2008 Annual Survey of violations of trade union rights - Burma
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Burma, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca9fc.html [accessed 2 December 2015]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Capital: Naypyidaw (Pyinmana)
ILO Core Conventions Ratified: 29 – 87
A major citizens uprising in September against the State Peace and Development Council (SPDC) military government was led by Buddhist monks and supported by workers, students and citizen activists. Popularly known as the "Saffron Revolution", the movement was crushed by military force on September 26-27, with hundreds injured and killed, and thousands arrested. Harsh repression against all forms of trade union activity remained in place, and the ITUC associated FTUB was still considered an illegal organization.
Trade union rights in law
Repressive anti-union legislation still on the books: It is difficult to have a clear idea of the legal system in force. Burma's legislation is a combination of old British common law that dates back to English colonial rule, as well as other laws remaining from the period before the present military regime took over power, and more recent legislation in the form of military decrees and orders issued by the military junta. Any legal institutions still existing in Burma can be overruled by military decrees or by the action of any powerful official.
The 1926 Trade Union Act, which has been the subject of comment by the ILO for many years, sets an excessively high threshold required to establish a trade union (50 per cent of workers must belong for the union to be legally recognised). In 1964, the Law Defining the Fundamental Rights and Responsibilities of the People's Workers was adopted. The 1926 Trade Union Act remained in force in so far as it was compatible with the 1964 Law. For many years, the ILO has sought, without success, to obtain clarification from the government on the extent to which the 1964 Law had repealed the Trade Union Act.
In a communication to the ILO dated 23 September 2004, the SPDC claims that since the 1974 Constitution was suspended, it is not possible to legally establish a trade union in Burma that conforms to the requirements of ILO Convention no. 87. However, the SPDC has no difficulties in enforcing military decrees and orders that impose severe legal limitations on this right.
Single trade union system: The 1964 Law establishes a compulsory system for the organisation and representation of workers, which is contrary to ILO standards. The 1964 Law was amended in 1976. In its 1977 comments, the ILO noted, however, that the Law as amended still " ... imposes a single trade union system contrary to Article 2 of the Convention [No. 87], under which workers have the right to form organisations of their own choosing". That situation remains unchanged.
Other restrictions are imposed under the 1929 Trade Disputes Act. This Act, amended in 1966, appears to define the means of resolving industrial disputes. A number of provisions are not in conformity with freedom of association. These concern, for instance, the power of the president of the Union of Burma to refer trade disputes to Courts of Inquiry or to Industrial Courts, the definition of public utilities, the definition of a trade dispute and that of a strike, as well as the circumstances under which strikes can be held and the criminal sanctions facing workers who violate these provisions.
Military orders and decrees further limit freedom of association: One such example is Order 2/88 on the Organisation for Building Law and Order in the State, issued on 18 September 1988 by the military government. It prohibits any activity by five persons or more, such as "gathering, walking or marching in procession ... regardless of whether the act is with the intention of creating disturbances or of committing a crime or not". It furthers bans the opening of "strike centres regardless of whether or not the intent is to create disturbances or to commit crime". It adds that, "No one is permitted to block roads or to demonstrate en masse" or "interfere or obstruct people carrying out security duties". Order 2/88 is further strengthened by the 1908 Unlawful Association Act which, under its Section 17.1, provides that "whoever is a member of an unlawful association, or takes part in meetings of or receives or solicits contributions for an association ... shall be punished with imprisonment of not less than two years and not more than three years".
The 1988 Order 6/88 known as the Law on the Formation of Associations and Organisations states that all "organisations shall apply for permission to exist to the Ministry of Home and Religious Affairs". The definition of "organisation" in the Order is extremely detailed and sweeping and includes "an association, society, union, party, committee, federation, group of associations, front, club and similar organisation that is formed with a group of people for an objective or a programme either with or without a particular name". There is no doubt that Order 6/88 applies to workers' and employers' organisations. This is a blatant violation of ILO Convention 87. Penalties provided in the Order for punishing violations are particularly harsh and may entail imprisonment of up to five years.
In recent recommendations to the SPDC, the ILO Committee on Freedom of Association summed up the situation by noting that " ... currently there is no legislation that affords a legal basis to the respect for, and realisation of, freedom of association in Myanmar ... " and calling on the SPDC to develop such legislation, while also immediately abolishing Orders 2/88 and 6/88.
Unclear constitutional framework: The SPDC has unilaterally set out "Fundamental Principles" for a new constitution being drafted at a National Convention composed of hand-picked delegates that excludes members of the National League for Democracy (NLD) elected in 1990. The National Convention drafting process has been widely condemned by exiled labour unions, including the Federation of Trade Unions – Burma (FTUB). Among the Principles set out is "The State shall enact necessary laws to protect the rights of workers", but no further details are provided on what protections may be extended. At year's end, the draft Constitution still was not completed.
Trade union rights in practice and Violations in 2007
No trade unions allowed – FTUB considered an illegal organisation: There is a complete lack of legally registered workers' organisations in Burma. Any workers' organisation in Burma has to function underground, and its members face constant threat of repression and reprisal, including detention, torture and criminal prosecution.
The Federation of Trade Unions-Burma (FTUB) is an associated organisation of the ITUC which has been forced to operate clandestinely since its inception in 1991. It maintains structures both inside and outside the country including underground unions in key industrial sectors in Burma proper, and it operates in all the major cities of the country. It actively collects evidence of violations of workers' rights and monitors the denial of collective bargaining rights in industrial sectors as well as evidence of forced labour, which it communicates to the ILO and to the international labour movement. FTUB members caught doing so are accused of treason and other offences, and have been sentenced to life imprisonment, and in some cases, incurred the death penalty.
On 28 August 2005, the SPDC Ministry of Home Affairs issued Notification No. 3/2005, which officially declared the "FTUB, its members, and other related groups and individuals" as a threat to Burma and classified the FTUB as an unlawful association under section 15 (2) of the Unlawful Associations Act.
The secretary general of the FTUB, U Maung Maung, is under constant public attack from the SPDC regime, which continually makes baseless accusations that he is leading a terrorist organisation. On 12 April 2006, the SPDC's Ministry of Home Affairs issued order 1/2006 in which it formally classified the FTUB as a terrorist organisation.
A typical barrage of accusations by the SPDC was seen on 9 April 2006, when the FTUB was accused by Army Brig. Gen. Kyaw Hsan, the Minister for Information, of "masterminding terrorist attacks in the name of labour affairs" and deceiving the ILO to launch a "political attack" against the SPDC. The accusations lack any credibility whatsoever.
During 2007, SPDC officials continued to publicly refer to the FTUB as an illegal organisation, including in their written representation to the ILO on 16 October 2007 concerning ILO CFA case no. 2591.
More than a dozen FTUB leaders and activists serving long prison sentences: FTUB Central Executive Committee member Myo Aung Thant has now been in jail for eleven years and counting. Previous issues of this Survey have reported in detail about the imprisonment and sentencing of FTUB CEC member U Myo Aung Thant, who was arrested in June 1997. He was sentenced to 20 years for "high treason" for maintaining contacts with the FTUB. He is still detained at Myitkyina Prison in Kachin State, which has the coldest climate and is located in one of the most remote parts of the country.
In June and July 2005, the SPDC uncovered an underground network of ten FTUB organisers in the Pegu area who were providing support and education to workers and serving as a networking and information link to FTUB structures abroad. Seven men and three women were sentenced to terms ranging from three to 25 years (see details in 2006 issue of the Survey). At the end of 2007, all these FTUB members were still being detained in Insein prison.
In March 2006, five underground democracy and labour activists were arrested for a variety of offences connected to efforts to provide information to the FTUB and other organisations considered as illegal by the regime, and to organise peaceful anti-SPDC demonstrations. All five were sentenced to long prison terms, and all were still serving those terms in Insein Prison at the end of the year – including U Aung Thein (76 years old, sentenced to 20 years – suffering from hypertension and heart disease), Khin Maung Win (sentenced to 17 years), Ma Khin Mar Soe (17 years), Ma Thein Thein Aye (11 years), and U Aung Moe (78 years old, sentenced to 20 years and reportedly in poor health).
In August 2006, the SPDC arrested seven members of the family of FTUB member and activist Thein Win at their house in the Kyun Tharyar section of Pegu city. While in detention, several male members of the family were tortured while being interrogated.
Four members of the family were released in September 2006, but three of Thein Win's siblings (Tin Oo, Kyi Thein, and Chaw Su Hlaing) were charged with violations of sections 17 (1) and 17 (2) of the Unlawful Associations Act, and in 2007 they were each sentenced to 18 years in jail. Tin Oo suffered such intensive torture during his detention that he has now become mentally unstable, and there are fears for his health. All three are still incarcerated in the Toungoo prison.
Arrests and long prison sentences for May Day Event participants: In Rangoon the participation of six workers in a 2007 May Day event at the "American Center" resulted in their arrest by authorities. Those arrested on that day were Thurein Aung, Kyaw Kyaw, Shwe Joe, Wai Lin (aka) Wai Aung, Aung Naing Tun, and Nyi Nyi Zaw. On May 4, Shwe Joe and Aung Naing Tun were released from detention. However, two other labour activists (Kyaw Win [aka] Wanna, and Myo Min) who had gone to the Burma-Thai border to relay news of the arrests to the outside world were arrested on May 10. All six were subjected to intensive and heavy-handed interrogation. The men were put on trial starting on July 16, and significant harassment of both of their lawyers by the authorities finally prompted them to withdraw from the case on August 4, leaving the six defendants without legal counsel. Given the SPDC's absolute control over the courts, the outcome – long prison sentences – was a foregone conclusion, and on September 7, each of the six men was convicted of sedition under the penal code and sentenced to 20 years in jail. Thurein Aung, Wai Lin, Kyaw Win, and Myo Min were also convicted of association with the FTUB under section 17(1) of the Unlawful Associations Act for which they received an additional 5 years sentence, and for illegally crossing a border, for which their jail time was increased another 3 years, coming to 28 years in total. The six activists filed appeals against their convictions with the Divisional Court, which dismissed them – prompting them to file their appeals to the Supreme Court, where they were pending at the year's end.
The ITUC promptly filed a freedom of association complaint (case no. 2591) at the ILO against the SPDC government, and in their 349th report, the ILO CFA found again that there is a "total absence of a legislative framework and climate sufficient to enable trade unions to exist" in Burma and that rather than labelling the FTUB an illegal and 'terrorist' organisation, the government must "recognise the Federation of Trade Unions of Burma (FTUB) as a legitimate trade union organisation". The ILO CFA also called for the immediate release of all six incarcerated activists.
Detention and sentencing of Burma Railway Union leader U Tin Hla: U Tin Hla, a long-serving electrician with the Burma Railway Corporation who was active in the Burma Railway Union, was arrested along with his entire family on November 20. While his family was later released, Tin Hla was charged under section 19(a) of the penal code for possession of explosives that were in fact electric wires and tools in his toolbox. After a brief trial, he was sentenced to 7 years in prison. In reality, Tin Hla's crime was apparently his very active efforts to organize workers from the Railways and other sectors to support the popular uprising of the Buddhist monks and Burmese people in late September. Tin Hla was 60 years old when arrested and there are significant concerns for his health in prison. His family is purchasing and providing medicine to him, but his requests to see a doctor in prison have been denied.
Repression of seafarers overseas and prohibitions on contacting the SUB: The Seafarers' Union of Burma (SUB), which is affiliated to the FTUB and to the International Transport Workers' Federation (ITF), is also illegal in Burma. Burmese seafarers' contracts are subject to approval by the regime-controlled Seaman's Employment Control Division (SECD). As a condition of employment, seafarers are required to sit through lectures where SECD officials verbally warn them to stay away from the SUB and ITF.
The SPDC and SECD have retaliated against seafarers who sought or accepted assistance from the SUB or the ITF. The SUB reports that there is a significant number of seafarers every year who contact the SUB or the ITF while overseas (usually pursuant to a labour dispute on their ship) and whose status is now pending before the Department of Marine Administration (DMA) or SECD. Retaliation against seafarers includes a range of punishments, including imprisonment, seizure of repatriated wages, suspension of licenses, and blacklisting so that the seafarer is unable to obtain another overseas seafarer position.
The SUB reports that the DMA and SECD allow virtually all seafarer manning agents to insert language into seafarer contracts, stating that it is against the terms of the contract for the seafarer to contact the SUB, the ITF, or any of the other ITF-affiliated unions.
The SPDC also seeks to control Burmese seafarers through the Myanmar Overseas Seafarers' Association (MOSA). Seafarers are forced to join MOSA and pay an application fee in order to be considered by the SECD for issuance of a seafarers' book, which is required to seek employment as a seafarer on foreign ships. The leaders of MOSA are not elected but rather are appointed by the authorities.
"Workers' committees" organised by the authorities: In July 2004, the government announced that all factories employing over 100 workers were to establish "Workers' Supervision Committees" (WSC). They comprise four representatives elected by the workers but are chaired by the factory owner. Each Committee was instructed to meet once a month. A set of rules dealing with how to process workers' demands was distributed. Grievances are discussed in the workplace WSC before being submitted to the factory owner. If no agreement is reached at factory level, they go to the Township WSC.
While negotiations are underway under the chairmanship of the Township WSC, "the workers are to continue work so as not to affect production". No demonstrations are allowed either inside or outside the factory and "serious action" will be taken against anyone destroying the owners' property.
There were many spontaneous protests at factories over wages, conditions of work, and management and state repression, most of which were quickly suppressed by management and authorities using a mixture of tactics. A good example was the protests that started on January 3 at the Korean-owned Myanmar Yes garment factory, based in Hlaing Tha Yar industrial zone 2. Over 2,400 workers were angered by the poor pay and continued cheating on overtime by factory management and staged a demonstration. On January 5, local labour officials forced the workers to sign an agreement on management's terms and, backed by the police, compelled the workers to go back to work. The factory locked out workers for one day on January 7 as a warning and resumed production the next day. With key issues remaining unresolved, new worker protests were just a matter of time. On June 9, 600 of the workers walked off the job to protest, and management called in the Special Branch police and riot police who promptly arrested a number of the workers. While those arrested were released, management decided to shut down the factory, throwing all the employees out of work.
Labour rights activist Su Su Nway and others arrested for support to the Saffron Revolution: Su Su Nway, the activist who brought a forced labour complaint to the ILO that subsequently resulted in the first successful conviction of four local Burmese officials for procuring forced labour, was arrested on November 13 in Rangoon for her actions in supporting workers' participation in the Saffron Revolution. At the end of the year, she was being held in Insein prison, awaiting trial on charges of sedition.
Lay Lay Mon, a female labour activist who is a former political prisoner, disappeared on September 22 after helping organise workers to support protesting monks and citizens in the uprising in Rangoon. She is believed to be incarcerated in Insein prison but at year end there was no news of if or when she will be brought to trial. Another labour activist, Myint Soe, also disappeared during the last week of September after being active in engaging with workers to increase their involvement in the Saffron Revolution.