Report of the Commission of Inquiry

International Labour Organization

Organisation internationale du Travail

Organización Internacional de Trabajo

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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 by Myanmar of the

Forced Labour Convention, 1930 (No. 29)

Geneva, 2 July 1998

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Contents

Part I. Establishment of the Commission

1. Filing of the complaint and appointment of the Commission

(1) Filing of the complaint

(2) Provisions of the Constitution of the International Labour

Organization relating to complaints concerning non-observance of

ratified Conventions

(3) Summary of the measures taken by the Governing Body of the

International Labour Office following the filing of the complaint and

establishment of the Commission

Part II. Procedure followed by the Commission

2. First Session of the Commission

(1) Solemn declaration made by the members of the Commission

(2) Adoption of the procedure to be followed by the Commission

(3) Communication of additional information

(4) Measures adopted with a view to the Second Session and the

subsequent work of the Commission

3. Communications received by the Commission following its First Session

(1) Communications received from the parties

(a) Communications from the complainants

(b) Communications from the Government of Myanmar

(2) Communications received from other sources

(a) Communications from member States under article 27 of the ILO

Constitution

(b) Communications from intergovernmental organizations

(c) Communications from non-governmental organizations

(d) Communications from companies mentioned in the complaint

4. Second Session of the Commission

(1) Hearing of witnesses

(2) Communications received by the Commission following its Second

Session

(a) Communication from the Government of Myanmar

(b) Communications from non-governmental organizations

(c) Communications from a company named in the complaint

5. Visit by the Commission to the region

(1) Procedure followed by the Commission

(2) Persons and witnesses interviewed

(a) India

(b) Bangladesh

(c) Thailand

6. Third Session of the Commission

Part III. Allegations by the parties and historical background of the case

7. Summary of the complaint and the Government's observations

(1) Factual allegations submitted by the complainants

(2) Legal conclusions submitted by the complainants

(3) The Government's observations

(a) Public purposes or public sector

(i) Portering

(ii) Construction of development and infrastructure projects

by the Government

(iii) Hotel industries in Myanmar

(b) Private benefit or private sector

(i) Construction of the Yadana natural gas pipeline

(c) The law

(d) Conclusion

8. Historical background

A. Earlier reports and statements by the Government of Burma/Myanmar

on the application of the Forced Labour Convention, 1930 (No. 29),

comments and representation by industrial organizations, and

observations, findings and requests by ILO supervisory bodies

(1) Reports under article 22 of the ILO Constitution and

statements to the International Labour Conference (ILC) presented

by the Government, 1960 to 1992, and corresponding comments

(2) 1993 representation under article 24 of the ILO Constitution

(a) Allegations made by the complainant organization

(b) The Government's observations as to the facts

(c) The Government's observations concerning the Convention

(d) The Committee's conclusions and recommendations,

approved by the Governing Body of the ILO

(3) Subsequent developments up to the lodging of the complaint

under article of the ILO Constitution (June 1996)

B. Examination by United Nations bodies of the human rights situation

in Myanmar (particularly with respect to forced labour)

(1) General Assembly

(2) Commission on Human Rights and Special Rapporteurs on the

situation of human rights in Myanmar

(3) Secretary-General

(4) Other United Nations bodies

Part IV. Examination of the case by the Commission

9. Context of general international law and requirements of the Forced

Labour Convention, 1930 (No. 29)

A. General international law, including slavery, forced labour and

other slavery-like practices

B. Requirements of the Forced Labour Convention, 1930 (No. 29)

(1) Measures called for under Articles 1(1) and 25 of the

Convention

(2) Definition of forced or compulsory labour and scope of

exceptions

(a) Compulsory military service

(b) Normal civic obligations

(c) Prison labour

(d) Emergencies

(e) Minor communal service

(3) Present status of Article 1, paragraph 2, and Articles 4 et

seq. of the Convention

10. Brief description of Myanmar

(1) General presentation

(2) Historical background

(3) Administrative structure

(4) Opposition forces

11. Legislation of Myanmar relevant to the case

(1) Requisition of labour under the Village Act and Towns Act and

subsequent orders and directives

(2) Restrictions on the freedom of movement and citizenship

(3) Compulsory military service and forced conscription

(4) Sanctions for illegally imposing forced or compulsory labour

12. Findings of the Commission concerning the facts

A. Admissibility and probative value of testimonial evidence and

documentary material

B. General pattern of conduct by Myanmar authorities

C. Thematic analysis of the forms of labour and services requisitioned

by certain authorities

(1) Portering

(a) Documentary material

(b) Oral testimony

(2) Military camp work

(a) Documentary material

(b) Oral testimony

(3) Other work in support of the military

(a) Documentary material

(b) Oral testimony

(4) Forced recruitment

(a) Documentary material

(b) Oral testimony

(5) Work on agriculture, logging, and other production projects

(a) Information provided to the Commission

(b) Oral testimony

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

(a) Documentary material

(b) Oral testimony

(7) Other infrastructure work

(a) Documentary material

(b) Oral testimony

(8) General work

(a) Nature and condition of work

(b) Specific examples from documentary material and oral

testimony

13. Findings as to compliance with the Convention

A. National laws and statutory or administrative standard-setting

instruments, considered in the light of the Convention

(1) Provisions of the Village Act and the Towns Act and

subsequent orders and directives dealing with the requisition of

labour

(a) Applicability of the definition of forced labour

(b) Non-applicability of exceptions defined in Article 2(2)

of the Convention

(c) Expiration of the transitional period

(d) Role of secret directives and payment of wages

(2) Legislation on citizenship and other instruments bearing on

the freedom of movement

(3) Legislation on compulsory military service

(4) Sanctions for illegally imposing forced or compulsory labour

B. National practice considered in the light of the Convention

(1) Requisition of labour

(2) Requisition of labour for various purposes, considered in the

light of the exceptions in Article 2(2)(a), (b), (d) and (e) of

the Convention

(a) Portering

(b) Military camp work and other work in support of the

military

(c) Forced conscription

(d) Work on agriculture, logging and other production

projects

(e) Construction and maintenance of roads, railways and

bridges

(f) Other infrastructure work

(g) General work

(3) Requisition of labour, considered in the light of the

prohibitions in Article 4 et seq. of the Convention

(a) Residual relevance of Article 4 et seq. of the

Convention

(b) Violation of specific prohibitions

(i) Imposition of forced or compulsory labour for

private benefit

(ii) Exaction of forced or compulsory labour from

women, children, elderly people and disabled persons

(iii) Denial of remuneration and compensation

(iv) Compulsory cultivation

(4) Punishment of the illegal exaction of forced or compulsory

labour

Part V. Conclusions and recommendations

14. Conclusions and recommendations

(1) Preliminary questions

(2) Terms of reference of the Commission

(3) Conclusions on the substance of the case

(4) Recommendations

(5) Concluding observations

Appendices

I. Supplementary evidence submitted by the complainants in October 1996

II. Observation of the Myanmar Government on the initial complaint and

supplementary evidence made by 25 Worker delegates to the 83rd Session

of the International Labour Conference under article 26 of the ILO

Constitution

III. Rules for the hearing of witnesses

IV. List of documents received by the Commission following its First

Session

V. List of documents received by the Commission following its Second

Session

VI. List of documents received in the course of the hearings

VII. Summaries of testimony

VIII.List of documents received in the course of the visit to the region

IX. Maps of Myanmar

X. Names, foreign terms and acronyms

XI. Samples of orders received by the Commission

XII. Order by the Chairman of the State Law and Order Restoration Council

(SLORC) on the subject of "Prohibiting unpaid labour contributions in

national development projects" dated 2 June 1995

XIII.The Forced Labour Convention, 1930 (No. 29)

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Part I

Establishment of the Commission

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1. Filing of the complaint and appointment of the Commission

(1) Filing of the complaint

1. By a letter dated 20 June 1996 addressed to the Director-General of the

ILO, 25 Workers' delegates to the 83rd Session of the International Labour

Conference (June 1996)(1) presented a complaint under article 26 of the

Constitution against the Government of Myanmar for non-observance of the

Forced Labour Convention, 1930 (No. 29), which it ratified on 4 March 1955

and which came into force for Myanmar on 4 March 1956. The complaint

stated, in particular, that:

Myanmar's gross violations of the Convention [No. 29] have been

criticized by the ILO's supervisory bodies for 30 years. In 1995, and

again in 1996, they have been the subject of special paragraphs in the

reports of the Committee on the Application of Conventions and

Recommendations, and this year, the Government has also been singled

out by the Committee for its "continued failure to implement" the

Convention.

In addition, in November 1994, the Governing Body adopted the report

of the Committee it had established to examine the representation made

by the International Confederation of Free Trade Unions [ICFTU]

against the Government of Myanmar for its failure to ensure effective

observance of Convention No. 29.

The Government has demonstrated its unwillingness to act upon the

repeated calls addressed to it by the ILO's supervisory bodies to

abolish and cancel legislation which allows for the use of forced

labour and to ensure that forced labour is eliminated in practice. In

these circumstances, the Committee on Applications has again expressed

deep concern at the systematic recourse to forced labour in Myanmar.

Despite its protestations that the powers available under the

offending legislation, the Village Act (1908) and the Towns Act

(1907), have fallen into disuse since 1967 and that these laws are

currently under review with a view to their repeal, the Government has

failed conspicuously to provide the information requested of it

concerning concrete action for legislative change.

Indeed, it is clear that the practice of forced labour is becoming

more widespread and that the authorities in Myanmar are directly

responsible for its increasing use, and actively involved in its

exploitation.

The ICFTU representation presented under article 24 of the

Constitution in January 1993 addressed the particular case of the

forced recruitment and abuse of porters by the military which was, at

that time, the primary cause of concern.

Since then, however, forced labour is being used systematically, on an

ever larger scale, and in an increasing number of areas of activity.

Large numbers of forced labourers are now working on railway, road,

construction, and other infrastructure projects, many of which are

related to the Government's efforts to promote tourism in Myanmar. In

addition the military is engaged in the confiscation of land from

villagers who are then forced to cultivate it to the benefit of the

military appropriators.

The current situation is that the Government of Myanmar, far from

acting to end the practice of forced labour, is engaged actively in

its promotion, so that it is today an endemic abuse affecting hundreds

of thousands of workers who are subjected to the most extreme forms of

exploitation, which all too frequently leads to loss of life.

2. Supplementary evidence was submitted to the ILO in the name of the

complainants by a letter dated 31 October 1996 and is appended to the

present report.(2)

(2) Provisions of the Constitution of the

International Labour Organization relating

to complaints concerning non-observance

of ratified Conventions

3. The procedure under which the Workers' delegates filed their complaint

against the Government of Myanmar is set out in articles 26 to 29 and 31 to

34 of the ILO Constitution, which read as follows:

Article 26

1. Any of the Members shall have the right to file a complaint with

the International Labour Office if it is not satisfied that any other

Member is securing the effective observance of any Convention which

both have ratified in accordance with the foregoing articles.

2. The Governing Body may, if it thinks fit, before referring such a

complaint to a Commission of Inquiry, as hereinafter provided for,

communicate with the government in question in the manner described in

article 24.

3. If the Governing Body does not think it necessary to communicate

the complaint to the government in question, or if, when it has made

such communication, no statement in reply has been received within a

reasonable time which the Governing Body considers to be satisfactory,

the Governing Body may appoint a Commission of Inquiry to consider the

complaint and to report thereon.

4. The Governing Body may adopt the same procedure either of its own

motion or on receipt of a complaint from a delegate to the Conference.

5. When any matter arising out of article 25 or 26 is being considered

by the Governing Body, the government in question shall, if not

already represented thereon, be entitled to send a representative to

take part in the proceedings of the Governing Body while the matter is

under consideration. Adequate notice of the date on which the matter

will be considered shall be given to the government in question.

Article 27

The Members agree that, in the event of the reference of a complaint

to a Commission of Inquiry under article 26, they will each, whether

directly concerned in the complaint or not, place at the disposal of

the Commission all the information in their possession which bears

upon the subject-matter of the complaint.

Article 28

When the Commission of Inquiry has fully considered the complaint, it

shall prepare a report embodying its findings on all questions of fact

relevant to determining the issue between the parties and containing

such recommendations as it may think proper as to the steps which

should be taken to meet the complaint and the time within which they

should be taken.

Article 29

1. The Director-General of the International Labour Office shall

communicate the report of the Commission of Inquiry to the Governing

Body and to each of the governments concerned in the complaint, and

shall cause it to be published.

2. Each of these governments shall within three months inform the

Director-General of the International Labour Office whether or not it

accepts the recommendations contained in the report of the Commission;

and if not, whether it proposes to refer the complaint to the

International Court of Justice.

Article 31

The decision of the International Court of Justice in regard to a

complaint or matter which has been referred to it in pursuance of

article 29 shall be final.

Article 32

The International Court of Justice may affirm, vary or reverse any of

the findings or recommendations of the Commission of Inquiry, if any.

Article 33

In the event of any Member failing to carry out within the time

specified the recommendations, if any, contained in the report of the

Commission of Inquiry, or in the decision of the International Court

of Justice, as the case may be, the Governing Body may recommend to

the Conference such action as it may deem wise and expedient to secure

compliance therewith.

Article 34

The defaulting government may at any time inform the Governing Body

that it has taken the steps necessary to comply with the

recommendations of the Commission of Inquiry or with those in the

decision of the International Court of Justice, as the case may be,

and may request it to constitute a Commission of Inquiry to verify its

contention. In this case the provisions of articles 27, 28, 29, 31 and

32 shall apply, and if the report of the Commission of Inquiry or the

decision of the International Court of Justice is in favour of the

defaulting government, the Governing Body shall forthwith recommend

the discontinuance of any action taken in pursuance of article 33.

(3) Summary of the measures taken by the

Governing Body of the International Labour

Office following the filing of the complaint

and establishment of the Commission

4. At its 267th Session (November 1996), the Governing Body had before it a

report by its Officers (GB.267/16/2) concerning the subject of the

complaint. The report recalled, inter alia, the dates of ratification and

entering into force of the Forced Labour Convention, 1930 (No. 29)

(hereinafter "Convention No. 29") for Myanmar. It also pointed out that the

25 complainants were, on the date of filing the complaint, Workers'

delegates of their countries to the 83rd Session of the International

Labour Conference. Accordingly, they had the right to file a complaint

under article 26, paragraph 4, of the Constitution, if they were not

satisfied that the Government of Myanmar was securing the effective

observance of Convention No. 29. In addition, the report indicated the

following:

No discussion on the merits of the complaint is admissible at the

present stage. It would indeed be inconsistent with the judicial

nature of the procedure provided for in article 26 and the following

articles of the Constitution that there should be any discussion in

the Governing Body on the merits of a complaint until the Governing

Body has before it the contentions of the government against which the

complaint is filed, together with an objective evaluation of these

contentions by an impartial body. Nor would such discussion be

appropriate while a proposal to refer the complaint to a Commission of

Inquiry is pending before the Governing Body or while the complaint is

sub judice before a Commission of Inquiry. If there is to be a

Commission of Inquiry -- which it is for the Governing Body to decide

under article 26, paragraph 4, of the Constitution -- it is when the

Commission of Inquiry has reported on the merits of the complaint that

the Governing Body may be called upon to take action in the matter.

5. At the same session, the Governing Body took the following decisions:

(a) The Government of Myanmar should be requested by the Director-General

to communicate its observations on the complaint so as to reach him not

later than 31 January 1997.

(b) In accordance with article 26, paragraph 5, of the Constitution, the

Governing Body should invite the Government of Myanmar to send a

representative to take part in the proceedings of the Governing Body

concerning this matter at its future sessions. When so inviting the

Government of Myanmar, the Director-General should inform it that the

Governing Body intended to continue its discussion of this case at its

268th Session, which was to take place in Geneva in March 1997.

6. In a letter dated 23 December 1996, the Director-General informed the

Government of Myanmar of the decisions mentioned above.

7. By a letter dated 5 February 1997, the Permanent Mission of the Union of

Myanmar in Geneva transmitted the observations of the Government of Myanmar

on the complaint and the further supplementary evidence submitted. The

document (without its confidential annexes) is appended to the present

report (Appendix II).

8. At its 268th Session (March 1997), the Governing Body had before it

another report of its Officers (GB.268/15/1) which noted that:

Contradictions exist between the facts presented in the allegations

and those set out in the observations of the Government of Myanmar. It

would, however, not be appropriate to enter into a discussion of the

substance if it is envisaged to set up a Commission of Inquiry under

article 26, paragraph 4, of the Constitution in order to make an

objective assessment of the situation. As was pointed out in the

report of the Officers of the Governing Body at the latter's 267th

Session, it would be incompatible with the judicial nature of the

procedure thus instituted to open up such a discussion before the

Commission of Inquiry submits its light of the

foregoing, the Governing Body decided that the whole matter should be

referred, without further discussion, to a Commission of Inquiry set

up in accordance with article 26 of the Constitution. The Governing

Body recalled that the members of the Commission would be nominated in

accordance with the same criteria, and would serve in the same

conditions, as the members of commissions previously appointed under

article 26 of the Constitution. They would serve as individuals in

their personal capacity, would be chosen for their impartiality,

integrity and standing. They would undertake by solemn declaration,

similar to that made by judges of the International Court of Justice,

to carry out their tasks and exercise their powers as members of the

Commission "honourably, faithfully, impartially and conscientiously".

The Governing Body added that the Commission was to establish its own

procedure in accordance with the provisions of the Constitution.

9. At the same session, the Governing Body decided that the Commission be

composed as follows, as proposed by the Director-General (GB.268/14/8):

Chairperson: The Right Honourable Sir William DOUGLAS, PC, KCMG (Barbados),

former Ambassador; former Chief Justice of Barbados; former Chairman,

Commonwealth Caribbean Council of Legal Education; former Chairman,

Inter-American Juridical Committee; former Judge of the High Court of

Jamaica; Chairperson of the Committee of Experts on the Application of

Conventions and Recommendations.

Members: Mr. Prafullachandra Natvarlal BHAGWATI (India), former Chief

Justice of India; former Chief Justice of the High Court of Gujarat; former

Chairman, Legal Aid Committee and Judicial Reforms Committee, Government of

Gujarat; former Chairman, Committee on Juridicare, Government of India;

former Chairman of the Committee appointed by the Government of India for

implementing legal aid schemes in the country; member of the International

Committee on Human Rights of the International Law Association; member of

the Editorial Committee of Reports of the Commonwealth; Chairman of the

National Committee for Social and Economic Welfare of the Government of

India; Ombudsman for the national newspaper Times of India; Chairman of the

Advisory Board of the Centre for Independence of Judges and Lawyers,

Geneva; Vice-President of El Taller; Chairman of the Panel for Social Audit

of Telecom and Postal Services in India; member of the United Nations Human

Rights Committee; member of the Committee of Experts on the Application of

Conventions and Recommendations.

Ms. Robyn A. LAYTON, QC (Australia), Barrister-at-Law; Director, National

Rail Corporation; former Commissioner on Health Insurance Commission;

former Chairperson of the Australian Health Ethics Committee of the

National Health and Medical Research Council; former Honorary Solicitor for

the South Australian Council for Civil Liberties; former Solicitor for the

Central Aboriginal Land Council; former Chairman of the South Australian

Sex Discrimination Board; former Judge and Deputy President of the South

Australian Industrial Court and Commission; former Deputy President of the

Federal Administrative Appeals Tribunal; member of the Committee of Experts

on the Application of Conventions and Recommendations.

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