International Labour Conference

Ninety-first Session, Geneva, 2003


Committee on the Application of Standards


[extract from]


Provisional Record 24, Part two.










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




Myanmar (ratification: 1955). A Government representative stressed that Myanmar, as a country in transition, was doing its utmost to promote the rights, interests and welfare of its workers while at the same time taking appropriate steps until the adoption of a strong and enduring State Constitution. He refuted the claim that the Government had done nothing to apply Convention No. 87 and had been using delay tactics for the past 40 years. The Revolutionary Council had assumed power in 1962 and a socialist State had been instituted by referendum in 1974 and workers had been allowed to establish organizations according to the State Constitution at the time and had operated until 1988. He stressed that the fundamental political transformations and transition from one political system to another were bound to impact developments in all sectors of the country, including labour affairs. During the socialist era, the foremost priority of the people of Myanmar had been the emergence of a State Constitution, and the creation of workers' organizations could only take place afterwards. The Government was striving to establish a modern, peaceful and developed democracy according to the aspirations of the people of Myanmar. After having restored peace and stability, the State Peace and Development Council (SPDC) was turning its efforts towards political, economic and social development in order to lay down the foundations for the emergence of a strong and enduring Constitution. Reminding the Committee that all laws arose from a country's Constitution, the Government representative stressed that this included laws that aimed at the creation of fully-fledged trade unions. Therefore, all the Government could do in the period of transition was to take interim measures and build on existing mechanisms for these associations to look after the rights and interests of workers to the extent possible under the prevailing circumstances. As evidence of the steps the Government had taken in this direction, he cited the following Workers' Welfare organizations which were allegedly operating in Myanmar, including the Myanmar Guston Molinel Garment Factory Workers' Welfare Association, the Textcamp Garment Factory Workers' Welfare Association, the Yes Garment Factory Workers' Welfare Association and the Tarshin Garment Factory Workers' Welfare Association. Professional associations cited included the Myanmar Overseas Seafarers' Association, the Myanmar Women Entrepreneurs' Association, the Myanmar Dental Surgeons' Association, the Myanmar Engineers' Association, the Myanmar ASEAN Women Friendship Association, the Myanmar Writers' and Journalists' Association and the Myanmar Construction Enterprises' Association. The Government representative claimed the organizations mentioned were forerunners of trade unions, which operated in the interest of workers and to the best of their abilities under the prevailing conditions. Taking the Myanmar Overseas Seafarers' Association as an example, he pointed out that the organization had been freely formed by the overseas seafarers, had freely elected officers on its Executive Committee and freely exercised its activities in the interests of its members. He likened it to a trade union and stated that the Government had deposited a copy of its Constitution with the ILO. He maintained this was a major step towards implementing Convention No. 87.


The Government representative stated that the existing mechanisms for the safeguarding of workers' rights were working well in Myanmar and that complaints of trade disputes had been dealt with effectively and peacefully through conciliation and negotiation. He explained that, in 2002, the Department of Labour had received 92 complaints of trade disputes from 60 factories and workplaces with a combined total of 29,054 workers, 14,202 of whom had been directly involved, and that all the cases had been settled through negotiation and conciliation processes.


Reiterating the fact that the Government was doing all in its power to progress towards implementation of the Convention, the speaker pointed out that the Government had been receiving technical assistance from the ILO in this respect, including the visit to Myanmar of Standards Department officials. The speaker stated that the Government was cooperating with the ILO in the implementation of the Forced Labour Convention (No. 29), 1930, and had been making great progress, citing the agreement, recently concluded with the ILO, on the Joint Plan of Action for the elimination of forced labour. This agreement, in the speaker's view, was a model in the field of human rights and should be applied to Convention No. 87. ILO technical assistance in this matter would make way for further positive ILO-Myanmar cooperation.


The speaker explained that the Government had consulted the ILO on how to strengthen workers' welfare associations and on other ways of advancing the matter. On 20 May 2002, the Myanmar delegation had discussed Convention No. 87 with the Director-General and other ILO staff, and since then, there had been regular contacts with the Standards Department.


In conclusion, the Government representative emphasized the importance of the role of the ILO in helping member States implement core ILO Conventions and said that it should refrain from censuring States which were genuinely attempting to comply with the Conventions. The speaker hoped that the Committee understood the position of the Myanmar Government and that discussions and cooperation with the ILO would lead to fruitful results towards implementing their obligations.


The Worker members stated that, although the Committee of Experts' observation was brief, the case of Myanmar was well known given that it had been discussed at the Conference 15 times in the past 22 years, and even before the Commission of Inquiry had been established concerning the violation of Convention No. 29 by Myanmar. On Convention No. 87, a special paragraph had been set aside on the case on eight occasions, five of which were for continued failure to apply the Convention. They pointed out that this was the only case, among many concerned with the application of Convention No. 87, which focused on the total absence of freedom of association over a prolonged period of time. These violations of freedom of association occurred in a political climate of severe repression by the military regime, of human rights and other fundamental freedoms, as the tragic events of the last two weeks had shown. Many of these violations had been brought to the attention of United Nations bodies, including the ILO, and the situation was being followed closely by the Commission on Human Rights, the UN Secretary-General, the General Assembly and the Committee on the Rights of the Child, which deplored "the pattern of gross and systematic violations of human rights in Myanmar, including extrajudicial, summary and arbitrary executions, enforced disappearances, rape, torture, inhuman treatment, denial of freedom of assembly, association, expression, religion and movement" (Commission on Human Rights resolution 2002/67, paragraph 5(a), General Assembly resolution A/RES/56/231, paragraph 4). In February 2003, the General Assembly expressed again its grave concern "at the ongoing systematic violation of the human rights, including civil, political, economic, social and cultural rights of the people of Myanmar; extra-judicial killings, renewed instances of political arrests and continuing detentions, including that of prisoners who had served their sentences; denial of freedom of assembly, association, expression and movement; wide disrespect for the rule of law" (General Assembly resolution A/RES/57/231, paragraph 3(a) and (b)).


The Worker members recalled that on 28 May 2003, the ICFTU had filed a 33-page complaint with the ILO, with over 150 pages of attachments, against the regime for violations of freedom of association. In its first section the complaint focused on the legislative framework used by the regime to suppress freedom of association and, in its second part, denounced new cases of violations which confirmed the military regime's persistent and systematic pattern of violations of the right to freedom of association. They requested the Committee of Experts to review the detailed information provided by the ICFTU for its report next year, as well as any response the Government might provide. They also pointed out that because of arbitrary and artificial restrictions of time, some Workers' delegates would refrain from intervening. In due time, the interested organizations would submit their observations to the Committee of Experts and the Government should also respond to their concerns.


The Worker members also urged the Committee of Experts, to devote special attention to the section of the ICFTU comments, which had not yet been completely reviewed by them, on new information concerning a legislative framework for the suppression of freedom of association. They reiterated that, despite the repeated statements of good intention by the Government that drafting of new legislation allowing the free and independent establishment of workers' organizations, was under way, absolutely no progress had been made.


The Worker members recalled that Mr. Maung Maung, the General Secretary of the Federation of Trade Unions of Burma (FTUB), together with other workers who had attempted to organize an independent union in a state-owned mining company in the late 1980s, had been dismissed, threatened and forced to flee the country after the military crackdown of August 1988. The FTUB was considered by the military regime to be a subversive organization and any worker linked to it was at tremendous personal risk. Nevertheless, the FTUB continued to function underground around the country, and helped to organize and expand relations with new independent trade unions in a number of diverse ethnic communities, giving rise to some of the first democratic structures in these communities. The fact that the FTUB, which was recognized as a legitimate trade union around the world, was considered to be a subversive organisation by the regime, dramatized the total absence of freedom of association in Burma. Although the Government representative claimed that the Workers' Welfare Association and the Workers' Supervisory Committees were a form of freedom of association, the Committee of Experts agreed with the Worker members that neither of these could substitute for the fundamental right to organize provided for in the Convention.


The Worker members recalled that the two FTUB representatives, who had been arrested in 1997 and convicted for high treason at secret trials, had not been seen since, and therefore requested the Government representative to provide a report on their whereabouts and well-being. They were still waiting for a response regarding Saw Mya Than, another FTUB member, whose murder, on 4 August 2002, had been reported to the ILO and raised by the ILO liaison officer before the Government Implementation Committee on 9 November 2002, to which there had been no response from the Government.


The Worker members stressed that they would consider any attack on Mr. Maung Maung in the context of the violent crackdown of the last two weeks as a threat to his well-being and requested the Committee to stress in its conclusion that such attacks were unacceptable. In conclusion, the Workers informed the Committee of the approval by the United States Senate, of the Burma Freedom and Democracy Act, in response to the ambush of Ms. Aung San Suu Kyi on 30 May 2003 and the subsequent crackdown on the National League for Democracy (NLD) countrywide. The Bill was on its way to becoming law and the Worker members called on other nations to take similar actions until the military regime in Burma released all political prisoners, provided a full account of the 30 May 2003 events, and returned to a path of political reconciliation. Only then would there be a climate for progress towards the protection of workers' and employers' rights to freely organize in accordance with Convention No. 87.


The Employer members recalled that the Committee had dealt with this case eight times in the last ten years and that the Government had claimed for eight years that it was in the process of elaborating a new Constitution and new laws, including a trade union Act. However, no factual development had been noted so far and the Government had also failed to provide such information at the present session of the Committee. The Government representative once again referred to a number of existing organizations which, as he admitted, were only surrogates to real trade unions as provided for in the Convention. There was no freedom to join and establish organizations without interference and prior authorization. Noting that no information had been submitted on the manner in which the legislative measures were undertaken, the Government was requested to submit existing draft laws to the Committee of Experts. If the Conference Committee considered the statement of the Government representative to express its willingness to take further measures, this should be noted. In response to the Government representative's referral to Convention No. 29, in respect of which the ILO had to take measures under article 33 of the ILO Constitution, the Employer members hoped that it would not be necessary to follow such a stony path with regard to Convention No. 87. However, changes in law and practice to bring it in conformity with the Convention had not yet been achieved and restrictions and interference by the State continued. The Committee should therefore urge the Government once again to take the necessary measures.


The observer of the International Confederation of Free Trade Unions (ICFTU) informed the Committee that in 1988, he was elected President of the Myanmar Gems Corporation Union and President of the All Burma Mining Union. He had participated in the All Burma Workers' Union Congress held at Htan Ta Bin high school in Rangoon on the 30 August 1988. On 18 September 1988, the military staged a coup and announced that all workers on strike should return to work and issued Order No. 6/88 which denied Freedom of Association by imposing a penalty of five years' imprisonment. The speaker declared that he returned to work with the rest of the members, but on 24 October 1988, the corporate administration called in six leaders of the union, including himself, and informed them not to go to work the following day. The speaker left the country to avoid arrest, imprisonment and torture as the Military Intelligence had been looking for him. He stressed that although independent trade unions existed in Burma, their members had been forced into exile. Furthermore, unions were denied the right to register, could not operate openly, and had to work underground. Trade union members risked reprisal, arrest and detention by the authorities if their activities were discovered. In October 1990, U Maung Ko, the secretary-general of the Port Workers' Union had been arrested and imprisoned at Insein Jail. On 9 November 1990, his family had learned of his death through the workers at the Rangoon General Hospital. The authorities claimed that he had taken his own life after confessing to his activities, but neither the confession nor the circumstances under which it had been extracted have been revealed. An FTUB eyewitness who had seen U Maung Ko's body before burial asserted that the many marks were proof of torture. The speaker also indicated that the cases of Myo Aung Thant, Khin Kyaw, Thet Naing and Myint Maung Maung, that had been discussed at the Conference Committee in 1999 and 2001, had not yet been resolved. They were still in prison for trade union activities. He also mentioned the case of Aye Aye Swe who was arrested in 1998 and sentenced to seven years in prison for trade union activities.


The speaker stressed that in Burma, any form of labour organizing was immediately repressed and labour disputes were settled through the immediate intervention by the police and the military imposing harsh criminal actions on the pretext of national security. Workers were intimidated, threatened or violently repressed. Workers were accused of being the communist tools of imperialists and terrorists. Military and police interventions usually led to violations of basic human rights, including beatings, torture, arrests and detentions with no guarantee of a fair trial. The speaker insisted that in such a climate of violence and repression and in the absence of the right to organize, forced labour could not be eliminated. He called upon the ILO to help them build independent representative trade unions to contribute to the well-being of the population of Burma.


The Government member of China encouraged the Government of Myanmar to cooperate with the ILO to comply with Convention No. 87.


The Government member of Norway, speaking on behalf of the Government members of the Nordic countries as well as of the Netherlands and Canada, expressed their continuing deep concern over the trade union situation in Myanmar and recalled that the Conference Committee had commented on the Government's failure to apply Convention No. 87 for several years. No real progress had been made in providing a legislative framework under which free and independent workers' organizations could be established. The speaker urged the Government to adopt the necessary measures to fully ensure the fundamental right to organize and to send, with its next report, copies of any proposed revisions of the Trade Union Act.


The Government member of the United States stated there was an inextricable link between the fundamental right to freedom of association and the issue of forced labour discussed during the special sitting of the Committee. The High-Level Team, which visited Myanmar in September 2001 with respect to Convention No. 29, had reported that if strong and independent workers' organizations, as required by Convention No. 87, existed in Myanmar, these could provide individuals affected by forced labour with the framework and collective support necessary to help them make the best possible use of all remedies available to defend their rights. It was thus crucial for the international community to remain focused on Myanmar's failure to apply Convention No. 87. The Government representative noted that, in response to the repeated appeals to the Government to take the necessary measures, the Committee once again heard promises regarding revised laws and a new Constitution, as well as explanations about workers' associations that are a surrogate of trade unions. Nonetheless, the fact remained that no real progress had been made. Her Government deplored the continuing lack of will to respect obligations freely undertaken and the recent events in Myanmar further demonstrated the Government's unwillingness to respect freedom of association. The Government of the United States called for the immediate release of Ms. Aung San Suu Kyi and other detained NLD members, and for the reopening of the NLD offices without delay.


The Government representative wished to clarify the circumstances of the death of Mr. Saw Mya Than. The Myanmar authorities had carried out a thorough investigation into this case. The investigation found that Saw Mya Than was from the village of Kalaikatoat in Ye Township. He did not belong to any lawful association of education workers. The Kawthoolei Education Workers' Union was an unlawful underground organization affiliated with the Karen National Union (KNU) which was the only remaining insurgent group in the country. He was not an elected headman of the village, as claimed by the FTUB. In fact he was employed by the army as a guide, not as a porter. On 4 August 2002, Saw Mya Than was accompanying an army column as a guide. When the army column reached a location about five miles from the village, a small group of KNU insurgents detonated a Claymore mine by remote control. In that incident, Saw Mya Than was killed instantly. The army column retrieved his dead body and handed it over to his family. It also assisted in organizing the funeral service for Saw Mya Than. Moreover, it gave due compensation to the members of his family. In fact, members of the bereaved family were quite satisfied with the kind assistance and sympathetic gesture extended to them by the army. It was therefore crystal clear that the allegation from the FTUB was an unfounded allegation, fabricated with political motivations.


With regard to Mr. Maung Maung, the Government representative alleged that he had once again abused the Committee. The same had happened at the meeting of this Committee on 7 June 2003. At that time he had informed the Committee that Mr. Maung Maung was a criminal, fugitive from justice and a terrorist. The speaker wished to place on record, once again, a strong protest of his delegation against the abuse of this Committee by the same person.


Turning to recent events, he stated that since the lifting of restrictions on Daw Aung San Suu Kyi on 6 May 2002, she had been allowed to travel freely through the length and breadth of the country. Between June 2002 and April 2003, Daw Aung San Suu Kyi had visited 95 townships. On 30 May 2003, she and her supporters in a long motorcade with over 100 motorcycles drove with high speed and ploughed through the crowd at a location outside Depeyin Township, resulting in injuries to many people. This led to clashes between the local populace and her supporters. Four persons were killed, and 48 persons injured. After she made a second trip to the Shwebo region after her visit to Mandalay, disturbances occurred at a location outside Depeyin Town on 30 May. He maintained that there was premeditation on the part of Daw Aung San Suu Kyi, but not on the part of the Government.


He recalled that, during the course of the present session of the Committee, he had said that Daw Aung San Suu Kyi was unhurt and that she did not have even a bruise. He indicated that Mr. Razali Ismail, Special Envoy of the United Nations Secretary-General, had said in a press interview that "I can assure you that she is well and in good spirits ... no injury on the face ... no scratch, nothing". He wished to stress that the authorities had to take necessary measures to ensure the safety of Daw Aung San Suu Kyi and other members of the NLD. These measures were temporary in nature. The Government would continue its policy of national reconciliation and its policy of transition to democracy in a systematic and step-by-step manner.


In conclusion, the Government representative stated that Myanmar's track record on the elimination of forced labour had shown sustained and significant progress. The role of the International Labour Organization should be to assist its member States in the implementation of the ILO core Conventions, and not to assume the negative role of censuring a member State which had a genuine intention to implement the core Conventions of the ILO but had to overcome certain constraints and difficulties.


The Worker members requested that the Government provide the Committee of Experts with all the legislative texts pertaining to freedom of association. Furthermore, in the light of recent events in the country, they once again pleaded with the Government for the release of Ms. Aung San Suu Kyi and to allow the reopening of all the offices of the NLD so that a dialogue of national conciliation could be taken up again. They requested that the new conclusions contain the same elements as those adopted in 2001. In response to the arguments of the Government representative that change takes time and that things cannot change overnight, they reminded the Committee that it had been making the same comments for more than 40 years regarding the failure to apply Convention No. 87 in law and in practice. Based on these observations, they requested the conclusions be included in a special paragraph of the report and that, furthermore, they reflect the continuing failure to apply the Convention.


The Employer members noted that, while there were some signs of incipient progress with regard to the application by Myanmar of Convention No. 29, which had again been discussed during a special sitting of the Committee, this was not at all the case for Convention No. 87. The Government again provided only general information and had not referred to any specific measure taken. The Employer members therefore agreed with the Worker members that a special paragraph on this case should be included in the Committee's report, making reference to the continued failure to apply the Convention.


The Committee noted the statements by the Government representative and the discussion which followed. It recalled that the Committee had discussed this serious case on many occasions in the last ten years and that its latest conclusions had been included in a special paragraph because of the continued failure of the Government to apply the Convention.


Notwithstanding, the Committee was once again obliged to note the lack of real progress towards the establishment of a legislative framework for the creation of free and independent organizations. The Committee profoundly deplored the persistence of serious discrepancies between national legislation and the provisions of the Convention which had been ratified almost 50 years ago. The Committee regretted that the information provided by the Government on the existence of workers' associations had not solved the problems raised by the Committee of Experts towards implementing the Convention.


Concerned about the total lack of progress towards implementing this Convention, the Committee strongly insisted once again that the Government urgently adopt the necessary measures and mechanisms for guaranteeing, both in law and in practice, the right of workers and employers to affiliate themselves with the organizations of their own choosing, without previous authorization, and the right for these organizations to affiliate themselves with federations, confederations and international organizations without the interference of state authorities. The Committee emphasized that respect for civil liberties was crucial for the exercise of freedom of association and therefore urged the Government to take the necessary measures so that workers and employers could exercise the rights guaranteed by the Convention in a climate of full security and in the absence of threats or fear. Furthermore, the Committee urged the Government to provide the Committee of Experts, next year, with all relevant draft legislation and existing legislation so that it could be studied, and to provide a detailed report on the concrete measures taken to ensure improved compliance with the Convention. The Committee expressed the firm hope it would be able to note significant progress next year.


The Committee decided to include its conclusions in a special paragraph in its report. It also decided to mention this case as a case of continued failure to apply the Convention.


The Government representative stated that in the light of the full cooperation and genuine good will expressed by the Government of Myanmar, the Committee should not have decided to include this case in a special paragraph. The Government representative reserved his delegation's position on the conclusions adopted, in particular on the elements concerning the political situation in the country.




[This text has been extracted from Provisional Record 24 (Part 2) of the International Labour Conference 91st session (2003) ]