerely hoped that the current talks between the regime and Aung 
San Suu Kyi would result in a political normalization, a transfer of power 
back to the elected civilian leaders and a return to the rule of law. They 
considered that a release of a few National League of Democracy (NLD) 
leaders from imprisonment during the past few days was a good sign, and 
hoped that these releases would result in the reopening of NLD offices 
around the country so that the current secret talks could develop into a 
full-blown dialogue. They did not know, however, what the outcome of the 
talks would be. At this point, they could only hope, and for the Workers, 
their hopes had been dashed a bit by the comments from the Government 
representative repudiating freedom of association. If these talks failed, 
history had shown that it was only a matter of time before workers would 
drop their tools, leave their workplaces and farms, and exercise their 
right to strike in defence of their most basic human rights. This was 
precisely what had happened in 1988 and was only put down by massive 
military force. In closing, they wished the Committee to know that if this 
ever happened again, the Workers would stand in solidarity with their 
sisters and brothers in Burma, as they did in 1988 and as they did with the 
workers of Poland, South Africa, Chile and elsewhere. Given the context of 
the discussions this year, they hoped and expected that the Employers, too, 
would rally to the support of the Burmese people in their greatest time of 
need.

THE EMPLOYER MEMBERS recalled that the Committee of Experts had been 
commenting on this case for over 40 years. The Conference Committee had 
also discussed this matter repeatedly. In fact, the Conference Committee 
had placed its conclusions regarding Myanmar in a special paragraph on at 
least seven occasions. The crux of the problem was that workers in Myanmar 
had no right to establish trade union organizations without previous 
authorization. This was a clear violation of the right of freedom of 
association contained in the Convention. In the past, the Government had 
indicated that it was in the process of drafting a new Constitution and 
reforming its labour laws. Today, the Government representative indicated 
Myanmar's intent to move away from the Convention because it considered 
that it had been unfairly treated by the Conference Committee. This was the 
reason why the Government had not submitted a report to the Committee of 
Experts. If this statement was intended to be a denunciation of the 
Convention, then it was in contradiction with the Government 
representative's statements regarding his Government's cooperative 
relationship with the ILO. The Government representative had referred to 
the existence of more than 2,000 social welfare associations which were, 
according to his definition, precursor organizations to trade unions. It 
was clear that these organizations were not trade unions. This statement 
created the impression that the Government feared the inhabitants of its 
own country, since it gave them no freedom to freely establish 
organizations to further and defend their interests. It was evident that 
the right of freedom of association did not exist in Myanmar either in law 
or practice. In addition, the Government representative had clearly 
manifested his Government's unwillingness to cooperate with the Committee. 
Under these circumstances, the Employer members had no alternative but to 
simply acknowledge this situation. The Government had taken a political 
position in this matter. However, the ILO and the Conference Committee 
could not influence this political decision. Their mandate was to address 
the consequences of this political decision, namely the manner in which the 
Government complied with its obligations arising out of its ratification of 
the Convention. This case was regrettable since governments normally 
cooperated with the Committee and made efforts to bring their legislation 
and practice into conformity with the provisions of the Convention. 
However, this Government had clearly shown its lack of will to take the 
necessary measures to guarantee fully freedom of association in the 
country. Accordingly, this regrettable situation of the Government's 
continued failure to implement the Convention should be reflected in the 
Committee's conclusions.

THE WORKER MEMBER OF PAKISTAN agreed fully with the statements made by the 
Employer and Worker members in this case. He recalled that Myanmar had 
repeatedly assured the Committee that it intended to revise its labour 
laws. In fact, the Committee had been hearing the same promises since 1980. 
Referring to the Government representative's statements concerning social 
welfare associations, he considered that there was a clear distinction 
between trade unions and these associations. He also pointed out that, 
regardless of the constitutional framework of a country, when a member 
State ratified a Convention, it undertook to bring its laws into conformity 
with that instrument pursuant to basic principles of international law. 
Therefore, the Government's excuse that its laws would be amended in the 
future was unacceptable. Moreover, the Government had repeated the same 
excuse for the past 20 years, but had taken no action in this regard. He 
recalled that the Conference Committee had repeatedly recognized the 
gravity of the situation in Myanmar and had repeatedly urged the Government 
to amend its legislation to provide for freedom of association. The 
Committee had stated this in a special paragraph in 1995, 1996, 1997 and 
1998. The Conference Committee once again deplored the Government's lack of 
cooperation, manifested by its lack of response to the Committee of 
Experts. He pointed out that the principle of freedom of association was 
the life blood of the ILO and that, for this reason, the principle of 
freedom of association was set forth in the Preamble to the 1919 ILO 
Constitution as well as in the 1998 Declaration on Fundamental Principles 
and Rights at Work. He deplored and condemned the situation in Myanmar and 
urged the Government to take special measures to bring its law into 
conformity with the provisions of both Conventions Nos. 29 and 87. He 
expressed the hope that the situation for working men and women in Myanmar 
would improve.

THE WORKER MEMBER OF SENEGAL stated that the indifference of the Burmese 
Government vis-à-vis the Committee was clear. He recalled that the mandate 
of the Committee of Experts consisted in monitoring the application by 
member States of Conventions they had ratified. The case of the application 
of Convention No. 87 by Myanmar was a recurrent item, regularly registered 
on the agenda of the Committee of Experts' sessions. He noted the 
declaration made by the Government representative according to which he 
indicated that a new Constitution and new labour legislation were under 
discussion. In that context, he recalled that it was not the first time 
that the Government made such announcements which were not followed up by 
action. According to the information made available to the Committee of 
Experts, the violations of the Convention continued to be made on a larger 
scale, and the right of workers of Burma to establish trade union 
organizations without previous authorization, which constituted one of the 
basic principles specified in the Convention, remained an objective to be 
attained. The obstacles encountered were numerous, and constituted yet 
another impediment in the application of the very essence of the 
fundamental Conventions of the ILO. The preservation of the public social 
order could not adapt itself to such violations. He reiterated the need to 
reaffirm the position of Convention No. 87 in the legal system of Myanmar. 
The nonobservance by the country of the provisions of Convention No. 87 
topped a long list of violations. He considered that the examination of 
such a case for a number of years by the Committee without any positive 
action taken by the Government, dealt a blow to its relations with the 
Committee. A State that ratified a Convention was obligated to apply its 
provisions including the amendment of relevant legislation, if necessary, 
to repeal or modify the provisions contrary to the ratified Conventions. In 
the case under examination, the Government had promised to adopt 
legislation which had not seen the light of day. He concluded by 
reiterating that the "warning signal" which lay in inscribing a special 
paragraph on the case in the conclusions of the Committee had not yielded 
any results so far. The reason was simply due to the deliberate choice made 
by the Government to operate outside the system. He therefore considered 
that the Government of the country in question should be condemned with 
firmness. He concluded by expressing his appreciation of the "knights of a 
just cause" represented by the trade unionists of Myanmar who were 
participating in the deliberations of the Committee, in spite of the 
difficulties encountered.

THE GOVERNMENT MEMBER OF NORWAY, speaking on behalf of the Governments of 
Denmark, Finland, Iceland, Norway and Sweden, expressed the regret of the 
Nordic countries that the Government had not submitted the required reports 
to the Committee of Experts. In this context, he recalled that the 
Committee of Experts had been commenting upon the Government's continued 
failure to implement Convention No. 87 in law and practice for over 40 
years. The Nordic Governments urged Myanmar to adopt the necessary measures 
to ensure the right of workers to establish, without previous 
authorization, and to join - subject only to the rules of the organizations 
concerned - unions, federations and confederations of their own choosing, 
for the furtherance and defence of their interests. The Nordic Governments 
requested that Myanmar adopt the necessary measures to guarantee fully the 
right to organize and requested it to supply with its next report a copy of 
the most recent draft revision of the Trade Unions Law, so that the ILO 
might assess its conformity with the provisions of the Convention.

THE GOVERNMENT MEMBER OF THE UNITED STATES noted that the Worker and 
Employer members had outlined this case well, and he concurred with their 
views in this matter. He wished to point out that this was a serious case 
and a longstanding one. The Government representative's intervention had 
also been extremely disappointing. It was unfortunate that, for 40 years, 
the Government had failed to take any action to guarantee the rights of its 
workers to establish and join trade unions. While the Government had 
repeatedly promised that new legislation and a new Constitution were being 
drafted, no evidence of this had been presented to the Conference 
Committee. The Government's conduct demonstrated a total disregard for its 
international obligations arising from its ratification of Convention No. 
87, as well as for the rights of its workers. The situation in Myanmar 
constituted a clear violation of a fundamental ILO Convention and his 
Government concurred with the Committee of Experts that the situation was 
totally unacceptable.

THE GOVERNMENT REPRESENTATIVE OF MYANMAR stated that his delegation had 
listened attentively to the statements made by the Employer and Worker 
members, as well as by other speakers. His delegation had explained to the 
Committee the efforts made by his Government and the practical difficulties 
that it had experienced in the application of the Convention. At this 
point, he had no more to add, since he had already mentioned the revision 
of the Constitution of Myanmar and the role played by the various social 
welfare associations in protecting workers. These were the steps taken by 
the Government to comply with the Convention. He stressed that his 
delegation had appeared before the Conference Committee to demonstrate his 
Government's political will to cooperate with the ILO, as well as to hear 
the concerns of the Committee. He considered that the discussion had been 
useful. He had listened carefully to the comments made and his Government 
would take these into account in the future. However, he stressed his 
Government's strong objection to the reference made to the Free Trade Union 
of Burma by the Worker members.

THE WORKER MEMBERS protested against the Government representative's 
statement regarding the Free Trade Union of Burma, an organization with 
which the Workers' group had a longstanding relationship. They defended its 
integrity and credibility and looked forward to the day that the FTUB would 
be allowed to operate in Burma and represent those workers that chose it to 
represent them. The Worker members concurred with the sadness expressed by 
the Employer members in connection with Burma's continued noncompliance and 
hoped that their sadness and anger would be reflected in the Committee's 
conclusions. They assured the Government that the Committee would continue 
to discuss this case until such time as the Government had effected the 
requested changes.

THE EMPLOYER MEMBERS stated that the Conference Committee's work had begun 
with the case of forced labour in Myanmar and ended with Myanmar's failure 
to apply the provisions of Convention No. 87. The Employer members had not 
heard anything new in the concluding statements of the Government 
representative. They recalled the Government's statement that it would 
address the issue of freedom of association in the future and considered 
that this demonstrated the Government's lack of political will to take the 
measures necessary to guarantee the right of freedom of association in 
Myanmar. At this time, this right did not exist in either law or practice 
in the country. They indicated that the deplorable situation of Myanmar's 
continued failure to implement the Convention should be reflected clearly 
in the Conference Committee's conclusions.


CONCLUSIONS

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 on many occasions during the last 
decade. The Committee shared the concern expressed by the Committee of 
Experts that the Government failed to send a report and found itself 
obliged once again to deeply deplore the total absence of cooperation on 
the part of the Government in this regard. In these circumstances, the 
Committee could not but once again continue to deplore the fact that no 
progress had been made towards the application of this fundamental 
Convention, despite the fact that very serious violations had already been 
noted over 40 years ago. The Committee was also once again obliged to 
express its profound regret for the persistence of serious discrepancies 
between the national legislation and practice and the provisions of the 
Convention. These discrepancies concerned the basic principles of the 
Convention. Extremely concerned over the total absence of progress in the 
application of this Convention, the Committee once again strongly insisted 
that the Government adopt, as a matter of urgency, the measures and 
mechanisms necessary to guarantee, in legislation and in practice, to all 
workers and employers, the right to join organizations of their own 
choosing, without previous authorization, and the right of these 
organizations to affiliate with federations, confederations and 
international organizations, without interference from the public 
authorities. It also urged the Government to supply to the Committee of 
Experts for examination this year any relevant draft legislation, as well 
as a detailed report on the concrete measures taken to ensure fuller 
conformity with the Convention. The Committee decided to include its 
conclusions in a special paragraph of its report. It also decided to 
mention this case as a case of continued failure to implement the Convention.