Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Myanmar (Ratification: 1955)

The Committee notes the Government’s report. The Committee observes that it does not contain any specific information concerning the questions raised in its previous comments, but rather refers once again to the constitutional process following which labour laws will be elaborated.

The Committee notes the conclusions and recommendations reached by the Committee on Freedom of Association in its interim report concerning Case No. 2268 (340th Report, paragraphs 1064-1112) and in particular observes that it requested the Government to institute an independent inquiry into the alleged murder of a trade unionist, Saw Mya Than, and to release Myo Aung Thant from prison.

The Committee also notes the comments of the International Confederation of Free Trade Unions (ICFTU), dated 12 July 2006, concerning numerous and grave matters that have been raised by the Committee over the years, including the current situation of an obscure legislative framework; a single trade union system; military orders and decrees further limiting freedom of association; the prohibition of trade unions; “workers’ committees” organized by the authorities; the Federation of Trade Unions of Burma (FTUB) forced to work underground and accused of terrorism; and the repression of seafarers even overseas and the denial of their right to be represented by the Seafarers’ Union of Burma (SUB). The Committee notes that the Government’s observations concerning matters raised by the ICFTU mainly refer to its previous communications. In addition, the ICFTU has referred to the following allegations:

(1)   The police arrest on 17 April 2005 of four workers (Hlae Hlae Khaing, Zin Min Khing, Moe Thi and Mar Mar) following a strike at a garment factory in Hlaingthayar industrial zone, and their imprisonment in Rangoon for allegedly having broken the law through their actions connected with the factory. Workers of the factory went on strike on 18 April demanding their immediate release. On 19 April, police and military, led by Major Tin San, converged on the factory, which they unilaterally declared closed until further notice. Threats of arrests were made against the workers if they didn’t cease their strike. Finally, Major General Myint Swe, the Rangoon Army Commander, arrived on the scene with nine prison transport trucks and delivered an ultimatum – either to vacate the compound immediately or the Army would arrest them all. The workers immediately ceased their strike, and left the factory. On 2 May the four arrested workers were released from prison.

(2)   Saw Thoo Di, a.k.a. Saw Ther Paw, a Karen Agricultural Workers’ Union (KAWU) committee member from Kya-Inn township, Karen State, was arrested by an armed column of Infantry Battalion 83 outside his village on 28 April, tortured and shot dead.

(3)   The State Peace and Development Council (SPDC) military learnt that on 30 April, the FTUB and Federation of Trade Unions – Kawthoolei (FTUK) were preparing a May Day workers’ rights commemoration in Pha village and sent in Light Infantry Battalion 308, which shelled the village with mortars and rocket propelled grenades, seeking to kill the organizers and disrupt the preparations.

(4)   In early June 2005, the SPDC uncovered an underground network of ten FTUB organizers in the Pegu area who were providing support and education to workers and serving as a networking and information link to FTUB structures abroad. Seven men and three women were arrested. In a press conference held on 28 August, the SPDC leaders accused the organizers of having used satellite phones to convey information from inside Burma to the FTUB, which then provided information to the ILO and the international trade union movement. The arrested FTUB members were taken to the infamous Aug Tha Pay interrogation centre in Mayangone district of Rangoon where they were investigated and tortured by special branch police and Bureau of Special Operations (military intelligence) personnel during the months of June and July. On 29 July, they were transferred to Insein prison, and their case sent to a special court that conducts its hearings inside the prison. During the secret trial, they were denied access to outside council or witnesses, and the proceedings clearly did not meet international judicial standards. They were all found guilty and were sentenced on 10 October. Wai Lin and Win Myint, as key leaders of the network, respectively received sentences of 25 years and 18 years, the other five men and two of the women (Hla Myint Than, Major Win Myint, Ye Myint, Thein Lwin Oo, Aung Myint Thein, Aye Chan, Kin Kyi), each received seven-year jail terms, and bank clerk Ma Aye Thin Khine was sentenced to three years of imprisonment.

(5)   On 3 November 2005, FTUB organizer Aung Myint (see above) died under mysterious circumstances in his cell at Insein prison. When arrested on 2 July, along with other members of the FTUB Pegu network, he was physically fit and in good health. The authorities told the family that he died of dysentery, but refused to turn over the body to his relatives for a funeral, making it impossible to ascertain whether he died from abusive treatment, disease, or other cause. Police officials cremated the body themselves.

(6)   Myo Aung Thant, a member of the All Burma Petro-Chemical Corporation Union, was arrested in 1997 and charged at the time with high treason for maintaining contacts with the FTUB. Now the SPDC has explained that he was jailed for ten years for high treason under section 122(1) of the Penal Code, plus seven years for violations of the Emergency Provisions Act, plus three years for violating the Unlawful Associations Act. Myo Aung Thant is detained in a remote part of the country at Myitkyina prison in Kachin State, and was, according to his family, in the course of 2005 held in solitary confinement in a small, windowless cell.

(7)   Thet Naing, another underground FTUB leader, was released from Myitkyina prison in November 2004 after serving a seven-year sentence following his rearrest for his role in leading a workers’ protest in the Yam Ze Kyang garment factory. He continues to be affected by nerve damage suffered from the torture he was subjected to during his interrogation and the mistreatment he received while in jail. He has now left the country and joined the FTUB abroad.

The Committee regrets that the Government did not provide detailed observations on these serious allegations made by the ICFTU in 2005 and 2006 and urges the Government to include a detailed reply in its next report.

The Committee most strongly deplores these most recent and serious allegations which detail a long list of trade unionists who have been arrested, detained, tortured and sentenced to many years of imprisonment for the exercise of their trade union activities, including the mere sending of information to the FTUB. The Committee recalls once again that respect for civil liberties is essential for the exercise of freedom of association and that workers and employers should be able to exercise their freedom of association rights in a climate of complete freedom and security, free from violence and threats and that a climate of violence, in which murders and disappearances of trade union leaders go unpunished, constitutes an extremely serious obstacle to the exercise of trade union rights and that such acts require severe measures to be taken by the authorities. The authorities should not seize on legitimate trade union activities as a pretext for arbitrary arrest or detention. Furthermore, as regards, more specifically, torture, cruelty and ill-treatment, the Committee points out that trade unionists, like all other individuals, should enjoy the safeguards provided by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and governments should give the necessary instructions to ensure that no detainee suffers such treatment (see 1994 General Survey on freedom of association and collective bargaining, paragraphs 29 and 30). The Committee therefore urges, once again, the Government to provide information on measures adopted and instructions issued without delay so as to ensure respect for the fundamental civil liberties of trade union members and officers and to take all necessary measures to release all those who have been imprisoned for the exercise of trade union activities immediately and to ensure that no worker is sanctioned for the exercise of such activities, in particular for having contacts with workers’ organizations of their own choosing. The Committee firmly hopes that the Government will soon be in a position to indicate progress in this respect.

Concerning the legislative framework (Articles 2, 3, 5 and 6 of the Convention), the Committee recalls that it had noted in its previous observation a total lack of progress towards establishing a legislative framework under which free and independent workers’ organizations could be established. Furthermore, it recalls that, for several years, it has indicated that there exist some pieces of legislation containing important restrictions to freedom of association or provisions which, although not directly aimed at freedom of association, can be applied in a manner that seriously impairs the exercise of the right to organize. More specifically: (1) Order No. 6/88 of 30 September 1988 provides that the “organizations shall apply for permission to form to the Ministry of Home and Religious Affairs” (section 3(a)), and states that any person found guilty of being a member of, or aiding and abetting or using the paraphernalia of, organizations that are not permitted shall be punished with imprisonment for a term which may extend to three years (section 7); (2) Order No. 2/88 prohibits the gathering, walking or marching in procession by a group of five or more people regardless of whether the act is with the intention of creating a disturbance or of committing a crime; and (3) the Unlawful Association Act of 1908 provides that whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association, or in any way assists the operations of any such association, shall be punished with imprisonment for a term which shall not be less than two years and more than three years and shall also be liable to a fine (section 17.1).

Noting the Government’s statement that it will send the draft labour laws concerning the protective measures of the workers as soon as the new State Constitution is finalized, the Committee cannot but regret once again the long delay in the adoption of the Constitution and the fact that, in the meantime, no progress has been made on the particularly serious and urgent issues it has been raising for nearly 20 years now. The Committee once again urges the Government to furnish a detailed report on the concrete measures taken to enact legislation guaranteeing to all workers and employers the right to establish and join organizations of their own choosing, as well as the rights of these organizations to exercise their activities and formulate their programmes and to affiliate with federations, confederations and international organizations of their own choosing without interference from the public authorities. It further urges the Government in the strongest terms to repeal Orders Nos. 2/88 and 6/88 as well as the Unlawful Association Act, so that they cannot be applied in a manner that would infringe upon the rights of workers’ and employers’ organizations. It requests the Government to communicate any relevant draft laws, orders or instructions made in this regard so that it may examine their conformity with the provisions of the Convention.

[The Government is asked to report in detail in 2007.]