2009 Annual Survey of violations of trade union rights - Burma
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Burma, 11 June 2009, available at: http://www.refworld.org/docid/4c52cafb2d.html [accessed 27 March 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 Ayeyarwady Delta and southern Rangoon Division were devastated on 2-3 May by Cyclone Nargis, which killed more than140,000 persons, making it Burma's worst natural disaster in history. The suffering of the tens of thousands of survivors was immensely compounded by refusals by the State Peace and Development Council (SPDC) military government to immediately allow international teams of humanitarian experts and supplies into the storm-struck areas. A major reason was the priority placed by the SPDC on proceeding with a 10 May national referendum on a new, military-drafted constitution. Claims by the ruling military generals that the referendum received more than a 92% "yes" vote ignored widespread electoral irregularities and abuses that were roundly condemned by the international community. Harsh repression against all forms of trade union activity remained in place, dozens of trade unionists languished in jail, and the ITUC associated Federation of Trade Unions Burma (FTUB) was still considered an illegal organisation.
Trade union rights in law
New constitution passed – but no real rights for workers: During the government's campaign in support of the new Constitution, members of the FTUB inside Burma found credible evidence of abuses by the Burmese government such as threatening persons who did not vote with punishment (removal from the civil register, loss of services), pressuring citizens to attend pro-Constitution rallies, and frequently, raising doubts among voters that their choice in the election would be kept secret. Numerous instances were reported of advance voting where public officials monitored and intimidated voters as the voters made their choices. Activists found campaigning for a "no" vote against the Constitution were arrested and jailed. The Constitution was declared as formally adopted on 29 May.
Article 24 of the Constitution states that "necessary laws to protect the rights of workers" shall be enacted, but is silent on what the content of those laws will be. The right to form associations and organisations, raised in Article 354, is explicitly conditioned on not being "contrary to the laws enacted for Union security, prevalence of law and order, community peace and tranquillity, or public order and morality." The criteria for these definitions in law are not defined, leaving wide discretion to the SPDC to continue bans on a wide variety of trade union and civil society organisations.
Repressive anti-union legislation still on the books: 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.
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.
Trade union rights in practice and violations in 2008
No trade unions allowed – FTUB still 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 the 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 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 have 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 it as an unlawful association under section 15 (2) of the Unlawful Associations Act.
The General Secretary 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.
During 2008, SPDC officials continued to publicly refer to the FTUB as an illegal and terrorist 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 twelve years. 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). There was no change in their status during the year, and 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 efforts 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. 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.
Long prison sentences for May Day Event participants: In Rangoon, eight workers who participated in a 2007 May Day event at the "American Center" were arrested by the authorities (see details in 2008 issue of the Survey). Two were released some days later. The remaining six were subjected to intensive and heavy-handed interrogation, including use of electric shocks. On 7 September, each of the six men was convicted of sedition under Section 124(A) of the penal code, and each was sentenced to between 20 to 28 years in jail. 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, which reviewed the cases on 4 April and let the original court rulings stand.
The ITUC filed an ILO freedom of association complaint (case no. 2591). In their 349th report, the ILO CFA found 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 "recognize the Federation of Trade Unions of Burma (FTUB) as a legitimate trade union organization." The ILO CFA also called for the immediate release of all six incarcerated activists. In its three replies to the ILO during the year, the SPDC demonstrated its continued recalcitrance by accusing the ILO CFA of "interference in the internal affairs of the country."
U Thet Wai – Jailed for two years with hard labour for complaining to the ILO: U Thet Wai attended the trial of a political prisoner on 9 January, and after police observed him talking to the prisoner, he was apprehended and searched. A computer memory stick was found in his possession that contained copies of documents U Thet Wai had sent to the ILO office in Rangoon regarding the recruitment of child soldiers and use of forced labour. He was charged under penal code sections 189 (threat of injury to a civil servant) and 353 (assault or criminal force to deter an official in discharging his duty). He was also charged under section 33 of the Electronics Transactions Law. In March, the ILO Governing Body expressed very serious concerns about the case, demanded that U Thet Wai maintain his freedom, and called for an immediate cessation of government harassment of persons filing complaints with the ILO office in Rangoon. Subsequently, charges under sections 189 and 33 were dropped.
Despite international appeals by the international trade union movement and the ILO, U Thet Wai was convicted for violating section 353 and sentenced on 16 September to two years imprisonment with hard labour by the Panbedan Township Court. In a press release, the ILO stated in response that U Thet Wai's actions were fully in line with the Supplementary Understanding between the ILO and the government. The ILO added that it "cannot but consider that the sentence imposed is related to U Thet Wai's role in complaining on forced labour practices" and that this action "raises the question of honouring the Supplementary Understanding ... which provides full protection from prosecution and retaliation for persons making or supporting complaints of forced labour including underage recruitment." U Thet Wai appealed against his sentence, and at year's end his appeals were still pending.
More cases of retaliation against complainants to ILO: U Min Aung, a pro-democracy activist and a facilitator for forced labour complaints to the ILO, was arrested and charged with agitating and causing instability of the government (penal section 505B), encouraging people to cause unrest (section 143), formation of organisations (section 688), and causing an offence to Buddhism (section 295A). While international pressure caused the SPDC to quietly drop three of their charges, Min Aung was sentenced on 13 October 2007 to two years in jail, based on the Buddhism charge. His sentencing was strongly condemned by the ILO Governing Body. He remained in jail in 2008 which is an infringement to the Supplementary Understanding between the ILO and the Government.
On 3 August, a total of 49 farmers from Natmauk Township, Magwe Division, filed a complaint with the ILO protesting the seizure of their lands without compensation by the Central Military Weapons and Ammunitions Warehouse Battalion, led by Capt. Phyo Wei Lin. The army then further abused the farmers by compelling them to perform forced labour in then planting an army-controlled crop on those confiscated lands, and encouraged local authorities to crack down on the leaders of the group. Five of the farmers – Zaw Htay, Nay Lin, Saw Maung, Hla Soe, and Sein Sten – were arrested in October, interrogated by both the army and the police, and finally charged with violating provisions of the Electronic Transactions Law for using the internet to send government-controlled information. That information turned out to be photos of the confiscated lands and the rudimentary huts on them. Use of the Electronic Transactions Law is a common tactic employed by the SPDC to hold activists who are communicating with external audiences about human and labour rights abuses.
The ILO office in Rangoon became involved in investigating the complaint under the terms of the Supplementary Understanding. Subsequently, Nay Lin, Saw Maung, and Sein Sten were released on 10 December, but the remaining two farmer leaders were still being held at the Magwe Police station. But at year end the judicial proceedings against the five men were still pending.
Elderly Burma Railway Union leader U Tin Hla in poor health in jail: U Tin Hla, an electrician with the Burma Railway Corporation active in the Burma Railway Union, was arrested along with his entire family on 20 November 2007. While his family was later released, Tin Hla was charged under section 19(a) of the penal code for possession of explosives which were in fact electric wires and tools in his toolbox. After a brief trial, he was sentenced to seven years in prison. In reality, Tin Hla's crime was his active efforts to organise workers from the Railways and other sectors to support the Saffron Revolution uprising in September 2007. Throughout 2008, he remained in prison, suffering ill health from tuberculosis and diabetes.
Long jail sentences for workers from A21 Soap Factory: At the end of the year, three workers – Khin Maung Cho (a.k.a. Pho Toke), Nyo Win, and Kan Myint – employed at the A21 Soap Factory in Hlaing Thayar Industrial Zone were sentenced to long jail terms for involvement with exiled groups, sedition and other charges. Khin Maung Cho was allegedly sentenced to 19 years, while Kan Myint received ten years in jail and Nyo Win was given a five-year sentence.
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 that 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.
On 10 June, more than 500 workers from Myanmar Yes garment factory protested in front of the factory, seeking higher pay and improved benefits, and demanding management cease its practice of continually late payment of salaries. Factory management called in the police, who promptly arrested ten leaders of the workers, intimidated the other workers and ordered them back to work. The arrested leaders were interrogated about the protests and their actions but released soon thereafter.
Labour rights activist Su Su Nway sentenced to long prison term: 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 13 November 2007 in Rangoon for her actions in supporting workers' participation in the Saffron Revolution. On 13 November 2008, she was sentenced to 12 years and six months imprisonment on charges of encouraging assembly of persons disturbing state tranquillity, obstructing the work of officials, and issuing communications that interfere with Burma's relations with other nations. Appeals for her immediate release by the ILO Governing Body were unsuccessful.