Observation (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Convention (n° 29) sur le travail forcé, 1930 - Myanmar (Ratification: 1955)

Follow-up to the recommendations made by the Commission of Inquiry (complaint made under article 26 of the Constitution of the ILO)

For a number of years, the Committee has been examining this case and it is pleased to note the various positive developments that have occurred in Myanmar since its previous examination of the case in December 2012, including with regard to the application of this Convention.

Historical background

The Committee has, over a number of years, been following up the effect given to the recommendations of the Commission of Inquiry, appointed by the Governing Body in March 1997 under article 26 of the Constitution. In its recommendations, the Commission of Inquiry urged the Government to take the necessary steps to ensure that:

• -the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Convention;
• -in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military; and
• -the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced or compulsory labour be strictly enforced, which required thorough investigation, prosecution and adequate punishment of those found guilty.

Appointment of an ILO Liaison Officer

In 2002, an Understanding was agreed between the Government of Myanmar and the ILO that permitted the appointment of an ILO Liaison Officer in Myanmar who was tasked with supporting the Government in the elimination of forced labour, and monitoring forced labour policy and practice within Myanmar.

The Supplementary Understanding of 26 February 2007 – Extension of the complaints mechanism

In its earlier comments, the Committee referred to the Supplementary Understanding (SU) of 26 February 2007 between the Government and the ILO, which supplemented the earlier Understanding of 19 March 2002 concerning the appointment of an ILO Liaison Officer in Myanmar. The Committee noted, in particular, that the SU set out a complaints mechanism with the object “to formally offer the possibility to victims of forced labour to channel their complaints through the services of the Liaison Officer to the competent authorities with a view to seeking remedies available under the relevant legislation and in accordance with the Convention”. The Committee noted previously that the SU was extended for the fifth time on 23 January 2012 for a further 12-month period from 26 February 2012 until 25 February 2013. Since then, and in order to ensure the legal framework for the ILO’s renewed cooperation in Myanmar, the Committee notes that the SU has been extended on an annual basis and that at its 325th Session in October–November 2015, the Governing Body decided to extend the SU for a further 12 months from January 2016 (GB.325/INS/7).

2012 Memorandum of Understanding between the Government of Myanmar and the ILO

The Committee notes that in March 2012 a Memorandum of Understanding (MoU) was reached between the Government of Myanmar and the ILO, agreeing to a structured plan of action to implement a comprehensive joint strategy with the objective of achieving the elimination of all forms of forced labour by 2015.

2013 resolution concerning the measures on the subject of Myanmar adopted by the Conference

The Committee notes a resolution on ILO action regarding Myanmar adopted by the International Labour Conference (ILC) at its 102nd Session in June 2013. This resolution followed up the conclusions of the 317th Session of the Governing Body in March 2013. The Committee notes that the 2013 resolution, while noting that more remained to be done, was encouraged with the progress made by Myanmar in compliance with Convention No. 29. Considering that maintaining the remaining measures would no longer be necessary for the implementation of the recommendations of the Commission of Inquiry, the resolution discontinued the recommendation contained in paragraph 1(a) of the resolution adopted by the Conference under article 33 of the Constitution in June 2000, which had decided that the application of Convention No. 29 by Myanmar should be discussed at a special sitting of the Committee on the Application of Standards at future sessions of the ILC. The 2013 Conference resolution also discontinued the recommendation contained in paragraph 1(b) of the June 2000 Conference resolution, which called on the Organization’s constituents to review their relations with Myanmar and take appropriate measures to ensure that these relations could not be taken advantage of to perpetuate or extend the system of forced labour referred to by the Commission of Inquiry. Under the terms of the 2013 Conference resolution, the Office and the Government were requested to continue their commitment to the application of the 2007 SU, the March 2012 MoU and associated action plans for the elimination of all forms of forced labour by 2015, in coordination with the social partners in Myanmar. The resolution also invited the Governing Body to review the situation in Myanmar on issues relating to ILO activities, including freedom of association, and the impact of foreign investment on decent working conditions in the country and, in this regard, requested the Director-General to submit a report at the March Governing Body sessions until the elimination of forced labour. The resolution further called on member States, as well as employers’ and workers’ organizations, and international organizations to support the efforts of the Government, with the assistance of the ILO, to eliminate forced labour in Myanmar and to further social justice in the country, including by making available necessary financial resources.

Ratification of the Worst Forms of Child Labour Convention, 1999 (No. 182)

The Committee welcomes the ratification by the Government of Myanmar of Convention No. 182 on 18 December 2013. The Committee notes that the Government, in collaboration with the ILO, adopted the Myanmar Programme on the Elimination of Child Labour 2014–17 (My-PEC) with the aim of developing a comprehensive, inclusive and efficient multi-stakeholder response to reduce child labour and its worst forms in Myanmar.

Discussions in the Governing Body

The Governing Body continued its discussions on this case during its 317th Session in March 2013 (GB.317/INS/4/2), during its 320th, 321st and 322nd Sessions in March, June and November 2014 (GB.320/INS/6(Rev.), GB.321/INS/INF/1, GB.322/INS/INF/2), and during its 323rd and 325th Sessions in March and November 2015 (GB.323/INS/4, GB.325/INS/7). The Committee notes that, in the course of the discussion in October–November 2015, the Governing Body noted, in respect of progress made in the implementation of the Action Plan on the Elimination of All Forms of Forced Labour by 2015, that: (i) the number of complaints received under the complaints mechanism continues to be significant. In 2015, up to the end of August, a monthly average of 24.5 complaints, assessed as being within the mandate, were received which compares to a monthly average of 33 received during 2014; (ii) the actual use of forced labour is decreasing overall, which suggests that the continued receipt of a relatively high number of complaints still reflects a continued growth in both awareness of the right to complain and confidence to lodge a complaint; (iii) with the signing of ceasefire agreements between the Government and some 13 non-state armed groups, and with the successful negotiation towards a nationwide ceasefire agreement, a significant reduction in the use of forced labour in conflict-affected areas has been seen. However, reports continue to be received of the use of forced labour in areas not as yet subject to an agreed ceasefire (predominantly in Katchin and Northern Shan States) and in areas where there is ongoing civil unrest (in particular Rakhine State); (iv) a significant number of complaints continue to be received concerning the loss of land. While some of these fall outside the mandate of the forced labour complaints mechanism, a number that are accepted as being within the mandate concern the loss of land owing to failure of the landholder to undertake forced labour; (v) an increasing number of complaints are being received alleging forced labour in the private sector. These fall into three main categories: bonded labour (both adult and child); requirement to work excessive overtime (with or without compensation) at risk of losing the job; and trafficking for forced labour (including in domestic work). There continues to be a low level of awareness regarding the concept of forced labour in the private sector, with many people understanding it as a concept applicable only in the public sector; (vi) awareness raising with all sectors of society remains a critical requirement. Although considerable work has been undertaken in cooperation with the Government, social partners and civil society, levels of awareness of rights and responsibilities in respect of the use of forced labour and knowledge of the existence of the ILO and Government complaint mechanisms remain relatively low. To rectify this, the Government has committed to the continued broadcast of radio and television awareness-raising clips, and discussions are under way, but not yet finalized, on the placement of billboards in strategic locations identified as forced labour hotspots. Three DVDs have been developed on different aspects of forced labour, which are shortly to be distributed through the ILO voluntary facilitators’ network for use in local awareness-raising/training activities. Negotiations with the Government continue on the adaptation of at least one of these DVDs into documentary format for potential television broadcast; and (vii) in respect of accountability, the report to the 323rd Session (March 2015) of the Governing Body indicated that some 274 prosecutions, resulting in punishments ranging from the issuance of formal reprimands, monetary fines, demotion, loss of service time against promotion and pension rights, dishonourable discharge or imprisonment, have been made against military personnel in response to complaints under the SU. Since then, notice has been received of the prosecution and conviction under summary trial of a further two commissioned officers and three other ranked personnel. The commissioned officers received reprimands, two of the other ranked personnel had a service reduction imposed and the third received a monetary fine. However, the ILO has still received no information concerning the criminal prosecution of any person under the forced labour provisions of the Ward or Village Tract Amendment Act 2012.

The Governing Body observed that considerable progress has been made, with recorded reductions in the actual use of forced labour since the Government took office in 2011, and particularly following the commencement of peace negotiations. Moreover, in response to the recommendations of the Commission of Inquiry, national legislation has been brought into compliance with the provisions of Convention No. 29, a public statement has been made at the highest level confirming the Government’s political commitment to achieve the elimination of all forms of forced labour, an extensive Government–ILO awareness-raising activity has been undertaken and continues, assurances have been received as to the policy of full budget provision for the undertaking of public works, and a substantial number of military personnel have been held to account for their continued use of forced labour. However, complaints continue to be received under the Government–ILO complaints mechanism, including in respect of village- and township-level public works; awareness levels and understanding of concepts remain relatively low; and there is no evidence of commitment to accountability for breach of the law, other than in the case of the military.

The Government’s report

The Committee notes the information in the Government’s report concerning the implementation of the SU complaints mechanism pursuant to which forced labour complaints are being resolved. The Government indicates that from March 2007 to 22 June 2015, 697 cases have been brought against military personnel in response to complaints under the SU. Of these cases, 628 concerned underage recruitment, 13 concerned forced labour, and two concerned other issues. The Government points out that 48 army officers and 271 other ranked officials were punished pursuant to the military rules in relation to underage recruitment and forced labour cases. Punishments ranged from the issuance of formal reprimands, monetary fines, demotion, loss of service time against promotion and pension rights, dishonourable discharge or imprisonment. The Committee further notes the information in the Government’s report concerning the implementation in practice of the Action Plan for the Elimination of All Forms of Forced Labour in Myanmar by 2015, elaborated by the Government in cooperation with the ILO. The Government states that awareness-raising activities have been intensified in conformity with the Action Plan. In this connection, a total of 13 awareness-raising workshops on the elimination of forced labour have been conducted. Moreover, a total of 40 joint Ministry of Labour–ILO awareness raising workshops were conducted across the country from July 2012 to August 2015. In addition, the General Administration Department under the Ministry of Home Affairs has issued instructions to the administrators of the regions and states to abide by the provisions of the Ward or Village Tract Administration Act, which prohibits the exaction of forced labour and makes it a criminal offence. Finally, the Government states that the Ministry of Defence and the United Nations Country Task Force on Monitoring and Reporting (CTFMR) signed, on 27 June 2012, an action plan to prevent and end the recruitment and use of children under 18 years of age in the armed forces (Tatmadaw). In this regard, the Committee notes the Government’s indication that a total of 645 minors, who were recruited by Tatmadaw, were handed over to their parents between 2012 and 2015.

The Committee’s concluding remarks

Regarding legislative developments, the Committee previously noted with satisfaction the adoption by Parliament of the Ward or Village Tract Administration Act of 24 February 2012 (as amended on 28 March 2012), which repealed the Village Act and the Towns Act of 1907 (section 37) and which makes the use of forced labour by any person a criminal offence punishable with imprisonment and fines (section 27A). However, the Committee notes that no action has been taken to amend article 359 of the Constitution (Chapter VIII – Citizenship, fundamental rights and duties of citizens), which exempts from a prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public”. In its earlier comments, the Committee observed that this exception permits forms of forced labour that exceed the scope of the specifically defined exceptions in Article 2(2) of the Convention and could be interpreted in such a way as to allow a generalized exaction of forced labour from the population. The Committee notes the Government’s statement in its report that the 2008 Constitution, which has been ratified and promulgated through a national referendum with the approval of the people of Myanmar, will be amended as required. The Committee once again expresses the firm hope that the necessary measures will at last be taken with a view to amending article 359 of Chapter VIII of the Constitution in order to bring it into conformity with the Convention.

Regarding the practical application of the Convention, the Committee welcomes the various measures undertaken by the Government, in collaboration with the ILO, aimed at the eradication of forced labour for men, women and children in practice. These measures include the undertaking of an extensive range of awareness-raising activities across the country, support for the continued use of the SU complaints mechanism to enable victims of forced labour to seek redress, as well as holding to account a substantial number of military personnel for their continued use of forced labour. While taking due note of the progress made towards the elimination of all forms of forced labour, the Committee observes that the use of forced labour continues in Myanmar. The Committee therefore fully endorses the conclusions concerning Myanmar made by the Governing Body and encourages the Government to pursue with vigour its ongoing efforts towards the elimination of forced labour in all its forms, in both law and practice, by fully implementing the recommendations of the Commission of Inquiry. It requests the Government to provide, in its next report, detailed information on the measures taken to that end and, in particular, on the measures taken to ensure that, in practice, forced labour is no longer imposed by the military or civil authorities, as well as the private sector. It also requests the Government to provide information on the measures taken to ensure the strict application of the national legislation, particularly the provisions of the Ward or Village Tract Amendment Act 2012, so that penalties for the exaction of forced labour under this law and the Penal Code are strictly enforced against perpetrators. The Committee also asks the Government to continue to provide information on: various practical measures aimed at the eradication of all forms of forced labour, such as the continuation and strengthening of awareness-raising activities; improvements in dealing with under-age recruitment by the military, including the release and reintegration of children, and the imposition of disciplinary and penal sanctions on military personnel; cooperation in the continued functioning of the SU complaints mechanism; and measures to budget adequate means for the replacement of forced or unpaid labour. The Committee reiterates the firm hope that all the necessary measures will be taken without delay to achieve full compliance with the Convention so as to ensure that all use of forced or compulsory labour in Myanmar is completely eliminated.

The Committee is raising other matters in a request addressed directly to the Government.