Geneva, November 1996
SIXTEENTH ITEM ON THE AGENDA
1. By a letter dated 20 June 1996 addressed to the Director-General of the ILO, Messrs. E. Abou-Rizk, C. Agyei, K. Ahmed, M. Blondel, W. Brett and U. Edström, Mrs. U. Engelen-Kefer, Messrs. R. Falbr, C. Gray, S. Itoh, Y. Kara, A. Lettieri, I. Mayaki, S. Mookherjee, B.P. Mpangala and J.-C. Parrot, Ms. P. O'Donovan and Messrs. F. Ramirez Leon, Z. Rampak, I. Sahbani, A. Sanchez Madariaga, G. Sibanda, L. Sombes, L. Trotman and T. Wojcik, Workers' delegates from Lebanon, Ghana, Pakistan, France, the United Kingdom, Sweden, Germany, the Czech Republic, the United States, Japan, Israel, Italy, Niger, India, Tanzania, Canada, Ireland, Venezuela, Malaysia, Tunisia, Mexico, Zimbabwe, Cameroon, Barbados and Poland, respectively, presented a complaint under article 26 of the Constitution against the Government of Myanmar concerning non-observance of the Forced Labour Convention, 1930 (No. 29). The text of this communication is appended. A supplementary communication was addressed to the Director-General of the ILO in the name of the complainants by a letter dated 31 October 1996. The text of this supplementary communication has been submitted to the Officers of the Governing Body and is available to members of the Governing Body.
2. Article 26 of the Constitution provides as follows:
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 articles 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.
3. Convention No. 29 was ratified by Burma (now Myanmar) on 4 March 1955 and has therefore been in force for that country since 4 March 1956. Messrs. E. Abou-Rizk, C. Agyei, K. Ahmed, M. Blondel, W. Brett and U. Edström, Mrs. U. Engelen-Kefer, Messrs. R. Falbr, C. Gray, S. Itoh, Y. Kara, A. Lettieri, I. Mayaki, S. Mookherjee, B.P. Mpangala and J.-C. Parrot, Ms. P. O'Donovan and Messrs. F. Ramirez Leon, Z. Rampak, I. Sahbani, A. Sanchez Madariaga, G. Sibanda, L. Sombes, L. Trotman and T. Wojcik were Workers' delegates of their countries to the 83rd Session of the Conference on the date of filing the complaint. They accordingly had the right to file a complaint, under article 26, paragraph 4, of the Constitution, if they were not satisfied that Myanmar was securing the effective observance of this Convention.
4. The Workers' delegates concerned have requested that their complaint be referred to a Commission of Inquiry in accordance with article 26, paragraph 2, of the Constitution. It is for the Governing Body to decide on this request.
5. 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.
6. The Officers therefore recommend that the Governing Body take the following decisions at its present session:
(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 shall 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 intends to continue its discussion of this case at its 268th Session, which will take place in Geneva in March 1997.
7. The Officers envisage that, in the event of a Commission of Inquiry being appointed, the members of the Commission would be designated 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, and would undertake by a solemn declaration to carry out their tasks and exercise their powers as members of the Commission "honourably, faithfully, impartially and conscientiously". A solemn declaration in these terms would correspond to that made by judges of the International Court of Justice. The Officers will make proposals concerning other arrangements at the appropriate stage.
Geneva, 19 November 1996.
Point for decision: Paragraph 6.
Mr. M. Hansenne
83rd Session of the
International Labour Conference
Geneva, June 20, 1996
Dear Mr. Hansenne,
Article 26 complaint against the Government of Myanmar
In the name of the Workers' delegates to the Conference referred to hereunder I have the honour to present a complaint under article 26 of the Constitution against the Government of Myanmar for non-observance of Convention No. 29 on Forced Labour (1930) which it ratified in 1955.
Myanmar's gross violations of the Convention 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 against the Government of Myanmar for its failure to ensure effective observance of Convention 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.
In these circumstances, the Workers' delegates named attached herewith present a complaint under article 26 of the Constitution against the Government of Myanmar for non-observance of Convention 29. In so doing, they call on the Governing Body to appoint a Commission of Inquiry to consider the complaint and reserve the right to submit further information to.
William Brett,Workers' delegate, United Kingdom.