2007 Annual Survey of violations of trade union rights - Burma
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Burma, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca3d2d.html [accessed 29 May 2017]|
|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
The State Peace and Development Council (SPDC) military regime continued to totally disregard all human and labour rights. Military agents tortured and imprisoned labour leaders, maintained bans on the Federation of Trade Unions – Burma (FTUB) and other labour organisations, and continued the house arrest of opposition leader and Nobel Peace prize winner Aung San Suu Kyi. Despite interventions by the ILO, forced labour continued to be used systematically by the regime.
Trade union rights in law
Obscure legislation: 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.
Burma's one-party Constitution, which dates back to 1974 but was suspended in 1988, provides for freedom of association, in theory. In a communication to the ILO dated 23 September 2004, the SPDC claims that since the 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 colonial and more recent legislation, as well as military decrees and orders (which take precedence over any other legal provision) that impose severe legal limitations on this right.
In particular, much of the British-era legislation has so far not been repealed, amended or officially abrogated. This is the case with the 1926 Trade Union Act which has been the subject of comment by the ILO for many years. One of the problems in the law is the 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.
Single trade union system: Moreover, 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. However, a number of provisions appear not to be in conformity with freedom of association. These concern, for instance, the power of the President of the Union of Burma (former name of the country, changed by the SPDC to "Myanmar") 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. On the other hand, it is difficult to assess whether this Act is still in force, and the ILO has so far proven unable to obtain firm explanations from the government on this subject.
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 State Law and Order Restoration Committee (previous name of the junta). 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."
Furthermore, on 30 September 1988, the military regime issued Order 6/88 known as the Law on the Formation of Associations and Organisations. This Order states that all "organisations shall apply for permission to form to the Ministry of Home and Religious Affairs". It also provides that "organisations that are not permitted shall not form or continue to exist and pursue activities." 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, and means that they have to request previous authorisation from the military to be established or to pursue their activities. 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.
Trade union rights in practice
Whatever the written law, in practice, workers who fight to redress often atrocious working conditions in turn face threats, violence and murder by the authorities who equate trade unionism with treasonous behaviour.
No trade unions allowed: All trade unions that existed before the present military regime came to power have been disbanded. 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.
Government controlled organisations: The Union Solidarity and Development Association (USDA), which workers and other citizens are forced to join, was set up by the military to substitute for workers' organisations and all other civil society institutions. It was created in September 1993 by the military regime and is officially reported to count some 13 million members. Following an attack on her motorcade by vigilantes allegedly led by USDA members in November 1996, Nobel laureate Aung San Suu Kyi stated in an interview that it was a "deliberate attempt to harm us badly or even kill us" and compared the USDA to the Nazi Brown Shirts. At public rallies throughout the country in 2005, USDA leaders repeatedly praised the work of the Tatmadaw (Burmese Army) and referred to the USDA as "an auxiliary force of the nation." The USDA is quite simply a political mobilisation tool of the regime.
The SPDC has also overseen the creation of the Myanmar Overseas Seafarers' Association (MOSA), through which it seeks to control Burmese seafarers. Launched in 2002, MOSA was inaugurated by then Prime Minister General Khin Nyunt, who warned delegates against "elements" that are "striving against the interests of the state" and engaging in "anti-Myanmar activities." He further called that "all seafarers serving under this association must unite with one accord, and refrain by their words and actions from harming the State ... " The SPDC incorrectly asserted to the ILO that MOSA was an affiliate of the International Transport Workers' Federation (ITF), which is a Global Union Federation associated with the ITUC. Seafarers are forced to join MOSA and pay an application fee in order to be considered by the regime-controlled Seaman's Employment Control Division (SECD) for receipt of a seafarers' book which is required for Burmese to seek employment as a seafarer on foreign ships. The leaders of MOSA (such as Min Sein, Chairman, and Captain Soe Min Aung, Secretary) are not elected but rather are appointed by the authorities.
In general terms, the junta's vast military and security apparatus continues to attempt to ensure that no new leaders or independent institutions emerge to challenge its rule, using detention and torture as its tools of trade.
"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.
FTUB – independent workers' organisation forced to work underground: The independent Federation of Trade Unions-Burma (FTUB) has been forced to operate clandestinely since its inception in 1991. It maintains structures both inside and outside the country. It is the effective voice of over 1.5 million Burmese migrants working in Thailand. But the FTUB also maintains underground unions in key industrial sectors in Burma proper, and 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. The government's propaganda apparatus and diplomats regularly and virulently attack the FTUB, calling it an expatriate terrorist gang. The (former) ICFTU itself has been accused of assisting and encouraging the FTUB to commit terrorist acts.
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 it as an unlawful association under section 15 (2) of the Unlawful Associations Act.
FTUB regularly accused of terrorism: The Secretary General of the FTUB, Maung Maung, had to leave the country at the time of the 1988 military crackdown, owing to his involvement in the democratic trade union movement. He is under constant attack from the SPDC regime, which continually accuses him of leading a terrorist organisation, and being involved in bombings, planned assassinations, and other violent activities. He was also accused by representatives of the Ministry of Labour of deceiving the ILO to take action against Burma, and has been prominently vilified at rallies organised throughout the country by government controlled civic organisations, like the USDA, the Myanmar Women's Affairs Federation, and the War Veterans' 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 "blasting bombs" in July 2005, "masterminding terrorist attacks in the name of labour affairs", and deceiving the ILO to launch a "political attack" against the SPDC. The accusations are widely believed by the international community to lack any credibility whatsoever.
Repression of seafarers overseas, retaliation against those contacting SUB: The Seafarers' Union of Burma (SUB), which is affiliated to the FTUB and to the ITF, is also illegal in Burma. The SUB seeks to protect Burmese seafarers sailing on foreign ships, mostly under flags of convenience (FOCs). Burmese seafarers typically have to pay three months' wages in advance to state-controlled or private shipping agents in Rangoon before they are allowed to take up their assignments on foreign ships. Their contracts are also subject to approval by the regime-controlled SECD. As a condition of employment, seafarers are required to sit through lectures where SECD officials – including the Director, Thaung Kyai – verbally warn them to stay away from the SUB and the ITF, and refer to the SUB as an underground organisation undertaking illegal political activities. Once aboard, they are prohibited from complaining about their working and living conditions, which are notoriously bad aboard FOC ships.
The SPDC and SECD have retaliated against seafarers who sought or accepted assistance from the SUB or the ITF. The SUB reports that there are an increasing number of seafarers (numbering in the dozens) who contacted the SUB or the ITF while overseas (usually pursuant to a labour dispute on their ship) and whose status is now pending (in some cases for years) before the Department of Marine Administration or SECD. Retaliation 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 SPDC and SECD also use the MOSA to deter seafarers from becoming involved with the SUB or ITF.
The SUB also reported that the DMA and SECD are allowing 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.
Continued detention of FTUB Central Executive Committee member Myo Aung Thant: Independent trade union leaders are punished with heavy prison sentences. Previous issues of this Survey have reported in detail about the imprisonment and sentencing of FTUB CEC members U Myo Aung Thant and U Khin Kyaw, arrested in June 1997. The former was sentenced to 20 years for "high treason", i.e. maintaining contacts with the FTUB. His wife was arrested at the same time and sentenced to ten years' imprisonment as an accomplice to her husband. She was released in July 2002 and has since fled the country. 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. According to his family, he has contracted tuberculosis while in prison and he suffers from very poor health.
U Khin Kyaw was released from prison in 2005. He is believed to still be in Burma, but his whereabouts are unknown.
Violations in 2006
Background: During the year, the SPDC completed the re-location of its capital to Pyinmana, a new city being constructed in the jungle several hundred kilometres north of Rangoon. A major military offensive by the SPDC against ethnic Karen in the eastern part of the country killed and displaced thousands.
Regime arrests and tortures family of exiled FTUB activist: On 8 August, military authorities arrested eight members of the family of FTUB member and activist Thein Win at their house in the Kyun Tharyar section of Pegu city. They included both his parents, a brother, two of his sisters, a brother-in-law and a sister-in law. While his mother and one his sisters were released after one day, the others were sent to Taungoo. They were intensively interrogated by military intelligence and Special Branch officers about the activities of Thein Win, including an alleged trip he made to Pegu to organise activities in the city around May Day. On 9 August, the round-up expanded and around ten more alleged associates of Thein Win were arrested by the military, including the village head and other elders of Kyun Chaung village in Nyaunglaybin township of Pegu division.
While being held at Toungoo the family members were ordered by their interrogators to sign "confessions" about Thein Win's activities, which they refused to do. As a result, all the male members of his family except his father were tortured with electric shocks, including shocks to the genitals. Family members were also beaten, put into "water cells", and denied food for four days. Thein Win's sister Chaw Su Hlaing, who was five months pregnant, was beaten so badly that she had to be hospitalised. His sister-in-law, Aye Aye Maw, who was arrested with her baby, was also badly battered and required hospitalisation. Most of the detainees subsequently signed the "confessions" proffered by their military jailors.
On 3 and 4 September, the authorities released most of Thein Win's family members and friends. Most were however subsequently visited and threatened by Military Intelligence officers who made threats and demanded each released prisoner pay 1,000,000 kyats into an army fund. Facing strong pressure, a number of those released fled the country to seek refugee status in Thailand.
However, three of Thein Win's siblings (Tin Oo, Kyi Thein, and Chaw Su Hlaing) were still being detained at the end of the year, charged with violations of sections 17 (1) and 17 (2) of the Unlawful Associations Act. There are serious concerns about the fate of Chaw Su Hlaing's baby, who was due to be born near the end of the year.
Network of FTUB organisers still in prison: Starting in early June 2005, the SPDC uncovered an underground network of ten FTUB organisers in the Pegu area (80 kilometres from Rangoon) 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 arrested. They were tried in secret inside Rangoon's Insein Prison and sentenced to terms ranging from three to 25 years (see details in 2006 issue of this Survey). At the end of 2006, all these FTUB members were still being detained in Insein prison. One of them, retired army Maj. Myint Lwin, aged 77 at the time of his arrest and sentenced to seven years, was suffering from a debilitating yet unknown illness and there are significant concerns about his health. Another one, industrial worker Aung Myint Thein had died under mysterious circumstances in his cell at Insein prison in November 2005. He had been physically fit and in good health when arrested five months earlier. The authorities told the family that he died of dysentery, but refused to turn over the body to his relatives for a funeral, making it impossible to accurately ascertain whether he died from abusive treatment, disease, or other causes. Prison officials cremated the body themselves.
SPDC reacts to international pressure, releases complainants to ILO: In 2005, Aye Myint, a labour lawyer, had brought to the attention of the ILO the complaints of residents in Phanungdawthi village tract who claimed their land had been seized by the military. Authorities alleged that he provided incorrect and false information in the complaint and arrested him on 27 August 2005. He was charged with violating section 5 (e) of the catch-all Emergency Provisions Act and sentenced him to seven years in prison. Because of his conviction, government authorities acted on 13 May 2006 to strip him of his licence to practice law and ensured his dismissal from the Bar Council, in contravention to Council regulations.The ILO made the release of Aye Myint an explicit condition of continued cooperation with Burma, and set a deadline for his release. The SPDC finally released Aye Myint on 8 July, after conditionally suspending his sentence under the terms of Section 401 of the Criminal Procedure Code which provides the President of the Union with broad powers to set aside judicial penalties. But at year's end, his licence had still not been returned to him.
Su Su Nwe, the community activist who brought a forced labour complaint to the ILO (which subsequently resulted in the first successful conviction of four local Burmese officials for procuring forced labour), was also in jail as the year started, serving a 20 month sentence on charges of damaging the reputation of local officials and abusive behaviour. The ILO strongly demanded that she be freed immediately, and on 6 June, shortly after the start of the International Labour Conference in Geneva, Su Su Nwe was released under the terms of Section 401 of the Criminal Procedure Code.
Pursuant to demands by the ILO, in September the SPDC also ordered the withdrawal of a court case against three complainants (Zaw Htay, Thein Zun, and Aung Than Tun) in Aunglan Township, Magway Division. The three men had assisted a family whose relative had died during forced labour to file a complaint to the ILO, and as a result were accused by the authorities of "providing false information to a civil servant."
Underground labour and democracy activists arrested: In the month of March, 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. The activists were all closely involved in organising consultations and distributing the alternative Constitution for Burma which was drafted by the National Council of the Union of Burma (NCUB, of which the FTUB is a key component). All five were sentenced to long prison terms, and four were serving those terms in Insein Prison at the end of the year – they include 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) and Ma Thein Thein Aye (11 years). U Aung Moe (78 years old, sentenced to 20 years) was reported to be in poor health and was hospitalised at Insein General Hospital. Activities cited by the SPDC included operating a satellite phone and making calls to relay information about the situation inside the country, meeting with exiled organisations and groups, including the FTUB General-Secretary, in Mae Sot, Thailand and other charges. The five activists were thus labelled by the SPDC as working with terrorists and received their lengthy jail terms.
Myanmar Hae Wae calls in police to defeat strike: On 2 May, the 934 workers at Hae Wae Garment, located in South Okkapala Township in Rangoon, went on strike to demand better conditions of work and increased salaries. Factory owner Tae Joshin arrived to discuss their demands on the following day. So did SPDC Township Authority Chairman Kyaw Shwe and local Police Chief Soe Lwin, who came with 20 police officers to "inspect" the factory and survey the situation. When workers demanded a meeting with the Township Authority and police to press their demands, factory management refused – and only allowed a hand-picked group of 48 workers to meet with the authorities. All of them were forced to sign a written statement that indicated that there were no problems at the factory. Factory manager Myo Win later took the entire team of senior local township and police authorities to a nearby restaurant, where they received bribes from factory officials. Workers were compelled to return to work without any improvement in conditions and faced a climate of intimidation in the factory in subsequent weeks. A detachment of 12 to 20 police officers were regularly present in the factory to prevent further unrest.
Karen Health Workers Union (KHWU) member arrested, jailed: Naw Bey Bey, an activist member of the KHWU from Toungoo district, Karen state, was arrested in Shazebo village by Tatmadaw troops late in January. Soon thereafter, she was seen being held as a prisoner in a Tatmadaw camp near the village of Play Sa Lo along with two other colleagues who were also detained at the same. Naw Bey Bey was subsequently transported to Toungoo, where she was accused of having connections with illegal organisations, and sentenced to a four year prison term with hard labour.
FTUB senior official arrested in Thailand: On 1 December, Naing Ko Ko, the International Campaigns Secretary of the FTUB, was prevented by Thai authorities from entering Thailand after playing a high profile role as a senior Burmese activists in ASEAN civil society meetings held in the Philippines in advance of the annual meeting of ASEAN heads of state. An investigation by the FTUB and other organisations found a strong likelihood that the Embassy of Burma in the Philippines may have been involved in requesting Thai action. Naing Ko Ko's Burmese passport was declared null and void by the SPDC but timely interventions by the ITUC and other supportive organisations and individuals prevented the possible deportation of Naing Ko Ko to Burma. After being held at the lock-up at the airport in Bangkok for three weeks, Naing Ko Ko was accepted as a refugee and resettled in a third country.