Governing Body

---

	Geneva, 21 May 1999

Report of the Director-General to the
members of the Governing Body

on

Measures taken by the Government of Myanmar
following the recommendations of the Commission
of Inquiry established to examine its observance
of the Forced Labour Convention, 1930 (No. 29)

Introduction

1. At its 274th Session (March 1999), the Governing Body decided:

(a) to request the Director-General to inform the members of the Governing Body, by means of a written report, on or before 21 May 1999, regarding measures which the Government of Myanmar has taken to comply with the recommendations of the Commission of Inquiry, together with details of any technical assistance requested or provided;

(b) to request the Director-General, in preparing the abovementioned report, to take into account any comments by the Government of Myanmar, as well as information from workers' and employers' organizations and from other reliable sources:

(c) and immediately thereafter:

(i) to request the Director-General to disseminate the findings and conclusions of the Commission of Inquiry throughout the UN system and include in the abovementioned report any responses received; and

(ii) to place on the agenda of the 276th Session of the Governing Body an item entitled: "Measures including recommendations under article 33 of the ILO Constitution, to secure compliance by the Government of Myanmar with the recommendations of the Commission of Inquiry."⁽¹⁾ 

2. By letter of 1 April 1999, referring to the decision made by the Governing Body at its 274th Session (March 1999), the Director-General of the ILO asked the Government of Myanmar to inform him in detail, by 3 May 1999 at the latest, of any measures taken by the Government on each of the recommendations set out in paragraphs 539 and 540 of the Commission of Inquiry's report. In reply, the Government sent two letters, dated 12 and 18 May 1999, which are reproduced as Appendices I and II.

3. Requests for any available information on the effect given by the Government of Myanmar to the recommendations of the Commission of Inquiry were also sent to international employers' and workers' organizations having consultative status with the ILO, to a number of intergovernmental organizations and to governments of member States of the ILO. By 20 May 1999, replies had been received from the International Confederation of Free Trade Unions, the World Confederation of Labour, the Confederation of Finnish Industry and Employers, the Food and Agriculture Organization of the United Nations, the International Maritime Organization, the International Monetary Fund, the United Nations High Commissioner for Refugees, the United Nations Industrial Development Organization, the Universal Postal Union, the World Bank, the Governments of Bulgaria, Colombia, Costa Rica, Croatia, El Salvador, India, Indonesia, Italy, Kenya, Morocco, Peru, Sweden, the United Kingdom and the United States.

4. In its report,⁽²⁾  communicated to the Government of Myanmar on 27 July 1998, the Commission of Inquiry established to examine the observance of the Forced Labour Convention, 1930 (No. 29), concluded that:

... the obligation under Article 1, paragraph 1, of the Convention to suppress the use of forced or compulsory labour is violated in Myanmar in national law, in particular by the Village Act and the Towns Act, as well as in actual practice in a widespread and systematic manner, with total disregard for the human dignity, safety and health and basic needs of the people of Myanmar.

Concurrently, the Government violates its obligation under Article 25 of the Convention to ensure that the penalties imposed by law for the illegal exaction of forced or compulsory labour are both really adequate and strictly enforced.⁽³⁾ 

5. "In view of the Government's flagrant and persistent failure to comply with the Convention", the Commission in its recommendations urged the Government to take the necessary steps to ensure:

(a) that the relevant legislative texts, in particular the Village Act and the Towns Act, be brought into line with the Forced Labour Convention, 1930 (No. 29), as already requested by the Committee of Experts on the Application of Conventions and Recommendations and promised by the Government for over 30 years, and again announced in the Government's observations on the complaint. This should be done without further delay and completed at the very latest by 1 May 1999;

(b) that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military. This is 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;

(c) that the penalties which may be imposed under section 374 of the Penal Code for the exaction of forced 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. As pointed out in 1994 by the Governing Body committee set up to consider the representation made by the ICFTU under article 24 of the ILO Constitution, alleging non-observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), the penal prosecution of those resorting to coercion appeared all the more important since the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government's statements to the committee, was all the more likely to occur in actual recruitment by local or military officials. The power to impose compulsory labour will not cease to be taken for granted unless those used to exercising it are actually brought to face criminal responsibility.⁽⁴⁾ 

6. The Commission of Inquiry pointed out that its recommendations "require action to be taken by the Government of Myanmar without delay".⁽⁵⁾ 

7. Information received on the effect given to the recommendations of the Commission of Inquiry will be set out in three parts, dealing with: (i) the amendment of legislation; (ii) the exaction in practice of forced or compulsory labour, and any measures taken by the Government to stop the practice; and (iii) the enforcement of penalties which may be imposed under the Penal Code for the exaction of forced or compulsory labour.

I. Amendment of legislation

8. In its report, the Commission of Inquiry noted:

... 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 voluntarily, 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 "forced or compulsory labour" within the definition of Article 2(1) of the Convention.⁽⁶⁾ 

The Commission 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.⁽⁷⁾  Recalling that the amendment of these provisions had been promised by the Government for over 30 years and again announced in the Government's observations on the complaint, 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.⁽⁸⁾ 

9. In reply to the request to report on any measures taken on each of the recommendations set out in paragraphs 539 and 540 of the report of the Commission of Inquiry, the Government stated, in its letter dated 12 May 1999,⁽⁹⁾  "that the practical measures envisaged to be taken on the recommendations have been submitted to the Government of the Union of Myanmar for decision and they are already in the process of being actively considered by the high authorities". No indication was given regarding the nature of the "practical measures envisaged to be taken". In its preceding letter of 18 February 1999, again referred to in this connection, the Government recalled:

... that as per ILO recommendations to bring the relevant articles of the existing Village Act and the Towns Act in line with the ILO Convention 29 and for the Village Act and the Towns Act to be in accord with the present conditions prevailing in the country, a Working Group at the senior official level and a Ministerial Committee are now actively engaged in a review process.

It is a long-standing practice in Myanmar that any law that is enacted in the country is widely published for the information of the general public. Once this process has been completed and when the law is promulgated, it will accordingly be widely published to make it known to the public at large.

10. By letter of 18 May 1999,⁽¹⁰⁾  the Government indicated:

... that the Ministry of Home Affairs of the Government of the Union of Myanmar, has issued an Order dated 14 May 1999, in which the relevant authorities were directed not to exercise the powers conferred on them under the Provisions namely, Section 7 Sub-section (1)(l) and (m), and Section 9 and 9(A) of the Towns Act, 1907, and also Section 8 Sub-section (l)(g), (n) and (o), Section 11(d) and Section 12 of the Village Act, 1907.

The Government added "that this Order clearly stipulated that any person who fails to abide by this Order shall have action taken against him under the existing law". Finally, the Government pointed out that the Order has already been made public and has been circulated to all state bodies, government ministries and all local administrative bodies and will be published in the Myanmar National Gazette where all laws, procedures, notifications, regulations and directives are published, and that it was made known to local and international media at the conclusion of the ASEAN Labour Ministerial Meeting in Yangon on 15 May 1999.

11. Thus, by 18 May 1999, neither the Village Act nor the Towns Act had been amended, as requested in the recommendations of the Commission of Inquiry, nor had any draft law proposed or under consideration for that purpose been brought to the knowledge of the ILO. However, an Order "not to exercise the powers" under the Acts has been announced by the Government in its letter of 18 May 1999. The text of the Order made on 14 May 1999, which was not included in the Government's letter, is reproduced as Appendix III and will be considered in Part II.B. below.

12. In a communication of 3 May 1999, the Government of the United States indicated that it:

... is aware of no evidence which would demonstrate that the SPDC⁽¹¹⁾  has, or intends to, abrogate the provisions of the Towns and Village Acts which provide the legal (sic) basis for the forced labor policies. The USG understands that the SPDC recently decided, in fact, to continue its practice of forced labor and porterage, because it determined it could not afford to pay for the services now forcibly requisitioned.

II. The exaction in practice of forced and compulsory
labour and any measures taken to stop it

13. This part of the report will set out information regarding: (a) the continued exaction of forced or compulsory labour by the authorities; and (b) any measures taken to stop the practice.

A. Continued exaction of forced or compulsory
labour by the authorities

14. In its recommendations of July 1998, the Commission of Inquiry pointed out that "concrete action needs to be taken immediately" by the Government "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.⁽¹²⁾ 

15. In its letters to the Director-General of the ILO dated 12 and 18 May 1999,⁽¹³⁾  the Government of Myanmar did not refer to actual practice followed since the Commission of Inquiry issued its recommendations.

16. All information on actual practice that was received by the Director-General in reply to his request notes the continued widespread use of forced labour by the authorities, in particular by the military. Information received on the general pattern observed will be reflected in section (1) below before dealing under (2) with specific forms of labour and services as identified by the Commission of Inquiry in paragraphs 300-461 and 485-502 of its report.

(1) General observations

17. In its communication of 3 May 1999, the ICFTU draws attention to "relevant and consistent evidence of the persistence of forced labour in Burma" contained in documents from the following sources: Federation of Trade Unions -- Burma (FTUB), United Nations, Anti-Slavery International, Worldview International Foundation, Aliran Kasadaran Negara, Karen Human Rights Group, Images Asia, Shan Human Rights Foundation, Human Rights Foundation of Monland, Mon Information Service, Chin Human Rights Organization, Karenni Information Office, State Department of the Government of the United States, National League for Democracy (Burma) and Committee Representing the People's Parliament (Burma).

18. The ICFTU notes that:

Ever since the Commission of Inquiry's report was published, the ICFTU has continued to receive a wealth of relevant and consistent information, similar to that submitted to the Commission of Inquiry during its investigation. These reports demonstrate conclusively that the authorities of the country concerned have systematically continued, in the period since the Commission of Inquiry published its Report up to the time of writing, to impose forced labour in a widespread and systematic fashion. Neither have the authorities desisted in the least from carrying out or from condoning all the practices identified in the report of the Commission as occurring systematically in the context of forced labour, including arbitrary detention and imprisonment, extortion, torture, rape, arbitrary and extra-judiciary executions and other grave violations of fundamental human rights.

19. The ICFTU draws particular attention to:

... documents provided by the Karen Human Rights Group (KHRG) which contain copies of several hundred written, official orders from either the army or the representatives of the administration, demanding that village heads in Pa'an, Toungoo, Dooplaya and Papun Districts provide villagers in order to perform forced labour as porters, messengers and road labourers, or work at army camps, as well as orders demanding that said villages provide building materials, equipment, food and money to various military or civilian administration units.

As pointed out by the ICFTU, "all these orders are quasi-identical in shape, style and contents to the hundreds of forced labour orders which the Commission of Inquiry had examined and found to be authentic in the course of its investigation".

20. Like the earlier orders, those issued after July 1998 never refer to any legal basis for the authority exercised. Thus, the observation of the Commission of Inquiry that "the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or Towns Act"⁽¹⁴⁾  remains valid.

21. The United Nations High Commissioner for Refugees supplied a note dated 29 April 1999 on compulsory labour practices in Northern Rakhine State, Myanmar, where UNHCR has been operational since 1994 around the areas of Maungdaw, Rathedaung and Buthidaung. According to this note:

It is UNHCR's observation that, due in part to its advocacy efforts, there has been a decreasing trend in compulsory labour practices over the past year. There has been improvement to the situation in terms of the frequency of labour calls, the number of labourers required as well as the number of days of labour. There also appears to have been more attempts made to pay labourers for their work in money or in kind, although the amounts paid are usually meagre and far below market rate.

Nonetheless, compulsory labour practices have continued to occur. The following are some observations:

• Compulsory labour practices are found to vary from areas to areas according to the local personalities of the authorities in charge. In some areas, the authorities do not permit compulsory labour or impose a temporary halt to the use of compulsory labour, while in some others, recourse is often made to compulsory labour to undertake menial jobs.
• Compulsory labour is usually exacted by the border immigration authorities (NASAKA), by the local civil authorities (the "Village Peace and Development Council" also known as the "VPDC" and the "District Peace and Development Council" also known as the "DPDC") and the military.
• It appears that compulsory labour practices are particularly common in remote areas, such as in Buthidaung North, as well as in areas near military establishments/camps.
• Compulsory labour is commonly used for crop harvesting in farms belonging to the authorities, for domestic work in the compounds of the authorities and in portering for the military. On a few occasions recently, there have also been calls for labour in the construction of agricultural dams.
• It is reported that while labourers are usually not harassed or ill-treated during work, nonetheless, they are not provided with food and, in some instances, supervised by armed personnel. It has also been reported recently, that on one occasion, failure by some villagers to abide by labour calls have resulted in their arrest by the authorities.

UNHCR has also received information that in order to reduce disruptions in adults' income-earning activities, families have resorted to sending children to perform labour in place of adult members of the families.

22. In a communication of 3 May 1999, the Government of the United States indicated that members of the US Embassy in Yangon (Rangoon):

... have met personally, as recently as January 1999, with villagers in Sagaing Division (Burman), Irrawaddy Division (Burman), and in the Chin, Kachin, and Shan States (minorities). Villagers freely and openly told our Embassy that they, and every household in their villages, continue to be forced to contribute family members for forced labor. Single member households comprised of aged widows or widowers are subject to the same corvée. (The USG understands that family breadwinners sometimes feel obliged to fulfil the forced labor quota by offering up children, aged relations, and other "least productive" members; a development which compounds the level of human suffering.) Members of households who resist the exaction of forced labor are subject to beatings or economic deprivation.

One feature of forced labor in Burma is the capriciousness with which it is sometimes exacted. This is a function of several factors including, inter alia, the attitude of the local military commander, and how many infrastructure projects are within a walking distance of up to several days. In December 1998, members of our Embassy spoke with villagers in the Chin state who volunteered that they were victims of both forced labor and porterage. The villagers added that, with regard to the latter, soldiers had the habit of appearing without warning and hauling off people at random to carry military supplies for indefinite periods of time. One middle-aged woman also divulged, in the relative privacy of her house, that Burmese soldiers visited the village to carry off girls for the night, raped them, and then released them to find their way back home the next morning.

Finally, the military have been instructed to produce the food and supplies required for their own livelihood. In reality, however, they continue to compel the closest villages to furnish these goods, which are derived from the villagers' labor, without regard for what this leaves the villagers to live on.

23. Another government indicated that in compiling its report in reply to the Director-General's request for information, it had "sought the views of individuals and organizations from all over Burma/Myanmar", which had given "a number of first-hand examples of forced labour dating from the ten months between start July 1998 and end April 1999". Examples mentioned will be reflected in section (2) below.

24. The World Confederation of Labour transmitted a note of May 1999 by Amnesty International on its concerns at the 87th International Labour Conference, in which it is noted that:

The Governing Body of the ILO, at its meeting in March 1999, expressed its dissatisfaction with the lack of action to comply with the Inquiry's recommendations by the Government of Myanmar.

Myanmar's military Government, the State Peace and Development Council (SPDC), routinely seizes thousands of ethnic minority civilians, including women and children, to work against their will and without pay to build so-called "development projects" such as roads and military installations. Members of the Shan, Karen and Karenni ethnic minorities living in the east of the country bordering Thailand are forced to "contribute" their labour. Many spend so much of their time working for the military that they cannot support themselves and their families.

Earlier this year Amnesty International interviewed over 100 ethnic minority civilians who had recently fled to Thailand -- almost every one of them reported that they had been compelled by SPDC troops to clear forests, build roads and military barracks, and even cultivate crops to feed the military.

...

Although forced labour has decreased in central Myanmar, it is still being reported on a large scale in the seven ethnic minority states which surround the central Burman plain. SPDC troops usually contact the village headman for labourers, who then organize a rotation system whereby each family must provide one person for a project. Teenaged children are frequently sent to do forced labour because their parents must earn a living for the family and cannot spare the time. The length of time spent per month varies from place to place, but it usually interferes with the family's ability to support itself. Yet the Government claims that these civilians contribute their labour voluntarily as part of their civic duty, an assertion which is contradicted by the hundreds of forced labourers who have given testimonies to Amnesty International.

25. A great number of interviews referred to by the ICFTU in its submission and conducted by Karen Human Rights Group (KHRG) staff between December 1998 and April 1999 with villagers in Nyaunglebin District of Pegu Division and those who have fled the area indicates that there has been no decrease in forced labour in Nyaunglebin District since mid-1998, and in fact many villagers have experienced an increase in forced labour and demands for the associated cash fees. This is consistent with information gathered from other regions of Kayin (Karen) and Kayah States by KHRG.

(2) Forms of labour and services requisitioned

(a) Portering, military camp work and other
work in support of the military

26. The ICFTU has submitted a considerable number of orders addressed to village heads by military officers (or, in a few cases, by a Village Peace and Development Council, referring to an order given by a military officer). Several dozens of these, addressed to village heads in Thaton, Pa'an, Toungoo, Dooplaya and Papun Districts of Kayin (Karen) State and dated between August 1998 and February 1999, order a number of "servants", "rotation servants" or "volunteer workers" to be sent without fail; it is often specified that if the village head fails to comply it will be entirely his or her responsibility; in a case where one worker from a village had "returned without permission", the village head was ordered to send himself immediately 24 kilograms of pork or fine money of the value of the pork as well as to come himself "today with one person to take his place as a volunteer worker"; the order indicates that "the village head and the village will be severely punished if they fail".⁽¹⁵⁾  In some cases the tasks to be performed are not mentioned in the orders; in others, it is specified that the persons to be sent are to work as porters, to repair a military camp or to act as messengers for the military. In most cases, the length of the assignment is not mentioned; in others, a number of days is indicated; sometimes it is specified that workers have to bring their own food.

27. Some 40 documents submitted by the ICFTU contain information gathered in interviews conducted and reports published by the Federation of Trade Unions -- Burma (FTUB) and a number of non-governmental organizations that give details of hundreds of cases in which forced labour was exacted between August and December 1998 and in 1999 for portering, military camp work, sentry duty and other work in support of the military all over Kayin (Karen) State, in Kayah State, Pegu Division, Arakan State, Shan State, Chin State and Tanintharyi (Tenasserim) Division, in conditions similar to those set out in paragraphs 300 to 388 of the report of the Commission of Inquiry. Details provided often include the designation of the military units and/or camps and the names of military officers involved, as well as those of villages and of individual victims.⁽¹⁶⁾  In a number of cases, forced labour is reported to have been imposed in circumstances of extreme brutality, involving the destruction of villages, torture, rape, the maiming and killing of exhausted, sick or wounded porters and (in one case) of a non-cooperative village head, and the use of civilians, including women and children, as mine sweepers and human shields.

28. According to the Amnesty International note which was submitted by the World Confederation of Labour:⁽¹⁷⁾ 

Porters are often beaten if they become too weak to carry their loads and cannot keep up with the military column. One 42-year-old Shan farmer who had sought refuge in Thailand told Amnesty International that he had been taken as a porter for ten days in October 1998 by SPDC troops and forced to carry ammunition. Because he was given so little food, he became weak and could no longer walk. A soldier slapped him across the face several times, catching his finger in the porter's left eye. He managed to escape by rolling down the mountainside and hiding in the forest nearby. Eventually he made his way back home but was too frightened to seek medical treatment. As a result of his injury he has permanently lost the sight in one eye.

29. According to a report submitted in January 1999⁽¹⁸⁾  by the United Nations Special Rapporteur on the situation of human rights in Myanmar, throughout 1998 the SPDC military are reported to have been taking porters from the main towns throughout central and southern Shan State, where the Shan resistance is operating. The SPDC had been sending out regular military patrols from its bases around the area, each time demanding groups of porters from the civilian population. The households provided porters on a rotation basis, and if someone could not go, they were made to pay 8,000-10,000 kyats to hire a replacement.

30. In reply to the Director-General's request for information, a government indicated that sources from all over Myanmar reported that forced labour of the kinds described in paragraphs 300 to 388 of the Commission's report continues. Last dry season saw relatively muted fighting between the army and ethnic insurgents. As a result, demands for porters to help in military operations over the past ten months appear to have been fairly mild. But there were numerous instances of the military demanding labour to carry equipment and goods to and from army camps and in construction and maintenance work. The following examples are quoted:

• Kayin (Karen) State. According to a first-hand report, households in Myawaddy township were forced to provide porters for military operations against Karen insurgents and to provide labour routinely for army camps, including carrying water over long distances.
• Kayah State. It was reported that civilians found to have travelled outside restricted zones were rounded up to serve as porters and that villagers were required to provide support services to army camps in all six townships in Kayah State.
• Chin State. According to an eyewitness report, households in Paletwa township were forced to provide porters to support army movements.
• Arakan (Rakhine) State. There were copious reports of recent demands for porters and construction/maintenance work on army camps in Maungdaw, Buthidaung and Minbya townships.
• Shan State. Townspeople from several towns in northern Shan State were reported to have been required to contribute labour to prepare for a visit by Senior General Than Shwe in April. This ranged from menial tasks aimed at beautifying the area to providing transport free of charge to his convoy.
• Mon State. According to first-hand reports, villagers were forced to cut bamboo to supply army camps in southern Mon State.
• Tanintharyi (Tenasserim) Division. There were reliable reports in early May that displaced Karen villagers continue to be used for the porterage of military supplies.

  (b) Work on agricultural and other
  production projects

31. Documents submitted by the ICFTU contain information gathered in interviews conducted and reports published by non-governmental organizations and the National League for Democracy concerning the continued imposition of forced labour on villagers in Kayin (Karen) State, Kayah State, Pegu Division, Arakan State, Shan State, and Yangon (Rangoon) Division for agricultural and other production projects undertaken by the military, including work on army rubber plantations, the digging of irrigation ditches to grow rice, the clearing of fields and virgin lands, the growing of beans or other vegetables for the army, and the digging of ponds and raising of fish, in conditions similar to those described in paragraphs 394 to 406 of the report of the Commission of Inquiry.

32. In his report submitted in January 1999⁽¹⁹⁾  the United Nations Special Rapporteur on the situation of human rights in Myanmar mentioned that villagers in Shan State apparently had been forced in September 1998 to plant yellow beans for the army, then tend the plots and do weeding and fencing for troops at local bases. Also, throughout 1998, the Special Rapporteur received reports of villagers from several (named) villages being forced to work for (named) army battalions for periods of up to two weeks splitting rocks near the Salween River crossing of Ta Sarng in Shan State. The rocks were conveyed by the army to big cities like Yangon (Rangoon) where they were sold for 12,000-15,000 kyats per truckload.⁽²⁰⁾ 

33. In reply to the Director-General's request for information, a government, referring to paragraphs 394 to 407 of the report of the Commission of Inquiry, mentioned the following examples of forced labour associated with agricultural and income-generation projects from the last ten months:

• Ayeyarwady (Irrawaddy) Division. The army and police were reported to be forcing villagers from Mawlamyainggyun township to contribute labour to a range of income-generating projects, including agriculture, livestock breeding, fish farming and brick production. The army was reportedly also demanding that local truck owners transport finished bricks without payment.
• Arakan (Rakhine) State. According to several reports, villagers in Maungdaw township had to provide labour for government-owned peanut fields and villagers in Eastern Arakan (Rakhine) State had to work on summer rice and sugarcane fields.
• Sagaing and Magway Divisions. Detailed reports were received in December of villagers being taken against their will to work on land reclamation projects in Kalay, Monywa and Gangaw townships. The projects are to raise income for local government and for civil servants' welfare organizations. Some workers are paid. But the projects are highly unpopular and at least ten of the workers have reportedly died from malaria.
• Shan State. There were first-hand reports of forced labour on new agricultural projects near Hopong and Taunggyi run by private entrepreneurs closely connected with the Government. In Hopong there were also instances where farmers were reported to be forced to grow soya beans under contract for the army.

  (c) Construction and maintenance of
  roads, railways and bridges

34. According to a report submitted by the ICFTU which was published in January 1999 by the Human Rights Foundation of Monland, on "The conscription of forced labour on the repair of Ye-Tavoy railway road":

The embankment, which was built only with manual labour without using machines, has been yearly destroyed by flood and the villagers were forced to rebuild. However, the destruction of the embankment in June-July 1998 was huge. Therefore, the local SPDC authorities and military battalions mainly from LIB Nos. 406, 407, 408, 409, 410 and 273 have given instructive orders to concerned village tract leaders to send labourers to the set construction site to rebuild the embankment again. The using of villagers in the construction started since June-July 1998 until the end of the year.

...

A total of estimated 3,000-4,000 local inhabitants -- men, women, minors and elder persons alike -- have been subjected to contribute their labour without payment or foods, to rebuild the embankment after the rainy season ended in October. During the rainy season from June to September, the military has used about 1,500 to 2,000 villagers to rebuild some parts where the water level did not reach the embankment. After June, rain became lesser and lesser so the military has gradually increased its use of forced labour to speed up the rebuilding process since October with plans to run their train before the end of 1998.

The military defined many construction sites depending on the embankment parts which were destroyed by flood. There have been many construction sites between Yebyu and Paukpingwin, which is about 75 miles long and depending on the bigger or lesser destruction, the necessary villages were sent to the sites. In some sites, where huge embankments were destroyed, the military put about 800 villagers and guarded and forced them to contribute labour.

When the military planned and started using the villagers, the respective local military battalion instructed every village tract headmen to send the lists of the total household and population numbers in the villages. After the battalions received households and population list, they could estimate the number of villagers they could get from each village to work in the construction. The methods of conscription of the villager labourers by the local SPDC authorities and military battalions have been very similar from village tract to another. As they already received the list of household numbers in the villages in a particular area, they just sent instructive orders to the village tract or village headmen to send how many labourers to which worksite for how many days. After receiving the instructive orders, the concerned village headmen have to arrange to select the villagers to go to the worksite. Normally, the selection of labourers from the villages was based on a rotation basis. Almost all villagers in any village in Yebyu, Longlon, Thayet Chaung and Tavoy townships have had to work in the construction sites about ten to 15 days in every month.

35. According to reports on the conscription of forced labour for widening the Ye-Tavoy motor road, published in January 1999 by the Mon Information Service (Bangkok) and in February 1999 by the Human Rights Foundation of Monland (quoted below) that have been submitted by the ICFTU:

Since mid-November, 1998, SPDC local battalions in Tenasserim Division planned to widen Ye-Tavoy motor road, which is about 90 miles long and have used the civilians in Yebyu and Tavoy township area as unpaid labourers to complete the construction. The order came from SPDC's Coastal Region Military Command based in Mergui town and its commander, Maj. Gen. Sit Maung, also gave responsibility to Col. Maung Oo, the commander of Strategic Command in Yebyu area, to complete this construction. In mid-November, Col. Maung Oo also called a meeting with all village leaders in Yebyu township and instructed them to send the villager labourers to the construction sites.

...

The local military battalions have conscripted many hundreds of villagers to the construction sites to widen the motor road. The local authorities also shared the work duties to villagers that each family in Yebyu and Tavoy townships had to take responsibility to build widening about 20-metre long [section of the] road. A member or more than one member of each family had to clear 1 metre of land along both side of the road and fill with small pieces of stones. Then, the villagers have to take responsibility to dig the earth to create water canals along the road. They have to dig the earth to get 2 feet width and 1 foot depth water canal alongside of the road after they completed widening the road. From these water canals, the villagers have to clear foliage for another 50 feet on both sides of the road. In building the new wider road, the villagers have to carry small kyins of small pieces of stones from outside of the road and laid these stones on the road. They have to collect these big stones from hills or streams which are at least half a mile or 1 mile from the construction site. The villagers collected these stones and crushed these into small pieces of stones and then brought to the construction site. Sometimes, all villagers from a village collected these stones and brought them together to the construction site with ox carts. If the villagers could not get stones or were in a hurry to complete the construction, they have to buy small pieces of stones from the nearest military battalions. Generally, the villagers have to pay at least 800-1,000 kyat for one kyin of stones to the battalions which take responsibility for guarding the villagers along the road. And the villagers have to pay transportation costs to load and bring these small pieces of stones to the place in which they have to lay.

...

During the construction ... battalions also conscripted some villagers and gave work duties to gather stones besides constructing the road. After they gathered stones, they have to give it to the battalions. Then, the battalions sell these stones again to other villagers who urgently needed the stones. According to reliable sources, the local battalions also received government budget, about 200,000 kyat per mile to complete the widening of the road, but these battalions conscripted forced labour from local villages and did not pay any labour cost to the villagers.

...

Before they left for the worksites, the villagers were also instructed by their headmen to carry their own food, cash and tools because the military would not provide any food or tools for villagers. The villagers said they might have to carry about 30 kilos of rice to the worksite which might be enough to eat for one week and 1,000 kyat to buy supplement food such as cooking oil, vegetables, etc. Because of this construction, the villagers have less and less time for their own to get income or crops for survival. As a result, some villagers also fled from the native village to escape from the constant conscription of forced labour for this Ye-Tavoy motor road and other type of forced labour that often has been required by the SPDC battalions.

36. Information submitted by the ICFTU, contained in interviews conducted and reports published by the Karen Human Rights Group, gives details concerning:

• the continued use of forced labour of townspeople and villagers from surrounding areas for the construction of the Toungoo - Mawchi road (suspended during the rainy season, June to October 1998, but since resumed);
• the imposition, between December 1998 and March 1999, of up to one month's forced labour on villagers in various places of Nyaunglebin District (Pegu Division) for digging dirt and making new "car roads";
• forced labour by villagers in July to September 1998 on the old road connecting Saw Hta, Kwih Lat Der and Htee Hta Baw in Dooplaya District, Kayin (Karen) State;
• the imposition starting January 1999, of forced labour on some 20 villages in Kyauk Kyi township to build a new road from Na Than Gwin to Mone. This is an excerpt from the interview conducted with a villager by the Human Rights Section of the Federation of Trade Unions -- Burma (FTUB):

  The road is 15 feet wide, 24 feet wide at the base [of the embankment], and raised by 4.5 feet. It is at least 20 miles long. The work was divided and each family had to dig the earth and make a segment of road 54 feet long. Therefore villagers had to bring cattle, rakes, baskets, hoes, etc. and work until their quota was finished. The villagers were even ordered to work at night in February, so the villagers brought lamps, batteries and fluorescent tubes to the worksite and had to work nights. There were no materials supplied and there was no payment for the construction. The intelligence soldiers watched while villagers were working but they did not beat anyone, because the work was by the quota system so if a family could work faster then they were allowed to go back earlier. Therefore entire families came to the work, so children, women and old people around 50-60 years old could be seen on the worksite.

  In March the earth work was almost finished, except the bridges. For bridge construction, the intelligence soldiers confiscated wood, even small pieces, from houses and ordered villagers to build bridges. Some villagers had to cut down trees in the forest for bridge construction. Then each family was ordered to give 500 Kyats to buy materials for the construction. Moreover, each family had to send a person for three days for bridge construction. There were around ten bridges or maybe more. If a family could not work on bridge construction, they had to give 200 Kyats per day to hire a substitute person. The road construction crossed rice fields and farms but no compensation was given to owners of the land.

37. As indicated in paragraph 26 above, the ICFTU has submitted a considerable number of orders addressed to village heads by military officers. Several of these, addressed to village heads in Pa'an and Thaton Districts of Kayin (Karen) State in October 1998, order people from the village to be sent with their own tools to clear the shrub along car roads, or intimate that "the road worker group must go to work at the worksite". Similarly, forced labour imposed in September 1998 on villagers for road repair in Toungoo District is reported in an interview conducted by the KHRG and submitted by the ICFTU.

38. The ICFTU has also submitted a report of April 1999 by the Shan Human Rights Foundation, stating that:

SPDC troops in Kun-Hing township are forcing many children, some as young as 7-8 years old, to break stones for paving roads. Since 4 April 1999, Kun Hing-based battalions IB246 and LIB524 have been forcing displaced people who have been forcibly moved to the outskirts of the town from the areas such as Sai Khao, Kaeng Kham and Kaeng Lom over the last two to three years to break rocks and stones to be used in paving the Kung Hing-Nam Zarng and Kung Hing-Kaeng Tung main roads. The SPDC troops said that the children of the relocated people were useless and had nothing to do, and as they could not go to school they must be made to work. Almost 200 children, including 7-8 year olds, are being forced to split stones.

39. In reply to the Director-General's request for information, a government, referring to sources from all over Myanmar, quoted the following examples of forced labour during the last ten months, corresponding to paragraphs 408 et seq. of the report of the Commission of Inquiry:

• Yangon Division. It was reported that each dry season since 1990, villagers from Htantabin township have been forced to provide labour for earthworks projects and for roadbuilding. Some projects are quite distant from the villagers' homes; transport costs and food are the villagers' own responsibility.
• Mon State and Tanintharyi (Tennasserim) Division. There were first-hand reports of forced labour associated with a major project to widen the trunk road south between Ye and Dawei and between Myeik and Kawthoung. Villagers are being required to work on the road and/or collect road-building materials, or alternatively pay a fine.
• Kayah and Kayin (Karen) States. According to earlier reports villagers had been forced to work on a new road through Thaundaung township (Kayin (Karen) State) into Phasawng township (Kayah State) although some work has apparently now stopped due to a resumption of fighting. It was also reported that work on a road to the Shadaw relocation site (Kayah State) has begun, using relocated villagers who are sporadically paid with rice.
• Arakan (Rakhine) State. There were first-hand reports of a major road-building project under way to link Kyauktaw, Mrauk Oo and Minbya and that villagers have had to provide labour and to collect gravel and other road-building materials, without any payment. There were also several reports of other smaller road and bridge-building projects in Maungdaw and Buthidaung, for which labourers were sometimes paid.
• Chin State. In Paletwa township, southern Chin State, villagers had to provide labour and to collect road-building materials for a new trunk road.
• Shan State. There were reports of road projects using forced labour in Kyaukme and Hsipaw townships.
• Kachin State. There were first-hand reports of forced labour associated with the new bridge in Myitkyina opened in October, including work on support roads.
• Mandalay Division. There were reports of villagers being forced to provide labour and collect road-building materials to improve a trunk road in Thabeikkyin township.

  (d) Other infrastructure work

40. Information contained in reports by the National League for Democracy and various non-governmental organizations, submitted by the ICFTU, indicates the continued use of forced labour for infrastructure projects ranging from digging canals and building dykes to building pagodas. According to reports by the NLD:

(1) From 1 January 1999, villagers living in the area between Pa-kko-ku township and Myit-chay township in Magwe Division have been ordered to clear all their crops (without compensation) and give voluntary labour in digging canals for the implementation of a new project.

(2) Since August 1998 to date [report issued February 1999] the authorities have required forced labour of one person per household for a canal construction project (without payment and setting aside his own work). The villages from which this conscription is made are ... [16 named villages] in the township of Myaung.

In addition to this arduous and lengthy service with no remuneration the authorities have collected by force a total of approximately 5 million kyats at the rate of 50 kyats per acre (total acreage of 50,000 comprising 85 villages in 52 village tracts). What they have done with the money, no one knows.

Then again, those workers who do not own any land have to pay an average of 100 kyats per household, those who are in service have to pay 100 kyats per head and those traders or brokers have to pay 200 kyats. The township authorities have issued orders threatening action for flouting authority against those who fail to make payment within the prescribed period.

Having to provide a long period of forced labour in addition to the allotted impositions has resulted in a great hardship (mental and physical) to the villagers in Myaung township.

(3) For the embankment of Sae-ma creek situated close to Pauk-pin village (Kayan township), every household in the villages of ... was forced to dig two pits (total 10,000 pits) between 27 and 31 December 1998. In default, payment of 1,200-1,500 kyats was demanded. Similar orders were made in December 1998 for the embankment of other creeks in Kayan and Thanlyin townships.

(4) The existing embankment (which was constructed with machines) to prevent permeation of salt water on the eastern margin of Kayan township having deteriorated, forced labour had to be given by one member of every household in the village tracts of ... [11 named village tracts]. Regardless of rain or sun they were forced to work on this project throughout the months of August and September 1998. In default, a penalty of 300 kyats was demanded.

(5) Another information received is that early in 1999 people were being called up to work on constructing an embankment to capture water from the creeks and streams running out of the Chin State to irrigate the land. Villagers in the Monywa District declined to go to the Hantharwaddy camp site. Therefore, the power wielding divisional authorities summoned all the administrators in all the villages and ordered them to go and work at the Hantharwaddy camp site themselves. Failing to comply would result in heavy penalties.

Thee-bin-kha-yine district village tract administrators in the township of Butalin were reluctant to conscript the villagers in their locality so they went themselves and worked on the Kalaymyo Hantharwaddy camp site. This tactic of holding the village administrators to ransom was not at all pleasing to the villagers. Fifteen villagers followed up to the site to relieve their village elders. The distance is about 300 miles to the camp site and cost of travel (to and from) is about 4,000 kyats. Having to travel at one's own expense with no remuneration for labour was not an attractive prospect for anyone.

The facts stated above show the cruel and inconsiderate attitude of the power wielding authorities towards their fellow countrymen and citizens.

...

Central Executive Committee
National League for Democracy
Rangoon

41. Documents submitted by the ICFTU report the extensive imposition of forced labour on hundreds of villagers for the construction of dykes. Thus, the January 1999 report by the Mon Information Service (Bangkok) on "forced labour on construction of dykes for private rice-cultivation projects of SPDC military" indicates that:

Since October 1998, the SPDC military has been constructing a range of dykes on the coast in Yebyu township with the daily use of 200 to 300 unpaid and forced labourers conscripted from the more than ten Mon villages of Kywethonnyima village tract. The dykes are being constructed to create new cultivable land for realization of planned private rice projects there. The 7,758 feet-long dyke is being constructed between Kywethonnyima and Chattaw villages. Another such dyke will soon be constructed between Mea Taw and Chabon villages. Each village in the area must provide 30 to 50 labourers to work on the dyke construction for 15 days per month during the low-tide period.

Under the instruction of the local No. 273 battalion, the village tract PDC at Kywethonnyima issued an order on 2 October 1998, requiring all villages in the tract to provide labourers to work on the dyke construction [the full text of this order is quoted].

Besides having to work on the dyke construction, these several villages have also been forced into arduous labour on the Ye-Tavoy motor road repair project since November 1998. This repeated and excessive use of unpaid, forced labour by the SPDC has effectively deprived the local inhabitants of their own subsistence. Following the completion of the dykes it is certain that the local villagers will thence be compelled to work as virtual slave labour on the rice projects in order to enrich the SPDC officers. These unendurable demands, the frequent extortion and physical abuse being inflicted on the villagers have led a number of families to flee to outlying areas.

42. Similarly, the imposition of forced labour on several hundred villagers in the second half of 1998 for the construction of each of four major dykes in the Yebu township area for the Army's rice cultivation lands is described in a February 1999 report by the Human Rights Foundation of Monland, submitted by the ICFTU with details including working, living and sanitary conditions at the construction sites and the mistreatment of villagers by soldiers guarding them:

The villagers who were conscripted as labourers were not supported with food, shelter and medical care by the local battalions or village tract leaders. Whenever the villagers went to construction sites, they had to bring their food, tools and cash to buy other supplement food such a vegetables, cooking oil, salt and others. For a villager who went to construction site for one week period, they have to bring about 8 kilos of rice and 1,000 kyat to buy other supplement food. Since the villagers have been forced to work in various kinds of government infrastructure project sites, almost have not enough food to bring along with them or no cash to buy other needed food for survival. In any construction site, because of overcrowded population and lack of pure water, the villagers could not get pure water to make food or use it as drinking water. Due to time limitation and no plan adopted by government officials, the villagers did not build any latrine in construction site and this situation also affected used water nearby. Facing food shortage and water shortage problems has been as common conditions in every construction site.

On the other hand, the working hours in almost construction site are approximately ten hours per day.

...

Even during rainy season, the villagers were conscripted in construction of Singu and Hmaw-gyi dikes. ... The villagers had to build very rough temporary shelters by roofing with banana leaves but no walls. These shelters could not protect from rain in rainy season and cold snow during cold season, that takes from November to February in Burma.

... While they were building the pole walls to close water from streams, the villagers had to stay for the whole day. And they also had to submerge in the water to hit the top of the poles or to make sure that the poles were put in order or not. Regardless of rain or hot sun, the villagers could not take any rest and had to work full time under bad weather conditions. The soldiers always guarded while the villagers were working. Some villagers were also hit or beaten when the soldiers were dissatisfied with their working situation.

Because of shortage of food and pure water, terrible weather conditions, hard work and improper temporary shelters, many villagers have been very vulnerable to suffering from various kinds of diseases. During the construction, there were many women and children working instead of their husbands or fathers who had to work in farms and other day jobs to get income or food for families' survival. Thus, a majority of women and children in several worksites have suffered from diarrhea, weakness, fever and other diseases while they were working in the construction site. However, the soldiers did not allow any sick patient to return without a substitute arriving and replacing him or her. The village headmen had to take responsibility to find substitute villagers to replace the sick villagers. In addition, the soldiers did not give any medicine or treatment to these patients, but the villagers had to help each other to buy medicines and treated the patients.

In many cases the village headmen were very often beaten by the soldiers for their inability to manage and send villagers to the worksites as instructed by their commanders. As an example, a village headman from ... (42 years old) was severely beaten by the soldiers from LIB No. 408 in the third week of September. ... The soldiers beat him with jungle boots, gun butts and sticks for nearly half an hour and so he became conscienceless. His head was broken and his back was severely injured. They also hit his stomach with gun muzzles and so he got long-term inner injuries and he could not work any hard work more.

...

Similarly, the villagers were often mistreated while they were working on a construction site. The soldiers also guarded the worksites and whenever they had any dissatisfaction against villagers, those were always beaten. Verbal abuses, such a shouting and threatening was a normal abuse against the villagers. Sometimes, they kicked the villagers with jungle boots or gun butts or hit with fists. In the second week of November 1998 while the soldiers ordered the villagers to close a stream in Kywe-tho-nyima dike construction, they also forced the villagers to submerge into water and hit the poles. While the villagers were submerging into water, the soldiers also were dissatisfied with three villagers from Cha-taw village and beat them. One villager was severely beaten. ... As a result, his left eye became blind.

On the other hand, although the villagers were sick on the worksites, they could not stop and continuously had to work in the construction until the substitute villagers arrived there. If they stopped working, they could be beaten.

43. In documents submitted by the ICFTU, based on interviews conducted by the Karen Human Rights Group, the imposition of forced labour by soldiers on villagers (including non-Buddhists) for the construction of pagodas is reported for central Dooplaya district (Kayin State) in July-Septemer 1998 and a number of places in Nyaunglebin district (Pegu Division) up to early 1999.

44. In reply to the Director-General's request for information, a government, referring to sources from all over Myanmar, quoted the following examples of forced labour associated with infrastructural development projects during the last ten months, corresponding to paragraphs 444 to 457 of the report of the Commission of Inquiry:

• Ayeyarwady (Irrawaddy) Division. There were detailed reports of villagers in Ngapudaw and Laymyethna townships being forced to provide labour to build earth embankments in March-April. Those unable to do so had reportedly been fined and/or imprisoned.
• Magwe Division. According to detailed reports, the local government authorities began forcing villagers in Pakokku township to work on a large canal project in January and one villager who protested was subsequently detained. There were also reports of households in Taungdwingi township being forced to provide labour to smaller canal projects or make cash contributions of varying amounts.
• Arakan (Rakhine) State. It was reported that in Maungdaw and Buthidaung, Muslim households have been forced to provide labour to help build several new "model villages for non-Muslim immigrants.
• Chin State. It was reported that in Hakka township, northern Chin State, villagers have been forced to contribute labour to a hydroelectricity project. In Paletwa township, southern Chin State, villagers had to provide labour and to collect road building materials for a new trunk road.
• Shan State. There were reports of villagers being required to contribute labour to water projects associated with the Zawgyi dam in south-western Shan State. Some are being forced to dig canals which will actually divert water away from their own fields towards government-run agriculture projects.
• Bago Division. There were detailed reports of households in Waw township, including female-headed households, being ordered to help rebuild dykes after last year's monsoon. Those unwilling or unable to contribute any labour were required to hire others to take their place.

B. Measures to stop the exaction in practice
of forced or compulsory labour

45. In its recommendations of July 1998, the Commission of Inquiry indicated that:

... 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 ...⁽²¹⁾ 

46. While the Commission indicated that action needed to be taken immediately, it appears from the information supplied by both the Government of Myanmar and other sources that the concrete measures called for by the Commission of Inquiry had not been taken by mid-May 1999.

47. One single source mentioned two isolated instances of corrective action taken by the Government of Myanmar upon complaints by the National League for Democracy. In reply to the Director-General's request for information, a government, having listed examples of forced labour that had been supplied by sources from all over Myanmar, added that it had been quoted:

... two examples of cases over the past ten months where the Government has acted to stop forced labour practices. On 2 November the Chairman of the opposition National League for Democracy wrote to SPDC Chairman Senior General Than Shwe complaining that civilians in Htantabin township, Yangon Division, had been told by loudspeaker to contribute labour towards a land reclamation project and that 500 people were now being forced to help clear swampland. On 23 November he wrote again to complain that the army were forcing villagers in Kungyangon township, Yangon Division, to work on army-owned salt pans. Demands for forced labour on these two projects has now reportedly stopped and there are reports that the Government has taken disciplinary action against a local official.

According to the same government, these:

... two examples were a small step in the right direction. But the report presented overwhelming evidence that forced labour continued to be used routinely and systematically over the past ten months in every one of Burma/Myanmar's 14 states and divisions. There was scant evidence of any serious will on the part of the Government to take concrete action in response to the Commission of Inquiry's report. In a speech to mark Labour Day on 1 May, SPDC Chairman Senior General Than Shwe instead urged Burmese/Myanmar workers to "beware of neo-colonialists meddling and exerting control in international organizations ... with an air of safeguarding human rights and workers' rights".

48. While no general action to stop the imposition of forced labour had thus been taken by the Government of Myanmar until mid-May 1999, the Government indicated in its letter of 18 May 1999 that an Order was issued by the Ministry of Home Affairs dated 14 May 1999 directing the relevant authorities not to exercise the powers conferred on them under section 7(1)(l) and (m), and section 9 and 9A of the Towns Act and section 8(1)(g), (n) and (o), section 11(d) and section 12 of the Village Act, 1907.⁽²²⁾  This indication does not fully correspond to the content of the Order issued by the Ministry of Home Affairs dated 14 May 1999,⁽²³⁾  which directs:

... the Chairmen of the Ward and Village Tract Peace and Development Councils and the responsible persons of the Department of General Administration and the Myanmar police force not to exercise powers under these provisions relating to requisition for personal service prescribed in the abovementioned Towns Act, 1907, and the Village Act, 1907, until and unless any further directive is issued, except for the following circumstances:

(a) requisition for personal service in work or service exacted in cases of emergency on the occurrence of disasters such as fire, flood, storm, earthquake, epidemic diseases that would endanger the existence or the well-being of the population;

(b) requisition for personal service in work or service which is of important direct interest for the community and general public and is of present or imminent necessity, and for which it has been impossible to obtain voluntary labour by offer of usual rates of wages and which will not lay too heavy a burden upon the present population.

49. The Order issued on 14 May 1999 reserves the exercise of powers under the relevant provisions of the Village Act, 1908,⁽²⁴⁾  and the Towns Act, 1907, in several ways. In the first place, the Order reserves "any further directive" that may be issued to exercise the powers.

50. Secondly, the Order makes two exceptions under (a) and (b) whose language corresponds in part to the Forced Labour Convention, 1930 (No. 29). Exception (a) reproduces the essential wording of the exception from the scope of the Convention made in its Article 2(2)(d). Exception (b) reflects part of Article 10 of the Convention which reads as follows:

Article 10

1. Forced or compulsory labour exacted as a tax and forced or compulsory labour to which recourse is had for the execution of public works by chiefs who exercise administrative functions shall be progressively abolished.

2. Meanwhile, where forced or compulsory labour is exacted as a tax, and where recourse is had to forced or compulsory labour for the execution of public works by chiefs who exercise administrative functions, the authority concerned shall first satisfy itself --

(a) that the work to be done or the service to be rendered is of important direct interest for the community called upon to do the work or render the service;

(b) that the work or the service is of present or imminent necessity;

(c) that the work or service will not lay too heavy a burden upon the present population, having regard to the labour available and its capacity to undertake the work;

(d) that the work or service will not entail the removal of the workers from their place of habitual residence;

(e) that the execution of the work or the rendering of the service will be directed in accordance with the exigencies of religion, social life and agriculture.

51. It will be noted that conditions made in paragraph 2(d) and (e) of Article 10 of the Convention have not been retained in exception (b) of the Order of 14 May 1999.

52. More importantly, it is indicated in paragraph 1 of Article 10 of the Convention that forced or compulsory labour of the kind envisaged under this Article "shall be progressively abolished". As noted by the Commission of Inquiry in its report,⁽²⁵⁾  Article 10 is part of a series of provisions containing conditions and guarantees "to restrict and regulate recourse to compulsory labour pending its suppression", that is, during the "transitional period" provided for in Article 1(2) of the Convention. In this regard, the Committee of Experts on the Application of Conventions and Recommendations observed in 1997 that:

Since the Convention, adopted in 1930, calls for the suppression of forced labour within the shortest possible period, to invoke at the current time (67 years after its adoption) that certain forms of forced or compulsory labour comply with one of the requirements of this set of provisions, is to disregard the transitional function of these provisions and contradict the spirit of the Convention.

In the view of the Committee, use of a form of forced or compulsory labour falling within the scope of the Convention as defined in Article 2 may no longer be justified by invoking observance of the provisions of Article 1, paragraph 2, and Articles 4 to 24, although the absolute prohibitions contained in these provisions remain binding upon the States having ratified the Convention.⁽²⁶⁾ 

The Commission of Inquiry in its report⁽²⁷⁾  has shared this view, having regard also to the status of the abolition of forced or compulsory labour in general international law as a peremptory norm from which no derogation is permitted.⁽²⁸⁾ 

53. Moreover, in its findings as to compliance with the Convention, the Commission of Inquiry has considered that:

... in the present case, the undertaking under Article 1(1) of the Convention to suppress the use of forced or compulsory labour in all its forms within the shortest possible period precludes the Government from having recourse to legislation that it had over many years declared obsolete and not applied.⁽²⁹⁾ 

54. In conclusion, in providing for the exercise of powers to impose compulsory labour under an exception patterned after Article 10, paragraph 2(a) to (c) of the Convention, the Order of 14 May 1999 does not provide for the action called for by the Commission of Inquiry in its recommendations under paragraph 539(b) to ensure "that in actual practice, no more forced or compulsory labour be imposed by the authorities, in particular the military".

55. Furthermore, it needs to be remembered that the Order of 14 May 1999 is limited to the exercise of powers under the Village Act and the Towns Act, while the Commission on Inquiry pointed out in its recommendations that in national practice "the powers to impose compulsory labour appear to be taken for granted, without any reference to the Village Act or the Towns Act".⁽³⁰⁾  Thus, wider concrete action needs to be taken, in conformity with the Commission's recommendations, "to ensure that nobody is compelled to work against his or her will".⁽³¹⁾ 

III. Enforcement

56. In paragraph 539(c) of its recommendations⁽³²⁾  the Commission of Inquiry urged the Government to take the necessary steps to ensure:

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.

57. No action under section 374 of the Penal Code has so far been brought to the knowledge of the ILO.⁽³³⁾ 

58. In this connection, it may be worthwhile to recall the following observations of the Commission of Inquiry in paragraph 514 of its report:

In so far as some of the forced or compulsory labour exacted in violation of the Convention may be imposed in conformity with the provisions of the Village Act or the Towns Act that are themselves contrary to the Convention, the necessary amendments to those provisions of the Village Act or Towns Act may have to be brought into force before the corresponding exaction of forced or compulsory labour becomes "unlawful" in national law and punishable under article 374 of the Penal Code. However, the provisions of the Village Act and the Towns Act authorizing recourse to compulsory labour had at some stage been declared obsolete and are in practice never invoked when imposing forced or compulsory labour. Moreover, there are a number of instances of exaction of forced labour, in particular where people are directly rounded up by the military for compulsory service without a requisition of the village head or ward authorities, which even under the very wide provisions of the Village Act and the Towns Act appear unlawful in national law and should have given rise already to prosecution under article 374 of the Penal Code. The lack of enforcement in practice of article 374 of the Penal Code violates the obligations of Myanmar under Article 25 of the Convention.

59. In his address to the opening session of the 13th ASEAN Labour Ministers Meeting on 14 May 1999, Lt.-Gen. Khin Nyunt indicated that:

There have been allegations of the use of forced labour in Myanmar. If one is to believe some of the allegations found in the Western media, the picture is indeed rather bleak. We felt very strongly that these allegations were largely due to misconception and misunderstanding of the situation and the mentality of our people.

Since a sound infrastructure is essential for economic development, our Government has placed special emphasis on this sector. Hence, a sustained effort to improve the infrastructure of our economy by building roads, bridges, rail network, dams and reservoirs has been undertaken. Realizing the benefits to the communities from these projects, people have voluntarily contributed labour so that they can be completed sooner. Moreover, in Myanmar thinking, the contribution of labour not only brings immediate material benefit in the present life, but also merit for future life cycles.

Without understanding these factors, some people have made all sorts of allegations. On our part, to dispel these wrong impressions, the Government has issued instructions that only remunerated labour must be used in infrastructure projects. At the same time, with the return of peace, we are now mainly using our military personnel to undertake these public works. Therefore, the allegations of forced labour are groundless.⁽³⁴⁾ 

60. Referring to similar indications made by the Government in the past, the Commission of Inquiry recalled, in concluding its recommendations under paragraph 539 of its report, that:

... the blurring of the borderline between compulsory and voluntary labour, recurrent throughout the Government's statements ..., was all the more likely to occur in actual recruitment by local or military officials. The power to impose compulsory labour will not cease to be taken for granted unless those used to exercising it are actually brought to face criminal responsibility.

Final observation

61. Despite the Order issued by the Government of Myanmar on 14 May 1999 there is no indication that the three recommendations of the Commission of Inquiry have yet been followed:

(a) the Village Act and the Towns Act have not been amended;

(b) in actual practice forced or compulsory labour continues to be imposed in a widespread manner;

(c) no action appears to have been taken under section 374 of the Penal Code to punish those exacting forced labour.

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Appendix I

GOVERNMENT OF THE UNION OF MYANMAR
DEPARTMENT OF LABOUR
BLDG. NO. 53, FIRST FLOOR, STRAND ROAD
YANGON, MYANMAR

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REF: 15/DL(R-2)99

DATE: 12th May 1999.

To,

The Director-General
The International Labour Office
CH 1211, Geneva 22, Switzerland
Fax: (22) 798 86 85

Subject: Report of the ILO Commission of Inquiry

 

Reference:	(1)	The letter dated 18 February 1999 of the Director-General of the Department of Labour
	(2)	The letter dated 1 April 1999 of the Director-General of the International Labour Office

Dear Mr. Director-General,

I wish to acknowledge receipt of your letter dated 1 April 1999 requesting me, pursuant to the decision of the Governing Body adopted at its 274th Session, to inform you of any measures which my government might have taken on each of the recommendations set out in the report of Commission of Inquiry.

In this connection, I wish to inform you preliminarily that the practical measures envisaged to be taken on the recommendations have been submitted to the Government of the Union of Myanmar for decision and they are already in the process of being actively considered by the high authorities.

I will be most delighted to communicate to you as soon as the matter has been decided upon.

Yours sincerely,

(Signed) (Sein Myint)
Director-General
Department of Labour

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Appendix II

GOVERNMENT OF THE UNION OF MYANMAR
DEPARTMENT OF LABOUR
BLDG. No. 53, FIRST FLOOR; STRAND ROAD
YANGON, MYANMAR

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REF: 15/DL(R-2)99
DATE: 18th May 1999.

To,

The Director-General
International Labour Office
CH 1211, Geneva 22, Switzerland
Fax: (22) 798 86 85

Subject: Report of the Commission of Inquiry

Dear Mr. Director-General,

May I refer to my letter of 12 May 1999, in which I indicated that practical measures would be taken regarding the recommendations by the ILO Commission of Inquiry relating to the observance of the Forced Labour Convention 1930 (Convention No. 29).

I am happy to inform you that the Ministry of Home Affairs of the Government of the Union of Myanmar, has issued an Order dated 14 May 1999, in which the relevant authorities were directed not to exercise the powers conferred on them under the Provisions namely, Section 7 Sub-section (1) (L) and (m), and Section 9 and 9A of the Towns Act, 1907 and also Section 8 Sub-section (1) (g) (n) and (o), Section 11 (d) and Section 12 of the Village Act, 1907.

I may mention that this Order clearly stipulated that any person who fails to abide by this order shall have action taken against him under the existing law.

This Order has already been made public and has been circulated to all State Bodies, Government Ministries and all local administrative bodies and it will be published in the Myanmar National Gazette where all Laws, Procedures, Notifications, Regulations and Directives are published.

You may also be aware that the 13th ASEAN Labour Ministerial Meeting was held in Yangon, Myanmar, from 14-15 May 1999, at the conclusion of which Myanmar Government at the Press Conference made known to local and international media regarding the above action.

Yours sincerely,

(Signed) (Soe Nyunt)
Director-General

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Appendix III

Government of the Union of Myanmar
The Ministry of Home Affairs

Order No. 1/99
Yangon, the 15th, Waning of Kason 1361 ME
(14th May 1999)

Order Directing Not To Exercise Powers Under Certain Provisions of The Towns Act, 1907 and the Village Act, 1907

1. The Government of The Union of Myanmar, the Ministry of Home Affairs hereby issues this Order under the directive of the Memorandum dated 14-5-99, Letter No. 04/Na Ya Ka (U)/Ma Nya of the State Peace and Development Council.

2. Under Section 7 of the Towns Act, 1907, powers have been conferred on the Chairmen of the Ward Peace and Development Councils to enable them to execute their public duties. Among such powers, the right to requisition for personal service of the residents of the ward is provided in Sub-section (1)(l) and (m) of Section 7. It is provided in Section 9 that residents of the ward shall fulfil the duty assigned under the said power and it is provided in section 9A that on failing to fulfil such duty, action may be taken against them.

3. Similarly, under Section 8 of the Village Act, 1907 also, powers have been conferred on the Chairmen of the Village Tract Peace and Development Councils to enable them to execute their public duties. Among such powers, the right to requisition for personal service of the residents of the village tract is provided in Sub-section (1)(g), (n) and (o) of section 8. It is provided in section 11(d) that the residents of the village tract shall fulfil the duty assigned under the said power and it is provided in section 12 that on failing to fulfil such duty, action may be taken against them.

4. In order to make the Towns Act, 1907 and the Village Act, 1907 conform to the changing situation such as security, administrative, economic and social conditions within the internal domain of the State, the Ministry of Home Affairs has been scrutinizing and reviewing as to how the said Acts should be amended, inserted and deleted, in coordination with the relevant ministries, Government departments and organizations.

5. As such, this Order is hereby issued directing the Chairmen of the Ward and Village Tract Peace and Development Councils and the responsible persons of the Department of General Administration and the Myanmar Police Force not to exercise powers under these provisions relating to requisition for personal service prescribed in the above-mentioned Towns Act, 1907 and the Village Act, 1907, until and unless any further directive is issued, except for the following circumstances:

(a) requisition for personal service in work or service exacted in cases of emergency on the occurrence of disasters such as fire, flood, storm, earthquake, epidemic diseases that would endanger the existence or the well-being of the population;

(b) requisition for personal service in work or service which is of important direct interest for the community and general public and is of present or imminent necessity, and for which it has been impossible to obtain voluntary labour by offer of usual rates of wages and which will not lay too heavy a burden upon the present population.

6. Any person who fails to abide by this Order shall have action taken against him under the existing law.

(Signed) Col. Tin Hlaing
Minister
Ministry of Home Affairs

Circulation:

(1) Office of the Chairman of the State Peace and Development Council;

(2) Office of the State Peace and Development Council;

(3) Office of the Government;

(4) Supreme Court;

(5) Office of the Attorney General;

(6) Office of the Auditor General;

(7) Public Services Selection and Training Board;

(8) All Ministries;

(9) Director General, Department of General Administration (Forwarded for information and for further circulation of the copy of this Order to the State, Divisional, District and Township Administrative Officers Subordinate to him);

(10) Police Major General, Myanmar Police Force (Forwarded for information and for further circulation of the copy of this Order to the relevant departments and organizations subordinate to him);

(11) Director General, Department of Special Investigation;

(12) Director General, Prisons Department;

(13) All State and Divisional Peace and Development Councils;

(14) All District Peace and Development Councils;

(15) All Township Peace and Development Councils (Forwarded for information and for further circulation of the copy of this Order to the Chairmen of the Ward and Village Tract Peace and Development Councils Subordinate to it);

(16) Managing Director, Printing and Publishing Enterprise (with a request for publication in the Myanmar Gazette).

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1. ILO Governing Body, 274th Session (March 1999), Record of decisions (GB.274/205), para. 12.

2. Forced labour in Myanmar (Burma), Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance of the Forced Labour Convention, 1930 (No. 29). ILO Official Bulletin, Vol. LXXXI, 1998, Series B, Special Supplement. The full text of the report is also available on the ILO website at the following address: <http://www.ilo.org/public/english/20gb/docs/gb273/myanmar.htm>.

3. ibid., paras. 536 and 537.

4. ibid., para. 539.

5. ibid., para. 540.

6. Para. 470 of the Commission's report. See also paras. 237 et seq. of the report for details of these Acts.

7. See paras. 471 and 472 of the Commission's report.

8. ibid., para. 539(a), reproduced in para. 5 above.

9. Reproduced as Appendix I to the present report.

10. Reproduced as Appendix II to the present report.

11. State Peace and Development Council.

12. Para. 539(b) of the Commission's report, reproduced in para. 5 above.

13. Appendices I and II.

14. Para. (529 and para.) 539(b) of the Commission's report, reproduced in para. 5 above.

15. SPDC Orders to Villages, Set 99-B, Thaton and Pa'an Districts, Order dated 15 Dec. 1998, registered as Order T6.

16. To protect witnesses from reprisals, the ICFTU has requested the Office to take, with regard to the documents submitted (including the abovementioned forced labour orders) all necessary safety measures and precautions, identical to those taken in the course of the proceedings of the Commission of Inquiry.

17. See para. 24 above.

18. UN document E/CN.4/1999/35, 22 Jan. 1999, para. 48.

19. UN document E/CN.4/1999/35, 22 Jan. 1999, para. 44.

20. ibid., para. 45.

21. Para. 539(b) of the Commission's report, reproduced in para. 5 above.

22. Appendix II and para. 10 above.

23. Appendix III.

24. Erroneously dated 1907 in the published Order.

25. Para. 472 in fine; see also paras. 214-215.

26. ILC, 86th Session, Geneva, 1998, Report III (Part 1A), Report of the Committee of Experts on the Application of Conventions and Recommendations, p. 100.

27. Paras. 218 and 472.

28. See paras. 198-204 of the Commission's report.

29. Para. 472; see also paras. 217 and 122 et seq. of the Commission's report.

30. Para. 539(b) of the Commission's report, referring to paras. 481 and 529. See also para. 20 above.

31. ibid.

32. See para. 5 above.

33. A single case of disciplinary action was reported by a government, as reflected in para. 47 above.

34. The full text of the address was published by BBC Monitoring Asia Pacific on 17 May 1999.

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