C. App./D.5(Add.)

92nd Session, Geneva, June 2004


Committee on the Application of Standards






Special sitting to examine developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29)


                            1.    In the framework of the conclusions of the Governing Body at its 289th Session (March 2004), the Officers of the Governing Body have considered the latest developments in the situation and found that they were not sufficiently convincing to proceed with the implementation of the Plan of Action at this time. The letter sent by the Director-General to the Minister for Labour of Myanmar in this regard on 2 June is appended.

                            2.    The following is a concise summary of the contents of the judgement of the Myanmar Supreme Court. The full text can be made available by the Office. The judgement on the appeal of the three persons convicted of high treason contains the arguments of the defence, the prosecution and the findings of the court.

(a)   The Supreme Court reviewed the case following an appeal by the convicted persons.

(b)   The defence argued for the acquittal of all nine persons in the case (including the three with an ILO connection, Shwe Mahn, Min Kyi and Aye Myint). In the case of Shwe Mahn, it was argued that the only illegal item seized from him was a satellite phone. No evidence was presented during the original trial to support the finding that he had used this phone to contact an exiled opposition group (the Federation of Trade Unions of Burma (FTUB)). Although Shwe Mahn was arrested along with some of the other defendants in an apartment where explosive devices were found, these devices were not his property. There was therefore no grounds for high treason. In the case of Min Kyi, the only evidence presented was possession of certain documents and no evidence was presented which would support the charge that he was transmitting false information about the Government. In the case of Aye Myint, while he was a close friend of Min Kyi, there was no evidence that he had any connection with the other defendants, and no evidence that he collaborated with Min Kyi to transmit false information to exiled opposition groups.

(c)   The prosecution (Deputy Director of the Attorney-General’s Office) argued that Shwe Mahn and Min Kyi had contact with one of the other defendants and that the three persons had had direct contact with Maung Maung and one other member of FTUB in exile and sent false anti-state information which made them responsible for anti-state activities. Maung Maung was a fugitive from justice himself charged with high treason in absentia and a hard-core supporter of the parallel exile government, the NCGUB. The three persons had had contacts with anti-state opposition groups and abetted anti-state activists by collecting and sending rumours amounting to the commission of an offence under section 123 of the Penal Code (encouraging, harbouring or comforting persons guilty of high treason).

(d)   After hearing the arguments of both parties and studying the proceedings of the original Court, the Supreme Court found that Shwe Mahn had contact with one of the other defendants who had been found with explosives. A satellite phone was found in Shwe Mahn’s house which he received from FTUB. He had previously served two years in prison in 1990 under the Unlawful Associations Act. It was therefore not appropriate to alter his conviction to section 123, and the original conviction under section 122(1) (high treason) was upheld. In the case of Min Kyi, the court found that he knew Shwe Mahn and Aye Myint and that in collaboration with Aye Myint he sent false accusations against the State based on rumours to illegal exiled groups through Shwe Mahn. The three persons had connections with one another and with one of the defendants implicated in the bomb plot. However, there was no evidence that Min Kyi and Aye Myint were involved in the bomb plot itself. Nevertheless, they knowingly abetted Shwe Mahn in committing high treason and were therefore guilty under section 123.

(e)   The court commuted the sentence of Shwe Mahn from death to transportation for life (now equivalent to life imprisonment) and of Min Kyi and Aye Myint from death to three years’ imprisonment. The detention period was to be deducted from the prison terms.


Letter dated 2 June 2004 from the Director-General
to the
Myanmar Minister for Labour

Dear Minister,

In accordance with the conclusions adopted by the Governing Body at its last session, the Officers of the Governing Body have considered the situation on the basis of an examination by the Office of recent developments, including the judgement of the Supreme Court. These developments were, however, not found sufficiently convincing to proceed with the implementation of the Plan of Action at this time.

It is my duty to convey the serious concern of the Office about certain aspects of the judgement. Firstly, it raises obvious freedom of association issues which presumably will be pursued in accordance with relevant ILO procedures. The other matter which the new judgement raises directly concerns the prospects for implementing the Plan of Action and indeed the very presence of the ILO in the country. This question is whether contacts with the ILO of whatever nature and form could have “judicial consequences” in Myanmar, to use the wording in the Governing Body’s conclusions. Clear assurances to the contrary had been given on behalf of the authorities by yourself to the informal Facilitator and the Liaison Officer a.i. in Yangon. They have been publicly confirmed by your Ambassador and acknowledged by the Governing Body, which based its conclusions on this affirmation. I was therefore troubled to see that the new judgement failed to acknowledge that there had been an error in law on this point in the previous judgement. Moreover, the Attorney-General’s representative failed to raise it in her submission to the court.

It is, of course, vital that legal and judicial clarity be brought on that point, in addition to the fact that careful consideration should be given to the various recommendations of the informal Facilitator. As you know, the International Labour Conference is now in session and the relevant committee will be dealing with the matter on the morning of 5 June. This is why I feel obliged to draw this matter to your serious attention for urgent action.


Yours sincerely,


(Signed)    Juan Somavia.