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(Part 1 of 3) Appendices to the Report of the ILO High-level team.
Divided into 3 parts for easier downloading. The version on the ILO site is=
=20
authoritative.

Appendices to the Report of the ILO High-level team (PDF 1014K)
http://www.ilo.org/public/english/standards/relm/gb/docs/gb282/pdf/gb-4-ax.p=
df

*******************************************************

INTERNATIONAL LABOUR OFFICE

GB. 282/4/Appendices

282nd Session

Governing Body Geneva, November 2001

FOURTH ITEM ON THE AGENDA

Developments concerning the question of the observance by the Government of=
=20
Myanmar of the Forced Labour Convention, 1930 (No. 29)

Report of the High-Level Team (HLT)

Contents

Appendices

I. Understanding on an ILO objective assessment... 1

II. Biographical information of the members of the HLT... 2

III. Communication dated 31 August 2001 from the HLT to the Minister for=20
Foreign Affairs of Myanmar... 3

IV. Communication dated 7 September 2001 from the Permanent Mission of=20
Myanmar to Sir Ninian Stephen... 4

V. Individual observation of the Committee of Experts on the Application of=
=20
Conventions and Recommendations (2001 report)... 5

VI. Detailed itinerary of the HLT ... 11

VII. Map of Myanmar... 17

VIII. Myanmar terms, acronyms, and alternative spellings of places=20
visited.. 18

IX. Summary of the meeting between the HLT and Senior General Than Shwe...=
 19

X. List of documents submitted to the HLT... 22

XI.

(a) Communication dated 13 October 2001 from the HLT to Senior General Than=
=20
Shwe... 26

(b) Communication dated 26 October 2001 from Lieutenant-General Khin Nyunt=
=20
to the HLT... 27

XII. Structure of the Myanmar Court System... 29

XIII. Relevant legislation and orders. .... 30


Appendix I

Understanding on an ILO objective assessment

Recalling previous discussions which were reported to the Governing Body at=
=20
its March 2001 session relating to the possibility of an objective=20
assessment being carried out by the ILO with respect to the practical=20
implementation and actual impact of the framework of legislative, executive=
=20
and administrative measures reported by the Government, within the overall=
=20
objective of the complete elimination of forced labour in law and in=
 practice;

Recognizing now the desirability of such an assessment being carried out as=
=20
soon as practicable;

Noting the importance in this connection of the observation made by the ILO=
=20
Committee of Experts on the Application of Conventions and Recommendations=
=20
in its 2001 report;

Aware of the need to respect the sovereign right of the country as well as=
=20
the independence of the Organization in the discharge of its functions;

The Government of Myanmar agrees to receive a high-level team (HLT) to=20
carry out an objective assessment under the following conditions designed=20
to ensure its credibility:

1. The team will be composed of high-level persons appointed by the ILO=20
Director-General on the basis of their recognized qualifications,=20
impartiality and knowledge of the region.

2. Taking into consideration seasonal weather conditions, the assessment=20
shall be carried out in September 2001. The time needed to carry out the=20
assessment in Myanmar could involve up to three weeks.

3. The members of the HLT shall enjoy, for the purpose and duration of the=
=20
mission, the same protection and status accorded to officials of comparable=
=20
ranks in the United Nations.

4. The HLT shall have complete discretion to establish and implement its=20
program of work, meetings and visits, taking into account the indications=20
provided, inter alia, in the aforementioned observation of the Committee of=
=20
Experts on the Application of Conventions and Recommendations, and subject=
=20
only to valid considerations of security. For this purpose, the HLT shall=20
be accorded full cooperation from the relevant Myanmar authorities. During=
=20
the establishment and implementation of the HLT's programme, the HLT and=20
the Government may call upon the assistance of a facilitator recognized by=
=20
all parties concerned as being a knowledgeable and fair intermediary.

5. Based on the results of the assessment, the HLT may provide such advice=
=20
and comments as it deems appropriate.

6. The report of the HLT will promptly be made available to the=20
Director-General and the Government and transmitted to the Governing Body=20
for consideration at its November 2001 session.

19 May 2001.
(Initialed) U. Soe Nyunt,
Chairman of the Myanmar Negotiating Team.


Francis Maupain.

******************************

Appendix II

Biographical information of the members of the HLT

The Right Honourable Sir Ninian STEPHEN, KG, AK, GCMG, GCVO, KBE=20
(Australia), former Governor-General of Australia; former Justice of the=20
High Court of Australia; former Chairman, Strand Two of the Talks on=20
Northern Ireland; former Judge of the United Nations International Criminal=
=20
Tribunals for the former Yugoslavia and Rwanda; former Commonwealth of=20
Nations Special Envoy to Bangladesh; Former Chairman, United Nations Expert=
=20
Group on Cambodia; Former Australian Special Ambassador for the=20
Environment; former Chairman, Constitutional Centenary Foundation,=20
Antarctic Foundation, National Library of Australia, Australian Banking=20
Industry Ombudsman Council, Australian Citizenship Council; Chair,=20
Australian Blood and Blood Products Review; member of the Ethics Commission=
=20
of the International Olympic Committee.

Ms. Nieves ROLDAN-CONFESOR (Philippines), former Philippines Secretary of=20
Labour and Employment; former Presidential Adviser on International Labour=
=20
Affairs; former Chair, ILO Governing Body; former director of the=20
Philippine National Bank, the Landbank of the Philippines; board member of=
=20
the Social Security System Commission; Chairperson, National Wages and=20
Productivity Commission, the Technical Education and Skills Development=20
Authority, the Philippine Agrarian Reform Council, and the National=20
Economic Development Authority; former head of the Panel of Experts to the=
=20
Congressional Commission to amend the Labour Code; former Chair, ASEAN=20
Labour Ministers' Meeting; Expert-adviser to the ILO Governing Body on the=
=20
follow up to the ILO Declaration on Fundamental Principles and Rights at=20
Work; member of the Operating Council of the Global Alliance for Workers=20
and Their Communities; consultant/ expert/ external collaborator to the=20
World Bank, the Asian Development Bank, the UNDP, the ILO, the ASEAN=20
Secretariat, and various national and regional institutes and NGOs on=20
social policy, social protection strategies, human resource development,=20
institutional reform and governance, conflict prevention, and management;=20
faculty, Asian Institute of Management (Philippines).

Mr. Kulatilaka Arthanayake Parinda RANASINGHE (Sri Lanka), retired Chief=20
Justice of Sri Lanka; former member of Judicial Tribunal to inquire into=20
allegations made against the then Head of the Judiciary of Malaysia; former=
=20
Visiting Expert, United Nations Asia and Far East Institute for the=20
Prevention of Crime and Treatment of Offenders, Tokyo; member of several=20
Arbitral Tribunals dealing with Commercial Arbitration; President, Sri=20
Lanka Chapter of the Asia Crime Prevention Foundation.

Mr. Jerzy MAKARCZYK, LL. D (Poland), Judge, European Court of Human Rights;=
=20
Professor of Public International Law, Institute of Legal Sciences, Polish=
=20
Academy of Sciences; former Deputy Minister of Foreign Affairs; former=20
Secretary of State, Ministry of Foreign Affairs; in charge of negotiations=
=20
with USSR and then Russia on withdrawal of troops from Polish territory; in=
=20
charge of negotiations for the admission of Poland to the Council of=20
Europe; former President, International Law Association; member, Institute=
=20
of International Law; has given lectures, seminars and acted as a=20
consultant at various universities in Japan, South Korea, Sri Lanka, India,=
=20
Thailand and the Philippines.

*********************************

Appendix III

Communication dated 31 August 2001 from the HLT to the Minister for Foreign=
=20
Affairs of Myanmar

Dear Minister, In my capacity as Chairperson of the ILO High-Level Team, I=
=20
am pleased to confirm, after consultations with the Permanent Mission of=20
Myanmar in Geneva, that the Team will arrive in Yangon in the morning of 17=
=20
September and will spend the first week in the capital. We will then be in=
=20
a position to give you further details concerning our plans for the=20
following two weeks.

I also wish to inform you that the Team discussed other arrangements, and=20
in particular the matter of precautionary measures as regards persons whom=
=20
the Team may wish to contact, which was raised in the letter dated 28=20
August 2001 from the ILO Director-General to Ambassador Mya Than. In this=20
connection, the Team asked me to seek confirmation of a solemn commitment=20
on the part of the authorities of Myanmar which would be made through us to=
=20
the international community that no action of any kind will be taken=20
against persons or their families, or organizations, who may directly or=20
indirectly contribute information to the Team or to the discharge of its=20
mandate, nor indeed seek to identify such persons. This protection extends,=
=20
but is of course not limited to, the fact that the authorities should not=20
seek to interfere with arrangements by the Team to meet certain persons in=
=20
private.

The High-Level Team also came to the conclusion that the most efficient way=
=20
to carry out its mandate would be to have a chartered plane at its disposal=
=20
in Myanmar. Accordingly an aircraft will be chartered in the region and the=
=20
cooperation of the authorities will obviously be required so that the plane=
=20
and its crew can go about their duties in a safe and efficient manner. We=20
trust that, with your kind cooperation, the High-Level Team will thus be=20
able to travel at the time it wishes to the places that it identifies.

I am looking forward to the opportunity of meeting you in Yangon.

Yours sincerely,

(Signed) Sir Ninian Stephen,

Chairperson, ILO High-Level Team.

**********************************

Appendix IV

Communication dated 7 September 2001 from the Permanent Mission of Myanmar=
=20
to Sir Ninian Stephen

Your Excellency,

I wish to refer to your letter Ref: BIT/ ILO of 31 August 2001, addressed=20
to the Minister for Foreign Affairs of the Union of Myanmar, in which you=20
have stated that the High-Level Team wishes to seek the confirmation of a=20
solemn commitment by the Myanmar authorities with regard to the protection=
=20
of the persons and their families who may contribute information to the=
 Team.

In this connection, on behalf of the Honourable Minister for Foreign=20
Affairs, I wish to confirm that the Government will see to it that any=20
action of concern to the ILO High-Level Team, referred to in the letter=20
under reference, does not take place and that the bona fide implementation=
=20
of the mandate by the ILO High-Level Team will not be affected in any=20
manner whatsoever.

May I take this opportunity to convey my warm regards to Your Excellency=20
and the members of the High-Level Team.

Please accept, Your Excellency, the assurances of my highest consideration.

(Signed) Mya Than,

Ambassador/Permanent Representative.

*************************************

Appendix V

Individual observation of the Committee of Experts on the Application of=20
Conventions and Recommendations (2001 report)

Convention No. 29

Myanmar (ratification: 1955)

1. The Committee notes that the Government has not supplied a report on the=
=20
application of the Convention. Following the recommendations of the=20
Commission of Inquiry established to examine the observance by Myanmar of=20
the Forced Labour Convention, 1930 (No. 29), the Committee has, however,=20
taken note of the following information:

=96 the information presented by the Government to the Director-General of=
=20
the ILO in communications dated 21 January, 20 March, 27 May, 29 October=20
(as supplemented subsequently), and 3, 15 and 17 November 2000;

=96 the information submitted to, and the discussions held in, the Governing=
=20
Body of the ILO at its 277th and 279th Sessions in March and November 2000;

=96 the information and discussion at the International Labour Conference at=
=20
its 88th Session (May-June 2000);

=96 the resolution adopted by the International Labour Conference at its=
 88th=20
Session concerning the measures recommended by the Governing Body under=20
article 33 of the ILO Constitution on the subject of Myanmar to secure=20
compliance with the recommendations of the Commission of Inquiry, and the=20
entry into effect of those measures on 30 November 2000, following=20
consideration of the matter by the Governing Body at its 279th Session=20
(November 2000);

=96 the resolutions adopted by the General Assembly of the United Nations at=
=20
its 54th Session (17 December 1999) and by the United Nations Commission on=
=20
Human Rights at its 56th Session (March-April 2000) on the situation of=20
human rights in Myanmar (extracts in International Labour Conference, 88th=
=20
Session, Geneva, 2000, Provisional Record No. 4, Annex III);

=96 the second report of the Director-General of the ILO to the members of=
=20
the Governing Body on measures taken by the Government of Myanmar, dated 25=
=20
February 2000;

=96 the interim report prepared by judge Rajsoomer Lallah, Special=
 Rapporteur=20
of the Commission on Human Rights on the situation of human rights in=20
Myanmar, dated 22 August 2000 [UN document A/55/359]; and the note by the=20
Secretary-General of the United Nations on the same subject, dated 20=20
October 2000 [UN document A/55/509];

=96 the reports of the ILO technical cooperation missions to Myanmar of May=
=20
2000 [ILC, 88th Session, Geneva, 2000, Provisional Record No. 8] and=20
October 2000 [GB.279/6/1 and Add.1];

=96 a communication dated 15 November 2000 in which the International=20
Confederation of Free Trade Unions submitted to the ILO voluminous=20
documentation referring to the imposition of forced labour in Myanmar=20
during the period June-November 2000, a copy of which was sent to the=20
Government for such comments as it may wish to present;

=96 a press release issued on 17 November 2000 by the Ministry of Foreign=20
Affairs of the Union of Myanmar in Yangon, and an information sheet issued=
=20
by the Myanmar Information Committee in Yangon on a press conference held=20
on 18 November 2000 by the Government on the decision of the ILO Governing=
=20
Body to activate measures on the subject of Myanmar.

2. Information available on the observance of the Convention by the=20
Government of Myanmar will be discussed in three parts, dealing with: (i)=20
the amendment of legislation; (ii) any measures taken by the Government to=
=20
stop the exaction in practice of forced or compulsory labour and=20
information available on actual practice; (iii) the enforcement of=20
penalties which may be imposed under the Penal Code for the exaction of=20
forced or compulsory labour.


I. Amendment of legislation

3. In paragraph 470 of its report of 2 July 1998, the Commission of Inquiry=
=20
noted:

=85 that section 11(d), read together with section 8(1)(g), (n) and (o) of=
=20
the Village Act, as well as section 9( b) of the Towns Act provide for the=
=20
exaction of work or services from any person residing in a village tract or=
=20
in a town ward, that is, work or services for which the said person has not=
=20
offered himself or herself voluntary, and that failure to comply with a=20
requisition made under section 11(d) of the Village Act or section 9(b) of=
=20
the Towns Act is punishable with penal sanctions under section 12 of the=20
Village Act or section 9(a) of the Towns Act. Thus, these Acts provide for=
=20
the exaction of "forced or compulsory labour" within the definition of=20
Article 2(1) of the Convention.

The Commission of Inquiry further noted that the wide powers to requisition=
=20
labour and services under these provisions do not come under any of the=20
exceptions listed in Article 2, paragraph 2, of the Convention and are=20
entirely incompatible with the Convention. Recalling that the amendment of=
=20
these provisions had been promised by the Government for over 30 years, the=
=20
Commission urged the Government to take the necessary steps to ensure that=
=20
the Village Act and the Towns Act be brought into line with the Convention=
=20
without further delay, and at the very latest by 1 May 1999 (paragraph=20
539(a) of the Commission's report).

4. In its previous observation, the Committee noted that by the end of=20
November 1999, neither the Village Act nor the Towns Act had been amended,=
=20
nor had any draft law proposed or under consideration for that purpose been=
=20
brought to the knowledge of the Committee. However, an "Order Directing Not=
=20
to Exercise Powers Under Certain Provisions of the Town Act, 1907 and the=20
Village Act, 1907" (No. 1/99) was issued by the Government on 14 May 1999,=
=20
which in fact still reserved the exercise of powers under the relevant=20
provisions of the Village Act and the Towns Act which remain incompatible=20
with the requirements of the Convention.

5. The Committee notes from the report of the October 2000 ILO technical=20
cooperation mission to Myanmar (GB. 279/6/1, paragraphs 9 and 10, Annexes=20
13 and 19) that a draft text providing for the amendment of the Village Act=
=20
and the Towns Act through an amendment of Order No. 1/99 was not retained=20
by the Government. However, the same report (in Annex 19) reproduces the=20
English text of an "Order Supplementary Order No. 1/99" made by the=20
Ministry of Home Affairs under the direction of the State Peace and=20
Development Council on 27 October 2000 which modifies Order No. 1/99 so as=
=20
to order "responsible persons including members of the local authorities,=20
members of the armed forces" etc. "not to requisition work or service=20
notwithstanding anything contained" in the relevant sections of the Towns=20
and Village Acts, except in cases of emergency as defined in Article=20
2(2)(d) of the Convention (GB. 279/6/1, Annex 19). The Burmese text of this=
=20
Order of 27 October, which was to be published in the Myanmar Gazette, has=
=20
not yet been supplied to the ILO.

6. The Committee observes that the amendment of the Village and Towns Acts=
=20
sought by the Commission of Inquiry as well as the present Committee and=20
promised by the Government for many years has not yet been made. It again=20
expresses the hope that the Village Act and the Towns Act will at last be=20
brought into conformity with the Convention.

7. The Committee nevertheless notes that Order No. 1/99 as supplemented by=
=20
the Order of 27 October 2000 could provide a statutory basis for ensuring=20
compliance with the Convention in practice, if given effect bona fide not=20
only by the local authorities empowered to requisition labour under the=20
Village and Towns Acts, but also by civilian and military officers entitled=
=20
to call on the assistance of local authorities under the Acts. This, in the=
=20
view of the Committee, calls for further measures to be undertaken, as=20
indicated by the Commission of Inquiry in its recommendations in paragraph=
=20
539(b) of its report.


II. Measures to stop the exaction in practice of forced or compulsory=20
labour and information available on actual practice

A. Measures to stop the exaction in practice of forced or Compulsory labour

8. In its recommendations in paragraph 539( b) of its report of July 1998,=
=20
the Commission of Inquiry indicated that steps to ensure that in actual=20
practice no more forced or compulsory labour be imposed by the authorities,=
=20
in particular the military, were:

=85 all the more important since the powers to impose compulsory labour=20
appear to be taken for granted, without any reference to the Village Act or=
=20
Towns Act. Thus, besides amending the legislation, concrete action needs to=
=20
be taken immediately for each and every of the many fields of forced labour=
=20
examined in Chapters 12 and 13 [of the Commission's report] to stop the=20
present practice. This must not be done by secret directives, which are=20
against the rule of law and have been ineffective, but through public acts=
=20
of the Executive promulgated and made known to all levels of the military=20
and to the whole population. Also, action must not be limited to the issue=
=20
of wage payment; it must ensure that nobody is compelled to work against=20
his or her will. Nonetheless, the budgeting of adequate means to hire free=
=20
wage labour for the public activities which are today based on forced and=20
unpaid labour is also required =85.

9. The Committee notes from the report of the October 2000 ILO technical=20
cooperation mission to Myanmar, the suggestion made by the mission of a=20
Supplementary Order or directive from the Office of the Chairman of the=20
State Peace and Development Council concerning requisition of labour or=20
services (GB.279/6/1, Annex 13). The suggested text was to order all state=
=20
authorities, including military, police and civilian authorities and their=
=20
officers, not to requisition persons to provide labour or services for any=
=20
purpose, nor to order others to requisition such labour or services,=20
regardless of whether or not payment is made for said labour or services,=20
except in cases of emergency as defined in Article 2(2)(d) of the=20
Convention. The suggested prohibition was to include but not be limited to=
=20
the requisition of labour or services for the following purposes:

(a) portering for the military (or other military/paramilitary groups, for=
=20
military campaigns or regular patrols);

(b) construction or repair of military camps/ facilities;

(c) other support for camps (such as guides, messengers, cooks, cleaners,=20
etc.);

(d) income generation by individuals or groups (including work in=20
army-owned agricultural and industrial projects);

(e) national or local infrastructure projects (including roads, railways,=20
dams, etc.);

(f) cleaning/ beautification of rural or urban areas.

Similar prohibitions were to apply to the requisition of materials or=20
provisions of any kind and to demands of money except where due to the=20
State or to a municipal or town committee under relevant legislation.=20
Furthermore, the suggested text was to provide that if any state authority=
=20
or its officers requires labour, services, materials or provisions of any=20
kind and for any purpose, they must make prior budgetary arrangements to=20
obtain these by a public tender process or by providing market rates to=20
persons wishing to supply these services, materials or provisions=20
voluntarily, or wishing to offer their labour.

10. The Committee notes that the text suggested by the mission was not=20
adopted, but that the English versions of several instructions dated 27 and=
=20
28 October 2000 and 1 November 2000 were forwarded to the ILO after the=20
departure of the mission and reproduced in addenda to the mission's report=
=20
(GB. 279/6/1( Add.1)
(Rev.1) and (Add.2)).

11. The instruction dated 27 October 2000 "Prohibiting Requisition of=20
Forced Labour" is signed for the Director-General of the Police Force and=20
addressed to all units of the police force. The instruction dated 28=20
October 2000 on the same subject is addressed by the Director-General of=20
the General Administration Department of the Ministry of Home Affairs to=20
all State/Divisional Commissioners and General Administration Departments=20
and requires, inter alia, Order No. 1/99 and the order supplementing it to=
=20
be displayed separately on noticeboards of all the levels of peace and=20
development councils as well as the General Administration Departments.

12. The instruction dated 1 November 2000 "Prohibiting Requisition of=20
Forced Labour" is signed at the highest level, by Secretary-1 of the State=
=20
Peace and Development Council, and addressed to the Chairmen of all State=20
and Divisional Peace and Development Councils. The latter instruction thus=
=20
reaches beyond institutions that come under the authority of the Ministry=20
of Home Affairs. It is, however, primarily directed to the enforcement of=20
Order No. 1/99 and the Order of 27 October 2000 supplementing it, which are=
=20
limited in scope to the requisition of forced labour under the Village Act=
=20
and the Towns Act, i.e. not by civilian or military state officers but by=20
local authorities, who may requisition labour under the Acts when called=20
upon to provide assistance to civilian and military state officers.=20
Nevertheless, the instruction dated 1 November interprets the Supplementing=
=20
Order of 27 October 2000 as follows:

2. =85 The Supplementing Order renders the requisition of forced labour=20
illegal and stipulates that it is an offence under the existing laws of the=
=20
Union of Myanmar. Responsible persons, including the local authorities,=20
members of the armed forces, members of the police force and other public=20
service personnel are also prohibited not to requisition forced labour and=
=20
are instructed to supervise so that there shall be no forced labour.

It would appear to the Committee that a bona fide application of this=20
prohibition should cover the typical case of members of the armed forces=20
who order local authorities to provide labourers, even if the manner of=20
complying with such order =96 through requisition or hiring of labourers or=
=20
otherwise =96 is left to the local authorities.

13. The instruction dated 1 November 2000 continues as follows:

3. Therefore, it is hereby directed that the state and divisional peace and=
=20
development councils shall issue necessary instructions to the relevant=20
district and township peace and development councils to strictly abide by=20
the prohibitions contained in Order No. 1/99 and the Supplementing Order of=
=20
the Ministry of Home Affairs and also to effectively supervise to ensure=20
that there shall be no forced labour within their respective jurisdictions.

4. Responsible persons, including members of the local authorities, members=
=20
of the armed forces, members of the police force and other public service=20
personnel who fail to abide by the said Order No. 1/99 and the=20
Supplementing Order shall be prosecuted under section 374 of the Penal Code=
=20
or any other existing laws.

It would appear to the Committee that again, as set out in paragraph 12=20
above, a bone fide application of the instruction would include, in the=20
scope of point 4 of the instruction, members of the armed forces who order=
=20
local authorities to supply labour.

14. It remains to be seen whether the "necessary instructions" yet to be=20
issued by the state and divisional peace and development councils under=20
point 3 of the instruction of 1 November will contain the kind of details=20
necessary for a feasible implementation. Such details were set out by the=20
Commission of Inquiry in paragraph 539(b) of its report and included by the=
=20
October 2000 technical cooperation mission in its suggestion mentioned in=20
paragraph 9 above.

15. The three instructions forwarded so far to the ILO do not yet contain=20
any positive indication on the manner in which authorities that have been=20
used to rely on forced and unpaid labour contributions of the population=20
are hereafter to make realistic provision for the labour and services they=
=20
may require.

16. Furthermore, the three instructions do not spell out the various forms=
=20
of forced labour found by the Commission of Inquiry and this Committee to=20
be mainly imposed in practice, as listed in paragraph 9 above. In this=20
regard, the Committee recalls that most of the forms of forced labour or=20
services requisitioned concerned the military. The Committee notes that=20
"members of the armed forces" are specifically included among the=20
responsible persons listed in point 4 of the instruction dated 1 November=20
2000 (quoted in paragraph 13 above). However, in point 3 of the same=20
instruction, the order to issue the necessary further =96 and, hopefully,=20
more detailed =96 instructions is addressed to the state and divisional=
 peace=20
and development councils (which in fact include officers of the armed=20
forces), but not to the regional commanders of the armed forces in their=20
military capacity.

17. In the absence of specific and concrete instructions to the civilian=20
and military authorities containing a description of the various forms and=
=20
manners of exaction of forced labour, the application of the provisions=20
adopted so far turns upon the interpretation in practice of the notion of=20
"forced labour". This cannot be taken for granted, as shown by the various=
=20
Burmese terms used sometimes when labour was exacted from the population =96=
=20
including "loh ah pay", "voluntary" or "donated" labour.

The need for clarity on the point is underscored by the Government's=20
recurrent attempts to link the pervasive exaction of labour and services by=
=20
mainly military authorities to merit which may be gained in the Buddhist=20
religion from spontaneously offered help. The Commission of Inquiry=20
recalled in paragraph 539( c) of its report that "the blurring of the=20
borderline between compulsory and voluntary labour, recurrent throughout=20
the Government's statements" was "all the more likely to occur in actual=20
recruitment by local or military officials".

18. Thus, clear instructions are still required to indicate to all=20
officials concerned, including officers at all levels of the armed forces,=
=20
both the kinds of tasks for which the requisition of labour is prohibited,=
=20
and the manner in which the same tasks are henceforth to be performed. The=
=20
Committee hopes that the necessary detailed instructions will soon be=20
issued, and that, in the words of paragraph 539(b) of the Commission of=20
Inquiry's report, provision will also be made for "the budgeting of=20
adequate means to hire free wage labour for the public activities which are=
=20
today based on forced and unpaid labour".


B. Information available on actual practice

(a) The practice August 1998 to December 1999

19. In his reports dated 21 May 1999 and 25 February 2000 to the members of=
=20
the Governing Body, the Director-General indicated that all information on=
=20
actual practice that was received (from workers' and employers'=20
organizations, intergovernmental organizations and governments of member=20
States of the ILO) in reply to his requests, referred to continued=20
widespread use of forced labour by the authorities, in particular by the=20
military.


(b) Information on the practice up to November 2000

20. In its communication dated 15 November 2000, the ICFTU refers to the=20
persistence of severe breaches of the Convention by the military=20
authorities. Documentary appendices enclosed by the ICFTU represent over=20
1,000 pages drawn from over 20 different sources and include reports,=20
interviews of victims; over 300 forced labour orders, photographs, video=20
recordings and other material. A few events described therein took place in=
=20
the first half of the year 2000; an overwhelmingly large proportion of the=
=20
documents concerns the period June to November 2000.

21. An essential part of the ICFTU submission consists of hundreds of=20
"forced labour orders", issued mainly by the army but also by armed groups=
=20
under its control and elements of the local administration. As stated by=20
the ICFTU, these are similar in kind, shape and contents to the orders=20
already examined by the Commission of Inquiry and the regular ILO=20
supervisory mechanisms and found by same to be authentic. Documentary=20
materials submitted refer to the persistence on a large scale of forced=20
portering, including by women, and the murder of forced porters no longer=20
able to carry their burden. In addition to forced portering, all other=20
forced labour practices identified previously by the Commission of Inquiry=
=20
are referred to for the period June to November 2000. A great number of=20
specific reported instances include forced labour for the building and=20
maintenance of roads, bridges, railroads, water canals, dikes, dams and=20
reservoirs, as well as for the building, repair, maintenance and servicing=
=20
of army camps; and the requisition of labour as well as seeds, fertilizer,=
=20
materials and equipment for army-held agricultural land, forests and=20
installations.

22. As indicated above, copies of the ICFTU communication of 15 November=20
2000, including the voluminous documentation submitted, were sent to the=20
Government for such comments as it may wish to present.


III. Enforcement

23. In paragraph 539(c) of its recommendations the Commission of Inquiry=20
urged the Government to take the necessary steps to ensure:

=85 that the penalties which may be imposed under section 374 of the Penal=
=20
Code for the exaction of forced labour or compulsory labour be strictly=20
enforced, in conformity with Article 25 of the Convention. This requires=20
thorough investigation, prosecution and adequate punishment of those found=
=20
guilty.

24. In practice, no action whatsoever under section 374 of the Penal Code=20
has so far been brought to the knowledge of the Committee.

25. The Committee notes that point 4 of the instruction dated 1 November=20
2000 from the State Peace and Development Council to All State and=20
Divisional Peace and Development Councils, reproduced in paragraph 13,=20
provides for the prosecution of "responsible persons" under section 374 of=
=20
the Penal Code. Similar clauses are included in point 3 of the instruction=
=20
dated 27 October, and point 6 of the instruction dated 28 October, referred=
=20
to in paragraph 11 above. Moreover, under points 4 to 6 of the instruction=
=20
dated 27 October 2000, addressed by the Director-General of the Police=20
Force to all units of the police force:

4. If any affected person files a verbal or written complaint to the police=
=20
station of having been forced to contribute labour, the latter shall record=
=20
the complaint in Forms A and B of the police station and send the accused=20
for prosecution under section 374 of the Penal Code.

5. It is hereby directed that the police stations and units concerned at=20
various levels shall be further instructed to make sure their strict=20
compliance with the said Order as well as to supervise so that there shall=
=20
be no requisition of forced labour. A copy of the Order Supplementing Order=
=20
No. 1/99 issued by the Ministry of Home Affairs on 27 October 2000 is=20
enclosed herewith.

6. It is instructed to acknowledge receipt of this directive and to report=
=20
back actions taken on the matter.

26. With regard to point 4 of the latter instruction (dated 27 October=20
2000) the Committee hopes that prosecutions under section 374 of the Penal=
=20
Code will be brought by the law enforcement agencies on their own=20
initiative, without waiting for complaints by the victims, who may not=20
consider it expedient to denounce the "responsible persons" to the police.=
=20
The Committee hopes that in commenting on indications that the imposition=20
of forced labour has continued beyond October 2000, the Government will=20
also report on any concrete action taken under section 374 of the Penal=
 Code.

27. The Committee has noted the assurance, in the Government's letter dated=
=20
29 October 2000 to the Director-General of the ILO, of the "political will=
=20
to ensure that there is no forced labour in Myanmar, both in law and in=20
practice". It also has taken due note of the Order Supplementing Order No.=
=20
1/99 and the three instructions issued between 27 October and 1 November=20
2000, and of the view of the Employer members of the Governing Body at its=
=20
279th Session (November 2000) that this was "too little too late". At a=20
press conference held 18 November 2000 in Yangon on the decision of the=20
Governing Body of the ILO to activate measures on the subject of Myanmar,=20
the Government indicated that it would no longer cooperate with the ILO in=
=20
relation to the Forced Labour Convention, 1930 (No. 29), but that it would=
=20
continue to take steps to prevent forced labour, as this was its policy.=20
The Committee hopes that the Government will thus at last take the=20
necessary measures to ensure the observance in law as well as in practice=20
of the Convention, a basic human rights instrument freely ratified by=20
Myanmar. It also hopes that the Government, which had failed to take part=20
in the proceedings before the Commission of Inquiry, will avail itself of=20
the opportunity to present its views and progress in reporting on the=20
application of the Convention, in conformity with its obligations under=20
article 22 of the ILO Constitution.

[The Government is asked to report in detail in 2001.]

********************************
END OF PART 1 (OF 3)


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(Part 1 of 3) Appendices to the Report of the ILO High-level team.<br>
Divided into 3 parts for easier downloading. The version on the ILO site
is authoritative.<br><br>
Appendices to the Report of the ILO High-level team (PDF 1014K)<br>
<a=
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*******************************************************<br><br>
INTERNATIONAL LABOUR OFFICE <br><br>
GB. 282/4/Appendices <br><br>
282nd Session <br><br>
Governing Body Geneva, November 2001 <br><br>
FOURTH ITEM ON THE AGENDA <br><br>
Developments concerning the question of the observance by the Government
of Myanmar of the Forced Labour Convention, 1930 (No. 29) <br><br>
Report of the High-Level Team (HLT) <br><br>
Contents <br><br>
Appendices <br><br>
I. Understanding on an ILO objective assessment... 1 <br><br>
II. Biographical information of the members of the HLT... 2 <br><br>
III. Communication dated 31 August 2001 from the HLT to the Minister for
Foreign Affairs of Myanmar... 3 <br><br>
IV. Communication dated 7 September 2001 from the Permanent Mission of
Myanmar to Sir Ninian Stephen... 4 <br><br>
V. Individual observation of the Committee of Experts on the Application
of Conventions and Recommendations (2001 report)... 5 <br><br>
VI. Detailed itinerary of the HLT ... 11 <br><br>
VII. Map of Myanmar... 17 <br><br>
VIII. Myanmar terms, acronyms, and alternative spellings of places
visited.. 18 <br><br>
IX. Summary of the meeting between the HLT and Senior General Than
Shwe... 19 <br><br>
X. List of documents submitted to the HLT... 22 <br><br>
XI. <br><br>
(a) Communication dated 13 October 2001 from the HLT to Senior General
Than Shwe... 26 <br><br>
(b) Communication dated 26 October 2001 from Lieutenant-General Khin
Nyunt to the HLT... 27 <br><br>
XII. Structure of the Myanmar Court System... 29 <br><br>
XIII. Relevant legislation and orders. .... 30 <br><br>
<br>
Appendix I <br><br>
Understanding on an ILO objective assessment <br><br>
Recalling previous discussions which were reported to the Governing Body
at its March 2001 session relating to the possibility of an objective
assessment being carried out by the ILO with respect to the practical
implementation and actual impact of the framework of legislative,
executive and administrative measures reported by the Government, within
the overall objective of the complete elimination of forced labour in law
and in practice; <br><br>
Recognizing now the desirability of such an assessment being carried out
as soon as practicable; <br><br>
Noting the importance in this connection of the observation made by the
ILO Committee of Experts on the Application of Conventions and
Recommendations in its 2001 report; <br><br>
Aware of the need to respect the sovereign right of the country as well
as the independence of the Organization in the discharge of its
functions; <br><br>
The Government of Myanmar agrees to receive a high-level team (HLT) to
carry out an objective assessment under the following conditions designed
to ensure its credibility: <br><br>
1. The team will be composed of high-level persons appointed by the ILO
Director-General on the basis of their recognized qualifications,
impartiality and knowledge of the region. <br><br>
2. Taking into consideration seasonal weather conditions, the assessment
shall be carried out in September 2001. The time needed to carry out the
assessment in Myanmar could involve up to three weeks. <br><br>
3. The members of the HLT shall enjoy, for the purpose and duration of
the mission, the same protection and status accorded to officials of
comparable ranks in the United Nations. <br><br>
4. The HLT shall have complete discretion to establish and implement its
program of work, meetings and visits, taking into account the indications
provided, inter alia, in the aforementioned observation of the Committee
of Experts on the Application of Conventions and Recommendations, and
subject only to valid considerations of security. For this purpose, the
HLT shall be accorded full cooperation from the relevant Myanmar
authorities. During the establishment and implementation of the HLT's
programme, the HLT and the Government may call upon the assistance of a
facilitator recognized by all parties concerned as being a knowledgeable
and fair intermediary. <br><br>
5. Based on the results of the assessment, the HLT may provide such
advice and comments as it deems appropriate. <br><br>
6. The report of the HLT will promptly be made available to the
Director-General and the Government and transmitted to the Governing Body
for consideration at its November 2001 session. <br><br>
19 May 2001. <br>
(Initialed) U. Soe Nyunt, <br>
Chairman of the Myanmar Negotiating Team. <br><br>
<br>
Francis Maupain. <br><br>
******************************<br><br>
Appendix II <br><br>
Biographical information of the members of the HLT <br><br>
The Right Honourable Sir Ninian STEPHEN, KG, AK, GCMG, GCVO, KBE
(Australia), former Governor-General of Australia; former Justice of the
High Court of Australia; former Chairman, Strand Two of the Talks on
Northern Ireland; former Judge of the United Nations International
Criminal Tribunals for the former Yugoslavia and Rwanda; former
Commonwealth of Nations Special Envoy to Bangladesh; Former Chairman,
United Nations Expert Group on Cambodia; Former Australian Special
Ambassador for the Environment; former Chairman, Constitutional Centenary
Foundation, Antarctic Foundation, National Library of Australia,
Australian Banking Industry Ombudsman Council, Australian Citizenship
Council; Chair, Australian Blood and Blood Products Review; member of the
Ethics Commission of the International Olympic Committee. <br><br>
Ms. Nieves ROLDAN-CONFESOR (Philippines), former Philippines Secretary of
Labour and Employment; former Presidential Adviser on International
Labour Affairs; former Chair, ILO Governing Body; former director of the
Philippine National Bank, the Landbank of the Philippines; board member
of the Social Security System Commission; Chairperson, National Wages and
Productivity Commission, the Technical Education and Skills Development
Authority, the Philippine Agrarian Reform Council, and the National
Economic Development Authority; former head of the Panel of Experts to
the Congressional Commission to amend the Labour Code; former Chair,
ASEAN Labour Ministers' Meeting; Expert-adviser to the ILO Governing Body
on the follow up to the ILO Declaration on Fundamental Principles and
Rights at Work; member of the Operating Council of the Global Alliance
for Workers and Their Communities; consultant/ expert/ external
collaborator to the World Bank, the Asian Development Bank, the UNDP, the
ILO, the ASEAN Secretariat, and various national and regional institutes
and NGOs on social policy, social protection strategies, human resource
development, institutional reform and governance, conflict prevention,
and management; faculty, Asian Institute of Management (Philippines).
<br><br>
Mr. Kulatilaka Arthanayake Parinda RANASINGHE (Sri Lanka), retired Chief
Justice of Sri Lanka; former member of Judicial Tribunal to inquire into
allegations made against the then Head of the Judiciary of Malaysia;
former Visiting Expert, United Nations Asia and Far East Institute for
the Prevention of Crime and Treatment of Offenders, Tokyo; member of
several Arbitral Tribunals dealing with Commercial Arbitration;
President, Sri Lanka Chapter of the Asia Crime Prevention Foundation.
<br><br>
Mr. Jerzy MAKARCZYK, LL. D (Poland), Judge, European Court of Human
Rights; Professor of Public International Law, Institute of Legal
Sciences, Polish Academy of Sciences; former Deputy Minister of Foreign
Affairs; former Secretary of State, Ministry of Foreign Affairs; in
charge of negotiations with USSR and then Russia on withdrawal of troops
from Polish territory; in charge of negotiations for the admission of
Poland to the Council of Europe; former President, International Law
Association; member, Institute of International Law; has given lectures,
seminars and acted as a consultant at various universities in Japan,
South Korea, Sri Lanka, India, Thailand and the Philippines. <br><br>
*********************************<br><br>
Appendix III <br><br>
Communication dated 31 August 2001 from the HLT to the Minister for
Foreign Affairs of Myanmar <br><br>
Dear Minister, In my capacity as Chairperson of the ILO High-Level Team,
I am pleased to confirm, after consultations with the Permanent Mission
of Myanmar in Geneva, that the Team will arrive in Yangon in the morning
of 17 September and will spend the first week in the capital. We will
then be in a position to give you further details concerning our plans
for the following two weeks. <br><br>
I also wish to inform you that the Team discussed other arrangements, and
in particular the matter of precautionary measures as regards persons
whom the Team may wish to contact, which was raised in the letter dated
28 August 2001 from the ILO Director-General to Ambassador Mya Than. In
this connection, the Team asked me to seek confirmation of a solemn
commitment on the part of the authorities of Myanmar which would be made
through us to the international community that no action of any kind will
be taken against persons or their families, or organizations, who may
directly or indirectly contribute information to the Team or to the
discharge of its mandate, nor indeed seek to identify such persons. This
protection extends, but is of course not limited to, the fact that the
authorities should not seek to interfere with arrangements by the Team to
meet certain persons in private. <br><br>
The High-Level Team also came to the conclusion that the most efficient
way to carry out its mandate would be to have a chartered plane at its
disposal in Myanmar. Accordingly an aircraft will be chartered in the
region and the cooperation of the authorities will obviously be required
so that the plane and its crew can go about their duties in a safe and
efficient manner. We trust that, with your kind cooperation, the
High-Level Team will thus be able to travel at the time it wishes to the
places that it identifies. <br><br>
I am looking forward to the opportunity of meeting you in Yangon.
<br><br>
Yours sincerely, <br><br>
(Signed) Sir Ninian Stephen, <br><br>
Chairperson, ILO High-Level Team. <br><br>
**********************************<br><br>
Appendix IV <br><br>
Communication dated 7 September 2001 from the Permanent Mission of
Myanmar to Sir Ninian Stephen <br><br>
Your Excellency, <br><br>
I wish to refer to your letter Ref: BIT/ ILO of 31 August 2001, addressed
to the Minister for Foreign Affairs of the Union of Myanmar, in which you
have stated that the High-Level Team wishes to seek the confirmation of a
solemn commitment by the Myanmar authorities with regard to the
protection of the persons and their families who may contribute
information to the Team. <br><br>
In this connection, on behalf of the Honourable Minister for Foreign
Affairs, I wish to confirm that the Government will see to it that any
action of concern to the ILO High-Level Team, referred to in the letter
under reference, does not take place and that the bona fide
implementation of the mandate by the ILO High-Level Team will not be
affected in any manner whatsoever. <br><br>
May I take this opportunity to convey my warm regards to Your Excellency
and the members of the High-Level Team. <br><br>
Please accept, Your Excellency, the assurances of my highest
consideration. <br><br>
(Signed) Mya Than, <br><br>
Ambassador/Permanent Representative. <br><br>
*************************************<br><br>
Appendix V <br><br>
Individual observation of the Committee of Experts on the Application of
Conventions and Recommendations (2001 report) <br><br>
Convention No. 29 <br><br>
Myanmar (ratification: 1955) <br><br>
1. The Committee notes that the Government has not supplied a report on
the application of the Convention. Following the recommendations of the
Commission of Inquiry established to examine the observance by Myanmar of
the Forced Labour Convention, 1930 (No. 29), the Committee has, however,
taken note of the following information: <br><br>
=96 the information presented by the Government to the Director-General of
the ILO in communications dated 21 January, 20 March, 27 May, 29 October
(as supplemented subsequently), and 3, 15 and 17 November 2000;=20
<br><br>
=96 the information submitted to, and the discussions held in, the
Governing Body of the ILO at its 277th and 279th Sessions in March and
November 2000; <br><br>
=96 the information and discussion at the International Labour Conference
at its 88th Session (May-June 2000); <br><br>
=96 the resolution adopted by the International Labour Conference at its
88th Session concerning the measures recommended by the Governing Body
under article 33 of the ILO Constitution on the subject of Myanmar to
secure compliance with the recommendations of the Commission of Inquiry,
and the entry into effect of those measures on 30 November 2000,
following consideration of the matter by the Governing Body at its 279th
Session (November 2000); <br><br>
=96 the resolutions adopted by the General Assembly of the United Nations
at its 54th Session (17 December 1999) and by the United Nations
Commission on Human Rights at its 56th Session (March-April 2000) on the
situation of human rights in Myanmar (extracts in International Labour
Conference, 88th Session, Geneva, 2000, Provisional Record No. 4, Annex
III); <br><br>
=96 the second report of the Director-General of the ILO to the members of
the Governing Body on measures taken by the Government of Myanmar, dated
25 February 2000; <br><br>
=96 the interim report prepared by judge Rajsoomer Lallah, Special
Rapporteur of the Commission on Human Rights on the situation of human
rights in Myanmar, dated 22 August 2000 [UN document A/55/359]; and the
note by the Secretary-General of the United Nations on the same subject,
dated 20 October 2000 [UN document A/55/509]; <br><br>
=96 the reports of the ILO technical cooperation missions to Myanmar of May
2000 [ILC, 88th Session, Geneva, 2000, Provisional Record No. 8] and
October 2000 [GB.279/6/1 and Add.1]; <br><br>
=96 a communication dated 15 November 2000 in which the International
Confederation of Free Trade Unions submitted to the ILO voluminous
documentation referring to the imposition of forced labour in Myanmar
during the period June-November 2000, a copy of which was sent to the
Government for such comments as it may wish to present; <br><br>
=96 a press release issued on 17 November 2000 by the Ministry of Foreign
Affairs of the Union of Myanmar in Yangon, and an information sheet
issued by the Myanmar Information Committee in Yangon on a press
conference held on 18 November 2000 by the Government on the decision of
the ILO Governing Body to activate measures on the subject of Myanmar.
<br><br>
2. Information available on the observance of the Convention by the
Government of Myanmar will be discussed in three parts, dealing with: (i)
the amendment of legislation; (ii) any measures taken by the Government
to stop the exaction in practice of forced or compulsory labour and
information available on actual practice; (iii) the enforcement of
penalties which may be imposed under the Penal Code for the exaction of
forced or compulsory labour. <br><br>
<br>
I. Amendment of legislation <br><br>
3. In paragraph 470 of its report of 2 July 1998, the Commission of
Inquiry noted: <br><br>
=85 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 voluntary, 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 &quot;forced or compulsory
labour&quot; within the definition of Article 2(1) of the Convention.
<br><br>
The Commission of Inquiry 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. Recalling that the
amendment of these provisions had been promised by the Government for
over 30 years, 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 (paragraph 539(a) of the Commission's report). <br><br>
4. In its previous observation, the Committee noted that by the end of
November 1999, neither the Village Act nor the Towns Act had been
amended, nor had any draft law proposed or under consideration for that
purpose been brought to the knowledge of the Committee. However, an
&quot;Order Directing Not to Exercise Powers Under Certain Provisions of
the Town Act, 1907 and the Village Act, 1907&quot; (No. 1/99) was issued
by the Government on 14 May 1999, which in fact still reserved the
exercise of powers under the relevant provisions of the Village Act and
the Towns Act which remain incompatible with the requirements of the
Convention. <br><br>
5. The Committee notes from the report of the October 2000 ILO technical
cooperation mission to Myanmar (GB. 279/6/1, paragraphs 9 and 10, Annexes
13 and 19) that a draft text providing for the amendment of the Village
Act and the Towns Act through an amendment of Order No. 1/99 was not
retained by the Government. However, the same report (in Annex 19)
reproduces the English text of an &quot;Order Supplementary Order No.
1/99&quot; made by the Ministry of Home Affairs under the direction of
the State Peace and Development Council on 27 October 2000 which modifies
Order No. 1/99 so as to order &quot;responsible persons including members
of the local authorities, members of the armed forces&quot; etc.
&quot;not to requisition work or service notwithstanding anything
contained&quot; in the relevant sections of the Towns and Village Acts,
except in cases of emergency as defined in Article 2(2)(d) of the
Convention (GB. 279/6/1, Annex 19). The Burmese text of this Order of 27
October, which was to be published in the Myanmar Gazette, has not yet
been supplied to the ILO. <br><br>
6. The Committee observes that the amendment of the Village and Towns
Acts sought by the Commission of Inquiry as well as the present Committee
and promised by the Government for many years has not yet been made. It
again expresses the hope that the Village Act and the Towns Act will at
last be brought into conformity with the Convention. <br><br>
7. The Committee nevertheless notes that Order No. 1/99 as supplemented
by the Order of 27 October 2000 could provide a statutory basis for
ensuring compliance with the Convention in practice, if given effect bona
fide not only by the local authorities empowered to requisition labour
under the Village and Towns Acts, but also by civilian and military
officers entitled to call on the assistance of local authorities under
the Acts. This, in the view of the Committee, calls for further measures
to be undertaken, as indicated by the Commission of Inquiry in its
recommendations in paragraph 539(b) of its report. <br><br>
<br>
II. Measures to stop the exaction in practice of forced or compulsory
labour and information available on actual practice <br><br>
A. Measures to stop the exaction in practice of forced or Compulsory
labour <br><br>
8. In its recommendations in paragraph 539( b) of its report of July
1998, the Commission of Inquiry indicated that steps to ensure that in
actual practice no more forced or compulsory labour be imposed by the
authorities, in particular the military, were: <br><br>
=85 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 =85.=20
<br><br>
9. The Committee notes from the report of the October 2000 ILO technical
cooperation mission to Myanmar, the suggestion made by the mission of a
Supplementary Order or directive from the Office of the Chairman of the
State Peace and Development Council concerning requisition of labour or
services (GB.279/6/1, Annex 13). The suggested text was to order all
state authorities, including military, police and civilian authorities
and their officers, not to requisition persons to provide labour or
services for any purpose, nor to order others to requisition such labour
or services, regardless of whether or not payment is made for said labour
or services, except in cases of emergency as defined in Article 2(2)(d)
of the Convention. The suggested prohibition was to include but not be
limited to the requisition of labour or services for the following
purposes: <br><br>
(a) portering for the military (or other military/paramilitary groups,
for military campaigns or regular patrols); <br><br>
(b) construction or repair of military camps/ facilities; <br><br>
(c) other support for camps (such as guides, messengers, cooks, cleaners,
etc.); <br><br>
(d) income generation by individuals or groups (including work in
army-owned agricultural and industrial projects); <br><br>
(e) national or local infrastructure projects (including roads, railways,
dams, etc.); <br><br>
(f) cleaning/ beautification of rural or urban areas. <br><br>
Similar prohibitions were to apply to the requisition of materials or
provisions of any kind and to demands of money except where due to the
State or to a municipal or town committee under relevant legislation.
Furthermore, the suggested text was to provide that if any state
authority or its officers requires labour, services, materials or
provisions of any kind and for any purpose, they must make prior
budgetary arrangements to obtain these by a public tender process or by
providing market rates to persons wishing to supply these services,
materials or provisions voluntarily, or wishing to offer their labour.
<br><br>
10. The Committee notes that the text suggested by the mission was not
adopted, but that the English versions of several instructions dated 27
and 28 October 2000 and 1 November 2000 were forwarded to the ILO after
the departure of the mission and reproduced in addenda to the mission's
report (GB. 279/6/1( Add.1)<br>
(Rev.1) and (Add.2)). <br><br>
11. The instruction dated 27 October 2000 &quot;Prohibiting Requisition
of Forced Labour&quot; is signed for the Director-General of the Police
Force and addressed to all units of the police force. The instruction
dated 28 October 2000 on the same subject is addressed by the
Director-General of the General Administration Department of the Ministry
of Home Affairs to all State/Divisional Commissioners and General
Administration Departments and requires, inter alia, Order No. 1/99 and
the order supplementing it to be displayed separately on noticeboards of
all the levels of peace and development councils as well as the General
Administration Departments.<br><br>
12. The instruction dated 1 November 2000 &quot;Prohibiting Requisition
of Forced Labour&quot; is signed at the highest level, by Secretary-1 of
the State Peace and Development Council, and addressed to the Chairmen of
all State and Divisional Peace and Development Councils. The latter
instruction thus reaches beyond institutions that come under the
authority of the Ministry of Home Affairs. It is, however, primarily
directed to the enforcement of Order No. 1/99 and the Order of 27 October
2000 supplementing it, which are limited in scope to the requisition of
forced labour under the Village Act and the Towns Act, i.e. not by
civilian or military state officers but by local authorities, who may
requisition labour under the Acts when called upon to provide assistance
to civilian and military state officers. Nevertheless, the instruction
dated 1 November interprets the Supplementing Order of 27 October 2000 as
follows: <br><br>
2. =85 The Supplementing Order renders the requisition of forced labour
illegal and stipulates that it is an offence under the existing laws of
the Union of Myanmar. Responsible persons, including the local
authorities, members of the armed forces, members of the police force and
other public service personnel are also prohibited not to requisition
forced labour and are instructed to supervise so that there shall be no
forced labour. <br><br>
It would appear to the Committee that a bona fide application of this
prohibition should cover the typical case of members of the armed forces
who order local authorities to provide labourers, even if the manner of
complying with such order =96 through requisition or hiring of labourers or
otherwise =96 is left to the local authorities. <br><br>
13. The instruction dated 1 November 2000 continues as follows:=20
<br><br>
3. Therefore, it is hereby directed that the state and divisional peace
and development councils shall issue necessary instructions to the
relevant district and township peace and development councils to strictly
abide by the prohibitions contained in Order No. 1/99 and the
Supplementing Order of the Ministry of Home Affairs and also to
effectively supervise to ensure that there shall be no forced labour
within their respective jurisdictions. <br><br>
4. Responsible persons, including members of the local authorities,
members of the armed forces, members of the police force and other public
service personnel who fail to abide by the said Order No. 1/99 and the
Supplementing Order shall be prosecuted under section 374 of the Penal
Code or any other existing laws. <br><br>
It would appear to the Committee that again, as set out in paragraph 12
above, a bone fide application of the instruction would include, in the
scope of point 4 of the instruction, members of the armed forces who
order local authorities to supply labour. <br><br>
14. It remains to be seen whether the &quot;necessary instructions&quot;
yet to be issued by the state and divisional peace and development
councils under point 3 of the instruction of 1 November will contain the
kind of details necessary for a feasible implementation. Such details
were set out by the Commission of Inquiry in paragraph 539(b) of its
report and included by the October 2000 technical cooperation mission in
its suggestion mentioned in paragraph 9 above. <br><br>
15. The three instructions forwarded so far to the ILO do not yet contain
any positive indication on the manner in which authorities that have been
used to rely on forced and unpaid labour contributions of the population
are hereafter to make realistic provision for the labour and services
they may require. <br><br>
16. Furthermore, the three instructions do not spell out the various
forms of forced labour found by the Commission of Inquiry and this
Committee to be mainly imposed in practice, as listed in paragraph 9
above. In this regard, the Committee recalls that most of the forms of
forced labour or services requisitioned concerned the military. The
Committee notes that &quot;members of the armed forces&quot; are
specifically included among the responsible persons listed in point 4 of
the instruction dated 1 November 2000 (quoted in paragraph 13 above).
However, in point 3 of the same instruction, the order to issue the
necessary further =96 and, hopefully, more detailed =96 instructions is
addressed to the state and divisional peace and development councils
(which in fact include officers of the armed forces), but not to the
regional commanders of the armed forces in their military capacity.
<br><br>
17. In the absence of specific and concrete instructions to the civilian
and military authorities containing a description of the various forms
and manners of exaction of forced labour, the application of the
provisions adopted so far turns upon the interpretation in practice of
the notion of &quot;forced labour&quot;. This cannot be taken for
granted, as shown by the various Burmese terms used sometimes when labour
was exacted from the population =96 including &quot;loh ah pay&quot;,
&quot;voluntary&quot; or &quot;donated&quot; labour. <br><br>
The need for clarity on the point is underscored by the Government's
recurrent attempts to link the pervasive exaction of labour and services
by mainly military authorities to merit which may be gained in the
Buddhist religion from spontaneously offered help. The Commission of
Inquiry recalled in paragraph 539( c) of its report that &quot;the
blurring of the borderline between compulsory and voluntary labour,
recurrent throughout the Government's statements&quot; was &quot;all the
more likely to occur in actual recruitment by local or military
officials&quot;. <br><br>
18. Thus, clear instructions are still required to indicate to all
officials concerned, including officers at all levels of the armed
forces, both the kinds of tasks for which the requisition of labour is
prohibited, and the manner in which the same tasks are henceforth to be
performed. The Committee hopes that the necessary detailed instructions
will soon be issued, and that, in the words of paragraph 539(b) of the
Commission of Inquiry's report, provision will also be made for &quot;the
budgeting of adequate means to hire free wage labour for the public
activities which are today based on forced and unpaid labour&quot;.
<br><br>
<br>
B. Information available on actual practice <br><br>
(a) The practice August 1998 to December 1999 <br><br>
19. In his reports dated 21 May 1999 and 25 February 2000 to the members
of the Governing Body, the Director-General indicated that all
information on actual practice that was received (from workers' and
employers' organizations, intergovernmental organizations and governments
of member States of the ILO) in reply to his requests, referred to
continued widespread use of forced labour by the authorities, in
particular by the military. <br><br>
<br>
(b) Information on the practice up to November 2000 <br><br>
20. In its communication dated 15 November 2000, the ICFTU refers to the
persistence of severe breaches of the Convention by the military
authorities. Documentary appendices enclosed by the ICFTU represent over
1,000 pages drawn from over 20 different sources and include reports,
interviews of victims; over 300 forced labour orders, photographs, video
recordings and other material. A few events described therein took place
in the first half of the year 2000; an overwhelmingly large proportion of
the documents concerns the period June to November 2000. <br><br>
21. An essential part of the ICFTU submission consists of hundreds of
&quot;forced labour orders&quot;, issued mainly by the army but also by
armed groups under its control and elements of the local administration.
As stated by the ICFTU, these are similar in kind, shape and contents to
the orders already examined by the Commission of Inquiry and the regular
ILO supervisory mechanisms and found by same to be authentic. Documentary
materials submitted refer to the persistence on a large scale of forced
portering, including by women, and the murder of forced porters no longer
able to carry their burden. In addition to forced portering, all other
forced labour practices identified previously by the Commission of
Inquiry are referred to for the period June to November 2000. A great
number of specific reported instances include forced labour for the
building and maintenance of roads, bridges, railroads, water canals,
dikes, dams and reservoirs, as well as for the building, repair,
maintenance and servicing of army camps; and the requisition of labour as
well as seeds, fertilizer, materials and equipment for army-held
agricultural land, forests and installations. <br><br>
22. As indicated above, copies of the ICFTU communication of 15 November
2000, including the voluminous documentation submitted, were sent to the
Government for such comments as it may wish to present. <br><br>
<br>
III. Enforcement <br><br>
23. In paragraph 539(c) of its recommendations the Commission of Inquiry
urged the Government to take the necessary steps to ensure: <br><br>
=85 that the penalties which may be imposed under section 374 of the Penal
Code for the exaction of forced labour 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. <br><br>
24. In practice, no action whatsoever under section 374 of the Penal Code
has so far been brought to the knowledge of the Committee. <br><br>
25. The Committee notes that point 4 of the instruction dated 1 November
2000 from the State Peace and Development Council to All State and
Divisional Peace and Development Councils, reproduced in paragraph 13,
provides for the prosecution of &quot;responsible persons&quot; under
section 374 of the Penal Code. Similar clauses are included in point 3 of
the instruction dated 27 October, and point 6 of the instruction dated 28
October, referred to in paragraph 11 above. Moreover, under points 4 to 6
of the instruction dated 27 October 2000, addressed by the
Director-General of the Police Force to all units of the police force:
<br><br>
4. If any affected person files a verbal or written complaint to the
police station of having been forced to contribute labour, the latter
shall record the complaint in Forms A and B of the police station and
send the accused for prosecution under section 374 of the Penal Code.
<br><br>
5. It is hereby directed that the police stations and units concerned at
various levels shall be further instructed to make sure their strict
compliance with the said Order as well as to supervise so that there
shall be no requisition of forced labour. A copy of the Order
Supplementing Order No. 1/99 issued by the Ministry of Home Affairs on 27
October 2000 is enclosed herewith. <br><br>
6. It is instructed to acknowledge receipt of this directive and to
report back actions taken on the matter. <br><br>
26. With regard to point 4 of the latter instruction (dated 27 October
2000) the Committee hopes that prosecutions under section 374 of the
Penal Code will be brought by the law enforcement agencies on their own
initiative, without waiting for complaints by the victims, who may not
consider it expedient to denounce the &quot;responsible persons&quot; to
the police. The Committee hopes that in commenting on indications that
the imposition of forced labour has continued beyond October 2000, the
Government will also report on any concrete action taken under section
374 of the Penal Code. <br><br>
27. The Committee has noted the assurance, in the Government's letter
dated 29 October 2000 to the Director-General of the ILO, of the
&quot;political will to ensure that there is no forced labour in Myanmar,
both in law and in practice&quot;. It also has taken due note of the
Order Supplementing Order No. 1/99 and the three instructions issued
between 27 October and 1 November 2000, and of the view of the Employer
members of the Governing Body at its 279th Session (November 2000) that
this was &quot;too little too late&quot;. At a press conference held 18
November 2000 in Yangon on the decision of the Governing Body of the ILO
to activate measures on the subject of Myanmar, the Government indicated
that it would no longer cooperate with the ILO in relation to the Forced
Labour Convention, 1930 (No. 29), but that it would continue to take
steps to prevent forced labour, as this was its policy. The Committee
hopes that the Government will thus at last take the necessary measures
to ensure the observance in law as well as in practice of the Convention,
a basic human rights instrument freely ratified by Myanmar. It also hopes
that the Government, which had failed to take part in the proceedings
before the Commission of Inquiry, will avail itself of the opportunity to
present its views and progress in reporting on the application of the
Convention, in conformity with its obligations under article 22 of the
ILO Constitution. <br><br>
[The Government is asked to report in detail in 2001.]<br><br>
********************************<br>
END OF PART 1 (OF 3)<br><br>
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