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Report of the ILO High-level team (Part 1) -- posted in 2 parts for easier=
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downloading.

NOTE FROM THE EDITOR OF THIS EMAIL VERSION: PAGE NUMBERS HAVE BEEN OMITTED,=
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THE ORIGINAL FOOTNOTES HAVE BEEN CONVERTED INTO ENDNOTES AND ARE PLACED IN=
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SQUARE BRACKETS. THE AUTHORITATIVE TEXT IS ON THE ILO WEBSITE:=20
http://www.ilo.org/public/english/standards/relm/gb/docs/gb282/pdf/gb-4.pdf=
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(PDF file, 234K)

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INTERNATIONAL LABOUR OFFICE GB. 282/4 282nd Session
Governing Body Geneva, November 2001
FOURTH ITEM ON THE AGENDA

Developments concerning the question of the observance by the Government of=
=20
Myanmar of the Forced Labour Convention, 1930 (No. 29)

Report of the High-Level Team

Contents

I. Establishment of the High-Level Team... 1

II. Mandate of the HLT... 2

III. Programme and method of assessment and its limitations... 3

III. 1. Programme... 3

III. 2. Method of assessment and its limitations... 5

IV. Findings... 7

IV. 1. Findings as regards formal steps taken pursuant to the Orders...7

A. Background guidance provided by the Committee of Experts in its 2001=20
report as regards steps still required... 7

B. Steps taken with regard to the issuance of additional instructions,=20
including to the military... 8

C. Dissemination of information to those concerned, including the general=20
population... 9

D. Action with regard to the enforcement of the Orders... 10

(i) Legislative and institutional background... 10

(ii) The realities of enforcement... 12

IV. 2. Findings as regards the impact on the realities of forced labour of=
=20
the steps taken to implement the Orders... 13

V. Identification of obstacles to the more effective eradication of forced=
=20
labour... 14

V. 1. The "self-reliance" policy of the army... 14 V. 2. The uncertainty as=
=20
regards substitute financial/ practical arrangements... 15

V. 3. Institutional obstacles... 16

VI. The way forward: How to overcome the obstacles and ensure sustainable=20
progress towards the elimination of forced labour in Myanmar... 17

VI. 1. Economic modernization... 17

VI. 2. Consistent political will... 19

VI. 3. The engagement of the international community... 20

Conclusions... 21


I. Establishment of the High-Level Team

1. According to the "Understanding on an ILO Objective Assessment" reached=
=20
by the Director-General's representatives and the Government of Myanmar on=
=20
19 May 2001, [1]  the Government of Myanmar (" the Government") agreed to=20
receive a High-Level Team (" HLT") to carry out an objective assessment=20
with respect to the practical implementation and actual impact of the=20
framework of legislative, executive and administrative measures which the=20
Government had adopted at the end of October and the beginning of November=
=20
2000 following a previous ILO Technical Cooperation Mission. This=20
Understanding has to be read in the light of a previous exchange of letters=
=20
between the Director-General and the competent authorities. This=20
correspondence makes it clear that, despite its earlier decision to cease=20
cooperation with the ILO, the Government accepted this objective assessment=
=20
since, as pointed by the Director-General in his letter of 1 March, [2]=20
they could not expect to receive credit for their stated aim of=20
implementing measures designed to eradicate forced labour in the absence of=
=20
an objective assessment which the ILO alone was in a position to provide.=20
This development was acknowledged by the Committee of Experts on the=20
Application of Conventions and Recommendations of the International Labour=
=20
Conference at its last session in June 2001, [3] and the objective=20
assessment was tentatively scheduled to take place during the second half=20
of September and the beginning of October 2001.

2. Contacts were initiated in July by the Director-General with a view to=20
establishing the HLT. The International Labour Office also had a number of=
=20
consultations during the summer with organizations of the UN system and=20
international NGOs operating in Myanmar with a view to identifying places=20
which the HLT might consider visiting and, as far as possible and=20
appropriate, seeking their logistical assistance and support on the spot.

3. After informing the Officers of the Governing Body, the Director-General=
=20
announced the composition of the HLT on 20 August 2001. It was as follows:=
=20
The Right Honourable Sir Ninian Stephen, Ms. Nieves Roldan-Confesor, Mr.=20
Kulatilaka A. P. Ranasinghe, Mr. Jerzy Makarczyk. (Biographical information=
=20
of the members of the HLT is provided in Appendix II.)

4. During a briefing session in Geneva on 30 and 31 August 2001, the HLT=20
had a first tentative discussion of its programme and methods of work.=20
Taking into account the weather conditions prevailing in the country it was=
=20
decided that the HLT would arrive in Yangon on Monday 17 September and=20
complete its visit on the evening of Saturday 6 October, after three full=20
weeks in the country. The Myanmar authorities were agreeable to this=20
schedule. At the close of this briefing session, the HLT decided to seek=20
confirmation of a solemn commitment on the part of the authorities of=20
Myanmar which would be made, "through [the HLT] to the international=20
community that no action of any kind will be taken against persons or their=
=20
families or organizations who may directly or indirectly contribute=20
information to the HLT or to the discharge of its mandate, nor indeed seek=
=20
to identify such persons". [4] This confirmation was received on 7=20
September from the Permanent Representative of Myanmar to the United=20
Nations, Ambassador U Mya Than, acting on behalf of the Minister for=20
Foreign Affairs. [5]

5. Notwithstanding this commitment, the HLT gave particular attention to=20
the precautionary measures that it should take as regards persons that it=20
might wish to meet. First, it was decided that the HLT should wherever=20
possible have recourse to international and independent interpreters.=20
Second, the HLT also discussed the methods to be used in gathering=20
information and decided, inter alia, that all data that could identify=20
persons met would be kept confidential. The persons met should be informed=
=20
of this and of the solemn commitment undertaken by the Government. When=20
appropriate, the HLT could insist on the importance of telling the truth.

6. The members of the HLT and the ILO staff assigned to support them [6]=20
arrived in Bangkok on Saturday, 15 September, and had a full day=20
preparatory meeting on 16 September to review the arrangements made for the=
=20
visit, establish their programme for the first week in Yangon, and make=20
tentative plans for the visits of the HLT to the field during the two=20
following weeks. It benefited in particular in that respect from the=20
valuable assistance of the "facilitator" agreed upon by the authorities and=
=20
the Director-General in accordance with paragraph 4 of the abovementioned=20
Understanding, Mr. Leon de Riedmatten.


II. Mandate of the HLT

7. As indicated above, the mandate of the HLT was to carry out an objective=
=20
assessment of the practical implementation and actual impact of the=20
framework of legislative, executive and administrative measures taken by=20
the authorities, taking into account the relevant observation made by the=20
Committee of Experts at its last meeting (see paragraphs 32 and 33 below=20
and Appendix V).

8. The HLT considered that its task extended beyond the analysis of the=20
formal steps taken by the Government to implement the orders concerning=20
forced labour, that is, Order 1/ 99 of 14 May 1999 and Order Supplementing=
=20
Order 1/ 99 of 27 October 2000 (hereinafter referred to collectively as=20
"the Orders"). The reference in the Understanding to the "impact" of the=20
Orders made it clear that it was also to assess to what extent the new=20
Orders had made, or were capable of making, a difference to the realities=20
of forced labour described in the report of the Commission of Inquiry. This=
=20
in turn implied that the HLT should, as appropriate, try to identify the=20
obstacles to the full eradication of forced labour, and investigate any=20
possible ways in which they could be overcome. On the occasion of its=20
meeting on 21 September with Secretary-1 of the State Peace and Development=
=20
Council (SPDC), Lt.-Gen. Khin Nyunt, the HLT indeed made a proposal along=20
these lines in response to his suggestion that the HLT should inform him of=
=20
any violations it might come across.

9. It is on this basis that the members of the HLT accepted the task=20
entrusted to them.


III. Programme and method of assessment and its limitations

10. The framework provided by the Understanding ensured that the HLT would=
=20
have "complete discretion" to establish and implement its programme of=20
work, meetings and visits. The Government fully honoured its obligations=20
under the Understanding not to interfere with the work of the HLT, which=20
expresses its appreciation of the excellent arrangements which had been=20
made by the Government to assist it in the discharge of its mandate.

III. 1. Programme

11. The first week of the HLT's visit to the country (17-22 September 2001)=
=20
was spent in Yangon, [7] in an intensive programme of meetings with a view=
=20
to: (i) obtaining general background information; (ii) assessing the steps=
=20
taken by the authorities in Yangon to implement the Orders; and (iii)=20
seeking further information and advice before finalizing its programme for=
=20
the two following weeks of field visits designed to assess the real impact=
=20
of the measures taken. In this context, the HLT had a lengthy meeting with=
=20
the Implementation Committee, made up of representatives from all=20
ministries involved in the implementation of the Orders. It also had other=
=20
meetings with a number of ministers, deputy ministers and senior officials=
=20
(including the Ministers for Home Affairs, Foreign Affairs, Labour, Social=
=20
Welfare, a Minister at the Prime Minister's Office, the Deputy Minister for=
=20
Foreign Affairs, the Chief Justice, and the Attorney-General). As indicated=
=20
above, it also had an important meeting with Secretary-1 of the SPDC,=20
Lt.-Gen. Khin Nyunt. Substantial discussions were also held with the=20
leadership of the National League for Democracy (NLD). The HLT was received=
=20
privately by Daw Aung San Suu Kyi, with whom it had already established=20
contact during its initial session in Geneva. It also met with the members=
=20
of the diplomatic community, the United Nations Country Team, the=20
international and national business communities, local and international=20
NGOs, the ICRC, ceasefire groups, ethnic nationalities representatives of=20
the Committee Representing People's Parliament, as well as religious=20
leaders. [8]

12. The two following weeks were devoted to field trips to various parts of=
=20
the country. On the occasion of its briefing in Geneva, the HLT had agreed=
=20
that in order to make the best possible use of the limited time available=20
it would travel by chartered plane (hired in Bangkok) to reach areas not=20
necessarily covered by regular commercial flights, and to then proceed by=20
road with four-wheel-drive vehicles, or by boat where necessary. It had=20
also decided to split into two groups to cover as many areas as possible.=20
Each group was accompanied by two independent, international interpreters.=
=20
The two groups met again in Yangon in the middle of these field trips (on=20
28 and 29 September) to compare their respective findings and experiences.=
=20
A full itinerary of the HLT's field trips is appended, [9] as well as a map=
=20
of the country. [10]

13. These field trips made possible meetings with authorities at the state/=
=20
division, district, township and village-tract [11] levels. The two groups=
=20
made a point of always visiting regional and local military commanders=20
whose role, as will be seen below, is fundamental in the implementation of=
=20
the Orders. They also had many informative meetings with religious leaders=
=20
of different faiths and denominations, as well as UN, NGO and ICRC=20
representatives.

14. A special and unique value of these field trips was that they enabled=20
the members of the HLT to conduct many random interviews in the absence of=
=20
representatives of the Government with individuals in the streets of towns=
=20
and villages, in people's houses, in teashops and in other public places,=20
as the opportunities presented themselves.

15. After completion of the field trips, the HLT returned to Yangon and on=
=20
Friday, 5 October, met again with the Implementation Committee to seek=20
clarification on some of the issues which it had identified during its=20
visit. It was also received by the Chairman of the SPDC, Senior General=20
Than Shwe, accompanied by his deputy, General Maung Aye, and Secretary-1 of=
=20
the SPDC, Lt.-Gen. Khin Nyunt. A summary of the introduction by Senior=20
General Than Shwe and the reply by Sir Ninian Stephen on behalf of the HLT=
=20
appears as Appendix IX. The HLT then met for a second time with Daw Aung=20
San Suu Kyi. Before leaving Yangon, it had a final meeting with the members=
=20
of the diplomatic community, the United Nations Country Team, and the=20
business community. [12]

16. The HLT considered that the information collected during these three=20
weeks in Myanmar would usefully be complemented by some meetings and=20
interviews across the border in Thailand with persons who claimed to have=20
been recently subject to forced labour, to be organized with the assistance=
=20
of NGOs working in this area. Consistent with its concern to ensure=20
complete transparency of its programme and methods of work, the HLT had, at=
=20
its meeting on 5 October with the Chairman of the SPDC, Senior General Than=
=20
Shwe, informed him of its intention to do this and of its determination to=
=20
assess such additional information as it might receive with the same=20
critical judgement as it had exercised during its visit to Myanmar. [13]

17. The HLT had to forgo the possibility of also conducting meetings and=20
interviews across the border in Bangladesh. It did, however, receive some=20
very recent information covering the period from mid-July to 2 October 2001=
=20
from two researchers stationed in Bangladesh who met the HLT in Bangkok on=
=20
Sunday, 7 October. This information provided some useful complementary=20
impressions to those the HLT had obtained in Rakhine State, as well as some=
=20
interesting feedback concerning its visit.

III. 2. Method of assessment and its limitations

18. The HLT was able to collect an impressive mass of information and=20
documentation (see Appendix X) as well as conducting many interviews (see=20
Appendix VI). As regards interviews, care was taken to ensure the greatest=
=20
possible consistency in the work of the two groups and the comparability of=
=20
their findings. To that end, the HLT had established a standard checklist=20
of questions, adjusted to the different types of interviews (that is, inter=
=20
alia, with the military, the authorities and villagers in general).

19. Despite the exceptional abundance and diversity of the information=20
received, the limitations of the exercise must however be recognized,=20
limitations relating to geographical coverage as well as to the spontaneity=
=20
and reliability of the information provided in interviews and the extent to=
=20
which people felt safe to be frank in those interviews.

20. The geographical limitations were dictated by the time and resources=20
available to the HLT. Taking into consideration information received from a=
=20
number of sources, including international NGOs and diplomats, the HLT had=
=20
made a selection of places it wished to visit. It did not select only those=
=20
places where, on the basis of allegations received, the situation appeared=
=20
to be most serious, but attempted to gain a more balanced overview by=20
selecting a range of different areas =96 some ceasefire areas, some=20
non-ceasefire areas, areas with and without significant international=20
presence, and towns and cities as well as more remote areas. Because most=20
allegations that the HLT received related to areas distant from the central=
=20
part of Myanmar, it tended to concentrate on those areas, although the=20
Implementation Committee had suggested that the HLT also visit certain=20
specific projects in central parts of the country. On the occasion of the=20
second visit that the HLT paid to Daw Aung San Suu Kyi, she expressed some=
=20
regret that the HLT had not visited this central part of the country. She=20
and the NLD in fact provided the HLT with two documents containing a number=
=20
of allegations of forced labour occurring in these central areas.

21. As previously noted, the HLT enjoyed full freedom to visit the places=20
that it wished in Myanmar, and none of their requests was turned down on=20
the security grounds referred to in the Understanding. On a couple of=20
occasions, however, when ambushes had recently taken place (for instance=20
near Dawei or on the road between Loikaw and Taunggyi) the authorities=20
insisted on the presence of a military escort for its protection. In=20
addition, logistical assistance in the form of a generally discreet escort=
=20
was available to each group as it proceeded with its visit, the escort not=
=20
however accompanying the HLT into particular towns or villages where it=20
conducted interviews, but waiting at the outskirts. [14]

22. The conditions in which the programme was established made it difficult=
=20
for the authorities to anticipate the HLT's itinerary and the specific=20
places it would decide to visit. However, for the purpose of organizing=20
internal flights and landing with a chartered plane, 48 hours' notice had=20
to be given.

23. It was obvious that the visit had nevertheless been the object of a=20
very intensive preparation by the authorities for the purpose of giving as=
=20
favourable an impression as possible of the forced labour situation.=20
Preparatory work apparently started as early as the beginning of the summer=
=20
(soon after the conclusion of the Understanding at the end of May 2001).=20
But it seems to have been reactivated on a more targeted basis as the=20
itinerary of each of the two groups was made known or became evident. Thus,=
=20
on several occasions copies of the Orders displayed were fresh and=20
occasionally villagers said that they had been posted a couple of days=20
before. It must, at the same time, be stated that despite numerous reports=
=20
received from a number of sources, according to which there had been an=20
orchestrated campaign to collect signatures to document that forced labour=
=20
no longer existed, the HLT was never confronted with such obviously=20
fabricated evidence.

24. As regards individual interviews, the HLT on occasions felt that=20
despite the assurances it provided about the commitment given by the=20
authorities and the confidentiality of the interviews, the persons being=20
interviewed did not feel completely free to speak and sometimes even=20
explicitly said so. Advice received, in particular from the NLD and=20
religious leaders, however, was that despite this limitation the effort to=
=20
obtain first hand information from the people directly through interviews=20
was worthwhile because "there existed courageous people" in Myanmar. On=20
balance, the HLT was impressed by the readiness of individuals to provide=20
it with information.

25. The limitations resulting from psychological or other types of pressure=
=20
to which persons might have been subjected in Myanmar obviously do not=20
apply to the information collected outside its borders. [15] But this=20
information suffers from other limitations. Interviews by persons other=20
than the HLT itself need to be assessed differently from those which the=20
HLT undertook directly. Because interviewees were selected by the=20
interviewers, whose methods were not under the direct control or=20
supervision of the HLT, the information that the HLT obtained from persons=
=20
that it met across the border also needs to be distinguished from the=20
"random" information received within Myanmar. First, the HLT was only able=
=20
to meet outside Myanmar with those persons approached by the various NGO=20
organizations concerned through their networks, and who were willing and=20
able to travel to the locations visited by the HLT. Second, they reflect=20
the realities of some parts of the country nearer to the border where in=20
many cases there are accounts of ongoing insurgency.

26. Whether collected inside or outside the country, this information=20
obviously does not necessarily constitute "evidence" in the legal sense of=
=20
the word. The opportunities available to verify the authenticity and=20
genuineness of the information were limited. For obvious reasons relating=20
to the protection of the anonymity of those concerned and consistent with=20
the specific commitment made to them and to the NGOs, the transcripts have=
=20
to remain confidential unless those concerned agreed to them being made=20
public. While the strict provisions of the law relating to the reception of=
=20
evidence are not applicable, the HLT was guided by standards of what is=20
just, fair and reasonable.

27. However, the task of the HLT was not to pass judgement or to establish=
=20
judicial truth but rather to try to establish objectively a trend in the=20
evolution of the practice of forced labour, as compared with previously=20
established facts. For that purpose all the information and documentation=20
received was of great help to the HLT in assessing the situation.

28. In one case, however, the HLT considered that it was both safe and=20
necessary to investigate more thoroughly the reliability of a statement=20
reported in an email from an NGO, the Shan Human Rights Foundation. This=20
information reached the HLT shortly before it left Yangon (see Appendix=20
XI). It was then subsequently referred to during an interview across the=20
Shan State border in Thailand, by a person claiming to have personal=20
knowledge of the event. The HLT considered first that the information was=20
already in the public domain, and if it was true, the unfortunate deceased=
=20
victims did not have anything more to fear. Second, the tragic outcome was=
=20
allegedly the direct result of a complaint lodged by villagers against a=20
Regional Commander following a public announcement specifically made in=20
that region by Secretary-1, Lt.-Gen. Khin Nyunt, about the illegality of=20
forced labour. The day after receiving this testimony the HLT thus decided=
=20
to send a letter to Senior General Than Shwe to try to obtain clarification=
=20
of this case before the finalization of the report (this letter together=20
with the reply signed by Secretary-1 which was received by the HLT at the=20
time of signing this report is reproduced in Appendix XI).

29. As reflected in the summary in Appendix VI, section (a), the HLT was=20
able to conduct seven meetings with various NGOs and other groups and 96=20
interviews with individuals during its additional week of investigation,=20
across the border in Thailand. In the course of individual interviews,=20
orders to heads of villages emanating from various military or paramilitary=
=20
groups and requisitioning various forms of forced labour were handed to the=
=20
HLT. Translations of these documents have been carried out as far as=20
possible, but it was obviously impossible to systematically establish their=
=20
authenticity, although many of them appeared to be originals, bearing the=20
stamps of the military groups concerned.

30. The question arises as to what should be done with the transcripts of=20
the interviews and written documents and other material received during=20
these interviews. In view of the commitment made to those concerned, the=20
HLT recommends that these extremely valuable materials, duly expurgated of=
=20
identifying information, should be kept in the archives of the ILO and that=
=20
in due course the Governing Body should consider if, and under what=20
conditions, this exceptional source of information could be opened to the=20
public and academic researchers.


IV. Findings

IV. 1. Findings as regards formal steps taken pursuant to the Orders

31. Taking as a starting point the observation of the Committee of Experts=
=20
in its 2001 report, the HLT has examined the steps taken with regard to the=
=20
issuance of additional instructions, including to the military, the=20
measures taken in order to disseminate the Orders to those concerned,=20
including the general population, and, finally, any action relating to the=
=20
enforcement of the Orders.

A. Background guidance provided by the Committee of Experts in its 2001=20
report as regards steps still required !!

32. In its 2001 report, the Committee of Experts observed that the=20
amendment of the Village and Towns Acts had not yet been made and expressed=
=20
the hope that these Acts would at last be brought into conformity with=20
Convention No. 29 (for the full text of the observation, see Appendix V;=20
for the texts of relevant legislation and orders, see Appendix XIII).=20
However, the Committee of Experts examined the combined effect of Order No.=
=20
1/ 99 and the Supplementing Order. The Committee of Experts concluded that=
=20
these Orders "could provide a statutory basis for ensuring compliance with=
=20
the Convention in practice, if given effect bona fide not only by the local=
=20
authorities empowered to requisition labour under the Village and Towns=20
Acts, but also by civilian and military officers entitled to call on the=20
assistance of local authorities under the Acts".

33. The Committee of Experts also examined several instructions dated 27=20
and 28 October and 1 November 2000. It observed, inter alia, that the=20
instruction dated 1 November 2000 "Prohibiting Requisition of Forced=20
Labour" was signed at the highest level, by Secretary-1 of the SPDC, and=20
addressed to the chairmen of all state and divisional peace and development=
=20
councils and prohibited them from requisitioning forced labour. The=20
Committee of Experts considered that "a bona fide application of this=20
prohibition should cover the typical case of members of the armed forces=20
who order local authorities to provide labourers, even if the manner of=20
complying with such order =96 through requisition or hiring of labourers or=
=20
otherwise =96 is left to the local authorities". The Committee further noted=
=20
that the instruction dated 1 November 2000 directed that the state and=20
divisional peace and development councils should issue necessary=20
instructions to the relevant district and township peace and development=20
councils to strictly abide by the prohibition contained in the Orders=20
concerning forced labour. That would include cases where members of the=20
armed forces order local authorities to supply labour. After careful=20
examination, the Committee of Experts concluded that "=85 clear instructions=
=20
are still required to indicate to all officials concerned, including=20
officers at all levels of the armed forces, both the kinds of tasks for=20
which the requisition of labour is prohibited, and the manner in which the=
=20
same tasks are henceforth to be performed". [16] The Committee added that=20
such prohibition should also apply "to the requisition of materials or=20
provisions of any kind to demands of money where due to the State or to a=20
municipal or town committee under relevant legislation. Furthermore, the=20
suggested text was to provide that if any state authority or its officers=20
requires labour, services, materials or provisions of any kind and for any=
=20
purpose, they must make prior budgetary arrangements to obtain these by a=20
public tender process or by providing market rates to persons wishing to=20
supply these services, materials or provisions voluntarily, or wishing to=20
offer their labour". Finally, as regards the enforcement procedure, the=20
Committee of Experts, noting that there had been no case of enforcement=20
under section 374 of the Penal Code, expressed the hope that prosecutions=20
could be brought by the law enforcement agencies on their own initiative,=20
"without waiting for complaints by the victims who may not consider it=20
expedient to denounce the 'responsible persons' to the police".

B. Steps taken with regard to the issuance of additional instructions,=20
including to the military

34. The HLT requested on a number of occasions to be provided with=20
authoritative translations of any additional instructions addressed to any=
=20
authority, including the military. At the time of drafting its report, the=
=20
HLT had only received three instructions in Burmese issued by various=20
military commanders to units under their command. Official translations of=
=20
these orders have been requested but not yet received. On the basis of=20
unofficial translations, the HLT understood that two of these orders simply=
=20
reproduced the text of the order issued by Secretary-1 dated 1 November=20
2000. They did not contain any specifications either of the kinds of tasks=
=20
for which the requisition of labour was prohibited nor the manner in which=
=20
the same tasks were henceforth to be performed. The third instruction=20
issued by the NaSaKa [17] and dated 22 July 2001 re-stated the general=20
prohibition on requisitioning of forced labour contained in the Orders but=
=20
added that if recourse to forced labour was necessary, payment should be=20
made accordingly. It would thus appear, on the basis of the information so=
=20
far provided, that the authorities have not given due attention to this=20
aspect.

C. Dissemination of information to those concerned, including the general=20
population

35. During its visit to the country, the HLT noted that, in general,=20
considerable publicity had been given to the Orders, including their=20
posting in English and Burmese on the notice-boards of VPDC [18] offices=20
and other public offices, and through large numbers of meetings arranged by=
=20
various authorities to inform both the general population and=20
administrative officials of the content of the Orders. In Rakhine State,=20
for instance, one TPDC [19] official stated that he had organized 101 such=
=20
meetings in 1999 and the same number in 2000 covering all village tracts in=
=20
his area and authorities under his competence. In several places around the=
=20
country that it visited, the HLT was presented with extensive documentary=20
evidence that such meetings had been held. Copies of the Orders have also=20
been distributed to members of the military, the NaSaKa and the police=
 force.

36. The HLT noted that there was considerable geographic variation in the=20
dissemination of the Orders as well as in the time frame in which this=20
dissemination occurred. In many cases persons met by the HLT said that they=
=20
had been informed of the Orders by foreign radio stations rather than by=20
the authorities.

37. In the areas around Dawei (Tanintharyi Division), Mawlamyine (Mon=20
State) and Hpa-an (Kayin State) visited by the HLT, there was clear=20
evidence of dissemination of the Orders. Some members of the general=20
population in these areas, however, did not have any knowledge of the=
 Orders.

38. In Lashio (northern Shan State), the HLT noted that the Orders had been=
=20
fairly widely distributed in the areas it visited, including posting on=20
boards prominently displayed by the side of the road, and on village=20
notice-boards. Members of the local authorities also indicated that they=20
had convened meetings with the local population in many areas and explained=
=20
the content of the Orders to them. In many cases, the prominently-displayed=
=20
Orders appeared new, and information from the local population indicated=20
that in most of these cases the Orders had been put up the day before the=20
HLT arrived. Many of the local people indicated that they had not=20
previously been aware of the existence of such Orders.

39. In Rakhine State, the Orders appeared to have been widely disseminated=
=20
in those areas that the HLT visited, in the two months prior to its visit.=
=20
This included public posting of the Orders in English and Burmese, and the=
=20
holding of numerous public information meetings on the subject. Members of=
=20
the authorities, the military, and the vast majority of village heads and=20
VPDC members were aware of the Orders, and most stated that they had=20
learned about the Orders soon after they were issued. Some village heads=20
and VPDC members indicated, however, that they had only become aware of the=
=20
Orders in July 2001. More than half of the general population interviewed=20
by the HLT was also aware of these Orders. Many of them had been recently=20
informed (in August and September 2001).

40. In the area around Loikaw and Demawso in Kayah State there appeared to=
=20
have been considerable dissemination of the Orders. Most people who were=20
asked about the Orders had been informed about them, often via distribution=
=20
of copies to village heads. In some cases this did not occur until July or=
=20
August 2001. In contrast, along the road between Loikaw and Taunggyi (Shan=
=20
State) and around Taunggyi town there appeared to have been no=20
dissemination of the Orders at all, and no person met by the HLT had heard=
=20
about them.

41. On the basis of information gathered by the HLT across the border in=20
Thailand there appeared to be little knowledge of, or dissemination of, the=
=20
Orders in southern Shan State and eastern parts of Kayin State. Less than=20
half of the persons interviewed had heard about the Orders, and a number of=
=20
these had heard from non-official sources or just by rumours. Few of them=20
had seen copies. There was no evidence of any dissemination of the Orders=20
in the Kayin or Shan languages even though most of the people interviewed=20
did not speak or understand Burmese well or at all.

42. Despite signs of considerable efforts being made to disseminate the=20
Orders as described above, the HLT noted that they had not been=20
disseminated at all via the mass media, including radio, television or=20
print media. Despite the objections (as to the risk of confusion arising=20
from the fact that new legislation is not normally dealt with through such=
=20
media) made during discussions with the Implementation Committee, the HLT=20
believes that further consideration should be given to this question,=20
taking into account the exceptional character of the problem. The HLT also=
=20
noted that the Orders had not been distributed in languages other than=20
English and Burmese, and that in particular the Orders had not been=20
translated into any of the other major ethnic languages spoken in the=20
country. The HLT was informed by people in different parts of the country=20
that they could not understand the Orders that were posted in their areas=20
because they did not read or understand Burmese well enough. The HLT=20
further noted that the Orders had not always been disseminated together. It=
=20
is important that this be done, since the Supplementing Order needs to be=20
read in conjunction with Order 1/ 99. This would ensure a better=20
understanding among non-experts of the rather technical content of the=
 Orders.

D. Action with regard to the enforcement of the Orders

43. Before examining the effectiveness of the Orders in terms of bringing=20
to trial those who have recourse to forced labour, the HLT wishes to=20
briefly summarise the legislative and institutional background in the=20
country, as it understood it from the meetings that it had and the texts=20
that were provided to it, focussing on the interaction between the Orders,=
=20
section 374 of the Penal Code, and the organization of the judiciary. (i)=20
Legislative and institutional background

44. Section 6 of Order No. 1/99 provides that "[ a] ny person who fails to=
=20
abide by this Order shall have action taken against him under the existing=
=20
law". Section 5 of the Supplementing Order specifies that the expression=20
"any person" includes "local authorities, members of the armed forces,=20
members of the police force and other public service personnel".=20
Furthermore, section 5 of this Order, as well as several instructions=20
issued on 27 and 28 October and 1 November 2000, provide for the=20
prosecution of responsible persons under section 374 of the Penal Code.

45. For its part, section 374 of the Penal Code makes forced labour a=20
criminal offence in the following terms: Whoever unlawfully compels any=20
person to labour against the will of that person shall [be] punished with=20
imprisonment of either description for a term which may extend to one year,=
=20
or with fine, or with both. [20]

46. The HLT had extensive discussions in order to understand how section=20
374 applied in the general context of the judicial organization of the=20
country, and to clarify certain details of the criminal procedure and the=20
respective jurisdictions of civil and military courts.

47. The present judicial system has existed in Myanmar since 1988. In=20
addition, the HLT was informed that the SPDC had promulgated two laws, in=20
June 2000 and February 2001 respectively, governing the organization of the=
=20
judiciary in the country and specifying the duties and powers of the=20
Attorney-General. These texts were provided to the HLT and are called "The=
=20
Judiciary Law, 2000" and "The Attorney-General Law, 2001".

48. Four levels of courts exist in Myanmar, at the township, district, and=
=20
state/divisional levels, and the Supreme Court. [21] The Supreme Court,=20
which is the highest court of appeal, is entrusted a nationwide=20
jurisdiction. All decisions rendered by township, district or state/=20
divisional courts on forced labour charges are appealable.

49. The Chief Justice further stated that the SPDC appointed the members of=
=20
the Supreme Court, which presently comprises 11 members. It sits in the=20
cities of Yangon and Mandalay. There is no predetermined term of office and=
=20
no security of tenure; judges could be removed by the SPDC at any time for=
=20
good reason. However, no change in the Supreme Court's composition has=20
occurred since the promulgation of The Judiciary Law in 2000. The Supreme=20
Court, in turn, forms state/ divisional, district and township courts.=20
There is no predetermined term of office for the judges comprising these=20
courts either.

50. According to Myanmar legal authorities, there is a sophisticated=20
procedure provided for concerning the prosecution of cases of forced=20
labour. However, it seems pointless to describe this procedure in detail=20
since, on the highest authority, that of the Chief Justice and the=20
Attorney-General, not a single criminal prosecution has been initiated=20
since the Orders were enacted, and this is, in the view of the HLT, by no=20
means because no instances of forced labour have occurred. On the contrary,=
=20
there have been widespread instances of forced labour of all kinds, but no=
=20
prosecutions. [22] At the most there has been occasional administrative=20
action taken against members of the authorities and the armed forces=20
involving a very few cases of violations of the Orders.

51. When it comes to punishment for forced labour offences, the Penal Code=
=20
of Myanmar provides for a maximum term of imprisonment of one year or=20
payment of a fine, or both. It does not give any indication as regards the=
=20
criteria that should be applied when determining the appropriate amount for=
=20
such a fine, but judges questioned in this regard by the HLT said that they=
=20
were vested with full discretion. The punishment of members of the military=
=20
is determined by The Defence Services Act which states that they are liable=
=20
"to suffer any punishment, other than whipping, assigned for the offence by=
=20
the law in force in the Union of Burma, or imprisonment for a term which=20
may extend to seven years, or such less punishment as is in this Act=20
mentioned" (The Defence Services Act, section 71). The lesser punishment=20
mentioned in The Defence Services Act includes, inter alia, cashiering,=20
dismissal from the service, reduction to the ranks, forfeiture of=20
seniority, service or pay and allowances, reprimand or stoppage of pay and=
=20
allowances (ibid., section 73).

(ii) The realities of enforcement

52. The HLT was also given a document prepared by the Ministry of Home=20
Affairs entitled "Action Taken on Cases For Not Abiding Order 1/ 99 and Its=
=20
Supplementary Order Issued by the Ministry of Home Affairs". Thirty-eight=20
instances where action had been taken were mentioned. A meeting was=20
specifically organized on the HLT's last day in the country in order to=20
obtain further details concerning the cases referred to in this document.=20
It appeared that all actions taken were of an administrative nature. They=20
ranged from a simple warning to dismissal or discharge of the person=20
concerned. None referred to section 374 of the Penal Code as provided for=20
in the Orders. The HLT was informed that "inquiry committees" had authority=
=20
to decide on the measures that should be imposed in case of violations of=20
the Orders. To date, these inquiry committees had deemed it more=20
appropriate to deal with alleged breaches of the Orders from an=20
administrative standpoint rather than by having recourse to criminal=20
prosecution. Out of the 38 cases, 10 occurred prior to May 1999 and=20
therefore were not covered by the Orders. All cases involved TPDC or VPDC=20
officers. A number of them dealt with allegations related to forced=20
contribution of labour, including for road construction (five cases) and=20
portering (one case), as well as contribution of money and compulsory=20
provision of produce, such as rice and beans. Others raised wrongdoings,=20
such as misuse of public funds and goods, which did not appear to fall=20
within the purview of Convention No. 29. It was apparent to the HLT that=20
this document was a totally inadequate response to any inquiry as to what=20
action had been taken to give effect to the Orders; yet no other response=20
was made, nor, it seems, could be.

53. Most members of the general population with whom the HLT met during its=
=20
visit to the country stated that they would not use the complaint procedure=
=20
as envisaged in the Orders (through the courts or the police). [23] They=20
would more likely complain to the VPDC or TPDC. Many were scared that=20
reprisals could be taken against them. In that respect, the HLT was given=20
several accounts of people being beaten, detained or otherwise punished for=
=20
earlier complaints on this or other issues. For example, in Shan State,=20
accounts were made to the HLT of serious reprisals being taken by the=20
military against those who complained about forced labour. One villager was=
=20
arrested for seven days by the military, and the villagers had to pay a=20
30,000 Kyat ransom for his release. Other villagers were allegedly beaten=20
by the military for complaining. But the most disturbing case is the one=20
previously referred to and on which the HLT decided to obtain comments from=
=20
the authorities (see paragraph 28 above). Other people met indicated that=20
there was no point in complaining to the authorities, since it was the=20
authorities themselves who were imposing forced labour. Many added that, in=
=20
any case, it would be impossible to complain, because of language=20
difficulties, cost, or distance, including the problems of restriction on=20
movement that some of them had to face.

**********************************************

END NOTES (FOOTNOTES IN ORIGINAL]

[1] ILC: Provisional Record, 89th Session, Geneva 2001, No 19, Part Three,=
=20
Appendix 5. The Understanding is reproduced in Appendix I to the present=20
report.

[2] ibid.

[3] ILC: Provisional Record, 89th Session, Geneva 2001, No. 19, Part Three,=
=20
p. 3/11.

[4] The text of the letter sent in this regard is reproduced in Appendix=
 III.

[5] The text of this letter is reproduced in Appendix IV.

[6] Chief of the ILO secretariat, Mr. Francis Maupain, accompanied by Mr.=20
Muneto Ozaki, Mr. Rueben Dudley, Ms. Anne-Marie La Rosa, Mr. Richard=20
Horsey, Ms. Marie-Anne Plantard and Ms. Tracy Murphy.

[7] Before departing Bangkok for Yangon, the HLT issued a press release=20
stating that it was beginning its visit to Myanmar and referring to the=20
solemn commitment made by the authorities (see para. 4 above) and to=20
certain precautionary measures taken by the HLT as regards persons it might=
=20
wish to meet. The HLT declined to have any further dealings with the media=
=20
until its report had been finalized.

[8] A detailed programme of the first week can be found in Appendix VI, s.=
=20
(b).

[9] See Appendix VI, s. (c).

[10] See Appendix VII.

[11] "Village tract" is an administrative structure consisting of a group=20
of villages. An explanation of Myanmar terms and acronyms used in this=20
report, as well as a list of alternative spellings of Myanmar place names,=
=20
can be found in Appendix VIII.

[12] A detailed programme of the wrap up and debriefing can be found in=20
Appendix VI, s.(d).

[13] A detailed programme of the HLT's visit across the border in Thailand=
=20
can be found in Appendix VI, s.(d).

[14] In two cases, however, the HLT witnessed attempts by the local escort=
=20
to ask villagers what they had been telling the HLT. Representations were=20
immediately made.

[15] The information received by the HLT during the last week could be=20
divided into the following categories: (i) direct interviews with=20
individuals claiming to have experienced or observed forced labour; (ii)=20
written statements of persons who obtained statements from others claiming=
=20
to have experienced or observed forced labour; (iii) documents containing=20
relevant background information; (iv) originals of orders from military or=
=20
paramilitary units to villages.

16 The suggested prohibition should include but not be limited to the=20
requisition of the following labour or services, regardless of whether or=20
not payment is made for the said labour or services: =96 portering for the=
=20
military (or other military/ paramilitary groups, for military campaigns or=
=20
regular patrols);

=96 construction or repair of military camp/ facilities;
=96 other support for camps (such as guides, messengers, cooks, cleaners,=
 etc.);
=96 income generation by individuals or groups (including work in army-owned=
=20
agricultural and industrial projects);
=96 national or local infrastructure projects (including roads, railways,=20
dams, etc.);
=96 cleaning/ beautification of rural or urban areas.

[17] A border security force under the authority of the responsible=20
regional commander.

[18] Village-tract Peace and Development Council.

[19] Township Peace and Development Council.

[20] The text quoted is taken directly from the Penal Code of Myanmar.

[21] A diagram showing the court structure of Myanmar is appended in=20
Appendix XII.

[22] According to explanations and relevant texts provided to the HLT, a=20
complaint, presented either to the police or to the courts, by the person=20
who was compelled to work or a close family member, is necessary for a case=
=20
to be opened in respect of forced labour. Forced labour being a=20
non-cognizable offence in Myanmar, no investigation can be initiated by the=
=20
police without an order issued by a Magistrate (see Code of Criminal=20
Procedure, ss. 4( n) and 155). The instruction dated 27 October 2000=20
addressed by the Director-General of the Police Force to all units of the=20
police force follows similar lines by ordering police stations to which=20
"any affected person files a verbal or written complaint =85 of having been=
=20
forced to contribute labour" to record the complaint "in Forms A and B"=20
(which were provided to the HLT) and "send the accused for prosecution=20
under section 374 of the Penal Code". Afterwards, any court in Myanmar can=
=20
take cognizance of offences related to forced labour. If the complaint=20
concerns a police officer, the case should normally be tried by a criminal=
=20
court (The People's Police Force Maintenance of Discipline Law, s. 26). If=
=20
it is against a member of the army, the case would normally be examined by=
=20
a court-martial. However, criminal courts having also jurisdiction in cases=
=20
of forced labour, they can request that the proceedings be instituted=20
before themselves (The Defence Services Act, ss. 71, 128, 129( 1)). In=20
cases of a dispute in jurisdiction, it will be for the President of the=20
Union of Myanmar to determine before what court =96 court-martial or=
 criminal=20
court =96 the proceedings can be initiated (ibid., s. 129( 2)).

[23] During the meeting with the Regional Commander in Dawei, one of the=20
officials accompanying the HLT also read a short prepared statement which=20
explained that local people were reluctant to complain to courts because it=
=20
was expensive and time-consuming. People preferred to make petitions=20
directly to influential people, and he gave as an example the case of a=20
group of teachers who had complained to Secretary-1 because one of them had=
=20
been requisitioned for forced labour.

END OF PART 1


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*************************************<br><br>
INTERNATIONAL LABOUR OFFICE GB. 282/4 282nd Session <br>
Governing Body Geneva, November 2001 <br>
FOURTH ITEM ON THE AGENDA <br><br>
Developments concerning the question of the observance by the Government
of Myanmar of the Forced Labour Convention, 1930 (No. 29) <br><br>
Report of the High-Level Team <br><br>
Contents <br><br>
I. Establishment of the High-Level Team... 1 <br><br>
II. Mandate of the HLT... 2 <br><br>
III. Programme and method of assessment and its limitations... 3
<br><br>
III. 1. Programme... 3 <br><br>
III. 2. Method of assessment and its limitations... 5 <br><br>
IV. Findings... 7 <br><br>
IV. 1. Findings as regards formal steps taken pursuant to the Orders...7
<br><br>
A. Background guidance provided by the Committee of Experts in its 2001
report as regards steps still required... 7 <br><br>
B. Steps taken with regard to the issuance of additional instructions,
including to the military... 8 <br><br>
C. Dissemination of information to those concerned, including the general
population... 9 <br><br>
D. Action with regard to the enforcement of the Orders... 10 <br><br>
(i) Legislative and institutional background... 10 <br><br>
(ii) The realities of enforcement... 12 <br><br>
IV. 2. Findings as regards the impact on the realities of forced labour
of the steps taken to implement the Orders... 13 <br><br>
V. Identification of obstacles to the more effective eradication of
forced labour... 14 <br><br>
V. 1. The &quot;self-reliance&quot; policy of the army... 14 V. 2. The
uncertainty as regards substitute financial/ practical arrangements... 15
<br><br>
V. 3. Institutional obstacles... 16 <br><br>
VI. The way forward: How to overcome the obstacles and ensure sustainable
progress towards the elimination of forced labour in Myanmar... 17
<br><br>
VI. 1. Economic modernization... 17 <br><br>
VI. 2. Consistent political will... 19 <br><br>
VI. 3. The engagement of the international community... 20 <br><br>
Conclusions... 21 <br><br>
<br>
I. Establishment of the High-Level Team <br><br>
1. According to the &quot;Understanding on an ILO Objective
Assessment&quot; reached by the Director-General's representatives and
the Government of Myanmar on 19 May 2001, [1]&nbsp; the Government of
Myanmar (&quot; the Government&quot;) agreed to receive a High-Level Team
(&quot; HLT&quot;) to carry out an objective assessment with respect to
the practical implementation and actual impact of the framework of
legislative, executive and administrative measures which the Government
had adopted at the end of October and the beginning of November 2000
following a previous ILO Technical Cooperation Mission. This
Understanding has to be read in the light of a previous exchange of
letters between the Director-General and the competent authorities. This
correspondence makes it clear that, despite its earlier decision to cease
cooperation with the ILO, the Government accepted this objective
assessment since, as pointed by the Director-General in his letter of 1
March, [2] they could not expect to receive credit for their stated aim
of implementing measures designed to eradicate forced labour in the
absence of an objective assessment which the ILO alone was in a position
to provide. This development was acknowledged by the Committee of Experts
on the Application of Conventions and Recommendations of the
International Labour Conference at its last session in June 2001, [3] and
the objective assessment was tentatively scheduled to take place during
the second half of September and the beginning of October 2001.=20
<br><br>
2. Contacts were initiated in July by the Director-General with a view to
establishing the HLT. The International Labour Office also had a number
of consultations during the summer with organizations of the UN system
and international NGOs operating in Myanmar with a view to identifying
places which the HLT might consider visiting and, as far as possible and
appropriate, seeking their logistical assistance and support on the spot.
<br><br>
3. After informing the Officers of the Governing Body, the
Director-General announced the composition of the HLT on 20 August 2001.
It was as follows: The Right Honourable Sir Ninian Stephen, Ms. Nieves
Roldan-Confesor, Mr. Kulatilaka A. P. Ranasinghe, Mr. Jerzy Makarczyk.
(Biographical information of the members of the HLT is provided in
Appendix II.) <br><br>
4. During a briefing session in Geneva on 30 and 31 August 2001, the HLT
had a first tentative discussion of its programme and methods of work.
Taking into account the weather conditions prevailing in the country it
was decided that the HLT would arrive in Yangon on Monday 17 September
and complete its visit on the evening of Saturday 6 October, after three
full weeks in the country. The Myanmar authorities were agreeable to this
schedule. At the close of this briefing session, the HLT decided to seek
confirmation of a solemn commitment on the part of the authorities of
Myanmar which would be made, &quot;through [the HLT] to the international
community that no action of any kind will be taken against persons or
their families or organizations who may directly or indirectly contribute
information to the HLT or to the discharge of its mandate, nor indeed
seek to identify such persons&quot;. [4] This confirmation was received
on 7 September from the Permanent Representative of Myanmar to the United
Nations, Ambassador U Mya Than, acting on behalf of the Minister for
Foreign Affairs. [5] <br><br>
5. Notwithstanding this commitment, the HLT gave particular attention to
the precautionary measures that it should take as regards persons that it
might wish to meet. First, it was decided that the HLT should wherever
possible have recourse to international and independent interpreters.
Second, the HLT also discussed the methods to be used in gathering
information and decided, inter alia, that all data that could identify
persons met would be kept confidential. The persons met should be
informed of this and of the solemn commitment undertaken by the
Government. When appropriate, the HLT could insist on the importance of
telling the truth. <br><br>
6. The members of the HLT and the ILO staff assigned to support them [6]
arrived in Bangkok on Saturday, 15 September, and had a full day
preparatory meeting on 16 September to review the arrangements made for
the visit, establish their programme for the first week in Yangon, and
make tentative plans for the visits of the HLT to the field during the
two following weeks. It benefited in particular in that respect from the
valuable assistance of the &quot;facilitator&quot; agreed upon by the
authorities and the Director-General in accordance with paragraph 4 of
the abovementioned Understanding, Mr. Leon de Riedmatten. <br><br>
<br>
II. Mandate of the HLT <br><br>
7. As indicated above, the mandate of the HLT was to carry out an
objective assessment of the practical implementation and actual impact of
the framework of legislative, executive and administrative measures taken
by the authorities, taking into account the relevant observation made by
the Committee of Experts at its last meeting (see paragraphs 32 and 33
below and Appendix V). <br><br>
8. The HLT considered that its task extended beyond the analysis of the
formal steps taken by the Government to implement the orders concerning
forced labour, that is, Order 1/ 99 of 14 May 1999 and Order
Supplementing Order 1/ 99 of 27 October 2000 (hereinafter referred to
collectively as &quot;the Orders&quot;). The reference in the
Understanding to the &quot;impact&quot; of the Orders made it clear that
it was also to assess to what extent the new Orders had made, or were
capable of making, a difference to the realities of forced labour
described in the report of the Commission of Inquiry. This in turn
implied that the HLT should, as appropriate, try to identify the
obstacles to the full eradication of forced labour, and investigate any
possible ways in which they could be overcome. On the occasion of its
meeting on 21 September with Secretary-1 of the State Peace and
Development Council (SPDC), Lt.-Gen. Khin Nyunt, the HLT indeed made a
proposal along these lines in response to his suggestion that the HLT
should inform him of any violations it might come across. <br><br>
9. It is on this basis that the members of the HLT accepted the task
entrusted to them. <br><br>
<br>
III. Programme and method of assessment and its limitations <br><br>
10. The framework provided by the Understanding ensured that the HLT
would have &quot;complete discretion&quot; to establish and implement its
programme of work, meetings and visits. The Government fully honoured its
obligations under the Understanding not to interfere with the work of the
HLT, which expresses its appreciation of the excellent arrangements which
had been made by the Government to assist it in the discharge of its
mandate. <br><br>
III. 1. Programme <br><br>
11. The first week of the HLT's visit to the country (17-22 September
2001) was spent in Yangon, [7] in an intensive programme of meetings with
a view to: (i) obtaining general background information; (ii) assessing
the steps taken by the authorities in Yangon to implement the Orders; and
(iii) seeking further information and advice before finalizing its
programme for the two following weeks of field visits designed to assess
the real impact of the measures taken. In this context, the HLT had a
lengthy meeting with the Implementation Committee, made up of
representatives from all ministries involved in the implementation of the
Orders. It also had other meetings with a number of ministers, deputy
ministers and senior officials (including the Ministers for Home Affairs,
Foreign Affairs, Labour, Social Welfare, a Minister at the Prime
Minister's Office, the Deputy Minister for Foreign Affairs, the Chief
Justice, and the Attorney-General). As indicated above, it also had an
important meeting with Secretary-1 of the SPDC, Lt.-Gen. Khin Nyunt.
Substantial discussions were also held with the leadership of the
National League for Democracy (NLD). The HLT was received privately by
Daw Aung San Suu Kyi, with whom it had already established contact during
its initial session in Geneva. It also met with the members of the
diplomatic community, the United Nations Country Team, the international
and national business communities, local and international NGOs, the
ICRC, ceasefire groups, ethnic nationalities representatives of the
Committee Representing People's Parliament, as well as religious leaders.
[8]<br><br>
12. The two following weeks were devoted to field trips to various parts
of the country. On the occasion of its briefing in Geneva, the HLT had
agreed that in order to make the best possible use of the limited time
available it would travel by chartered plane (hired in Bangkok) to reach
areas not necessarily covered by regular commercial flights, and to then
proceed by road with four-wheel-drive vehicles, or by boat where
necessary. It had also decided to split into two groups to cover as many
areas as possible. Each group was accompanied by two independent,
international interpreters. The two groups met again in Yangon in the
middle of these field trips (on 28 and 29 September) to compare their
respective findings and experiences. A full itinerary of the HLT's field
trips is appended, [9] as well as a map of the country. [10]<br><br>
13. These field trips made possible meetings with authorities at the
state/ division, district, township and village-tract [11] levels. The
two groups made a point of always visiting regional and local military
commanders whose role, as will be seen below, is fundamental in the
implementation of the Orders. They also had many informative meetings
with religious leaders of different faiths and denominations, as well as
UN, NGO and ICRC representatives. <br><br>
14. A special and unique value of these field trips was that they enabled
the members of the HLT to conduct many random interviews in the absence
of representatives of the Government with individuals in the streets of
towns and villages, in people's houses, in teashops and in other public
places, as the opportunities presented themselves. <br><br>
15. After completion of the field trips, the HLT returned to Yangon and
on Friday, 5 October, met again with the Implementation Committee to seek
clarification on some of the issues which it had identified during its
visit. It was also received by the Chairman of the SPDC, Senior General
Than Shwe, accompanied by his deputy, General Maung Aye, and Secretary-1
of the SPDC, Lt.-Gen. Khin Nyunt. A summary of the introduction by Senior
General Than Shwe and the reply by Sir Ninian Stephen on behalf of the
HLT appears as Appendix IX. The HLT then met for a second time with Daw
Aung San Suu Kyi. Before leaving Yangon, it had a final meeting with the
members of the diplomatic community, the United Nations Country Team, and
the business community. [12]<br><br>
16. The HLT considered that the information collected during these three
weeks in Myanmar would usefully be complemented by some meetings and
interviews across the border in Thailand with persons who claimed to have
been recently subject to forced labour, to be organized with the
assistance of NGOs working in this area. Consistent with its concern to
ensure complete transparency of its programme and methods of work, the
HLT had, at its meeting on 5 October with the Chairman of the SPDC,
Senior General Than Shwe, informed him of its intention to do this and of
its determination to assess such additional information as it might
receive with the same critical judgement as it had exercised during its
visit to Myanmar. [13] <br><br>
17. The HLT had to forgo the possibility of also conducting meetings and
interviews across the border in Bangladesh. It did, however, receive some
very recent information covering the period from mid-July to 2 October
2001 from two researchers stationed in Bangladesh who met the HLT in
Bangkok on Sunday, 7 October. This information provided some useful
complementary impressions to those the HLT had obtained in Rakhine State,
as well as some interesting feedback concerning its visit. <br><br>
III. 2. Method of assessment and its limitations <br><br>
18. The HLT was able to collect an impressive mass of information and
documentation (see Appendix X) as well as conducting many interviews (see
Appendix VI). As regards interviews, care was taken to ensure the
greatest possible consistency in the work of the two groups and the
comparability of their findings. To that end, the HLT had established a
standard checklist of questions, adjusted to the different types of
interviews (that is, inter alia, with the military, the authorities and
villagers in general). <br><br>
19. Despite the exceptional abundance and diversity of the information
received, the limitations of the exercise must however be recognized,
limitations relating to geographical coverage as well as to the
spontaneity and reliability of the information provided in interviews and
the extent to which people felt safe to be frank in those interviews.
<br><br>
20. The geographical limitations were dictated by the time and resources
available to the HLT. Taking into consideration information received from
a number of sources, including international NGOs and diplomats, the HLT
had made a selection of places it wished to visit. It did not select only
those places where, on the basis of allegations received, the situation
appeared to be most serious, but attempted to gain a more balanced
overview by selecting a range of different areas =96 some ceasefire areas,
some non-ceasefire areas, areas with and without significant
international presence, and towns and cities as well as more remote
areas. Because most allegations that the HLT received related to areas
distant from the central part of Myanmar, it tended to concentrate on
those areas, although the Implementation Committee had suggested that the
HLT also visit certain specific projects in central parts of the country.
On the occasion of the second visit that the HLT paid to Daw Aung San Suu
Kyi, she expressed some regret that the HLT had not visited this central
part of the country. She and the NLD in fact provided the HLT with two
documents containing a number of allegations of forced labour occurring
in these central areas. <br><br>
21. As previously noted, the HLT enjoyed full freedom to visit the places
that it wished in Myanmar, and none of their requests was turned down on
the security grounds referred to in the Understanding. On a couple of
occasions, however, when ambushes had recently taken place (for instance
near Dawei or on the road between Loikaw and Taunggyi) the authorities
insisted on the presence of a military escort for its protection. In
addition, logistical assistance in the form of a generally discreet
escort was available to each group as it proceeded with its visit, the
escort not however accompanying the HLT into particular towns or villages
where it conducted interviews, but waiting at the outskirts. [14]
<br><br>
22. The conditions in which the programme was established made it
difficult for the authorities to anticipate the HLT's itinerary and the
specific places it would decide to visit. However, for the purpose of
organizing internal flights and landing with a chartered plane, 48 hours'
notice had to be given. <br><br>
23. It was obvious that the visit had nevertheless been the object of a
very intensive preparation by the authorities for the purpose of giving
as favourable an impression as possible of the forced labour situation.
Preparatory work apparently started as early as the beginning of the
summer (soon after the conclusion of the Understanding at the end of May
2001). But it seems to have been reactivated on a more targeted basis as
the itinerary of each of the two groups was made known or became evident.
Thus, on several occasions copies of the Orders displayed were fresh and
occasionally villagers said that they had been posted a couple of days
before. It must, at the same time, be stated that despite numerous
reports received from a number of sources, according to which there had
been an orchestrated campaign to collect signatures to document that
forced labour no longer existed, the HLT was never confronted with such
obviously fabricated evidence. <br><br>
24. As regards individual interviews, the HLT on occasions felt that
despite the assurances it provided about the commitment given by the
authorities and the confidentiality of the interviews, the persons being
interviewed did not feel completely free to speak and sometimes even
explicitly said so. Advice received, in particular from the NLD and
religious leaders, however, was that despite this limitation the effort
to obtain first hand information from the people directly through
interviews was worthwhile because &quot;there existed courageous
people&quot; in Myanmar. On balance, the HLT was impressed by the
readiness of individuals to provide it with information. <br><br>
25. The limitations resulting from psychological or other types of
pressure to which persons might have been subjected in Myanmar obviously
do not apply to the information collected outside its borders. [15] But
this information suffers from other limitations. Interviews by persons
other than the HLT itself need to be assessed differently from those
which the HLT undertook directly. Because interviewees were selected by
the interviewers, whose methods were not under the direct control or
supervision of the HLT, the information that the HLT obtained from
persons that it met across the border also needs to be distinguished from
the &quot;random&quot; information received within Myanmar. First, the
HLT was only able to meet outside Myanmar with those persons approached
by the various NGO organizations concerned through their networks, and
who were willing and able to travel to the locations visited by the HLT.
Second, they reflect the realities of some parts of the country nearer to
the border where in many cases there are accounts of ongoing insurgency.
<br><br>
26. Whether collected inside or outside the country, this information
obviously does not necessarily constitute &quot;evidence&quot; in the
legal sense of the word. The opportunities available to verify the
authenticity and genuineness of the information were limited. For obvious
reasons relating to the protection of the anonymity of those concerned
and consistent with the specific commitment made to them and to the NGOs,
the transcripts have to remain confidential unless those concerned agreed
to them being made public. While the strict provisions of the law
relating to the reception of evidence are not applicable, the HLT was
guided by standards of what is just, fair and reasonable. <br><br>
27. However, the task of the HLT was not to pass judgement or to
establish judicial truth but rather to try to establish objectively a
trend in the evolution of the practice of forced labour, as compared with
previously established facts. For that purpose all the information and
documentation received was of great help to the HLT in assessing the
situation. <br><br>
28. In one case, however, the HLT considered that it was both safe and
necessary to investigate more thoroughly the reliability of a statement
reported in an email from an NGO, the Shan Human Rights Foundation. This
information reached the HLT shortly before it left Yangon (see Appendix
XI). It was then subsequently referred to during an interview across the
Shan State border in Thailand, by a person claiming to have personal
knowledge of the event. The HLT considered first that the information was
already in the public domain, and if it was true, the unfortunate
deceased victims did not have anything more to fear. Second, the tragic
outcome was allegedly the direct result of a complaint lodged by
villagers against a Regional Commander following a public announcement
specifically made in that region by Secretary-1, Lt.-Gen. Khin Nyunt,
about the illegality of forced labour. The day after receiving this
testimony the HLT thus decided to send a letter to Senior General Than
Shwe to try to obtain clarification of this case before the finalization
of the report (this letter together with the reply signed by Secretary-1
which was received by the HLT at the time of signing this report is
reproduced in Appendix XI). <br><br>
29. As reflected in the summary in Appendix VI, section (a), the HLT was
able to conduct seven meetings with various NGOs and other groups and 96
interviews with individuals during its additional week of investigation,
across the border in Thailand. In the course of individual interviews,
orders to heads of villages emanating from various military or
paramilitary groups and requisitioning various forms of forced labour
were handed to the HLT. Translations of these documents have been carried
out as far as possible, but it was obviously impossible to systematically
establish their authenticity, although many of them appeared to be
originals, bearing the stamps of the military groups concerned.=20
<br><br>
30. The question arises as to what should be done with the transcripts of
the interviews and written documents and other material received during
these interviews. In view of the commitment made to those concerned, the
HLT recommends that these extremely valuable materials, duly expurgated
of identifying information, should be kept in the archives of the ILO and
that in due course the Governing Body should consider if, and under what
conditions, this exceptional source of information could be opened to the
public and academic researchers. <br><br>
<br>
IV. Findings <br><br>
IV. 1. Findings as regards formal steps taken pursuant to the Orders
<br><br>
31. Taking as a starting point the observation of the Committee of
Experts in its 2001 report, the HLT has examined the steps taken with
regard to the issuance of additional instructions, including to the
military, the measures taken in order to disseminate the Orders to those
concerned, including the general population, and, finally, any action
relating to the enforcement of the Orders. <br><br>
A. Background guidance provided by the Committee of Experts in its 2001
report as regards steps still required !! <br><br>
32. In its 2001 report, the Committee of Experts observed that the
amendment of the Village and Towns Acts had not yet been made and
expressed the hope that these Acts would at last be brought into
conformity with Convention No. 29 (for the full text of the observation,
see Appendix V; for the texts of relevant legislation and orders, see
Appendix XIII). However, the Committee of Experts examined the combined
effect of Order No. 1/ 99 and the Supplementing Order. The Committee of
Experts concluded that these Orders &quot;could provide a statutory basis
for ensuring compliance with the Convention in practice, if given effect
bona fide not only by the local authorities empowered to requisition
labour under the Village and Towns Acts, but also by civilian and
military officers entitled to call on the assistance of local authorities
under the Acts&quot;.<br><br>
33. The Committee of Experts also examined several instructions dated 27
and 28 October and 1 November 2000. It observed, inter alia, that the
instruction dated 1 November 2000 &quot;Prohibiting Requisition of Forced
Labour&quot; was signed at the highest level, by Secretary-1 of the SPDC,
and addressed to the chairmen of all state and divisional peace and
development councils and prohibited them from requisitioning forced
labour. The Committee of Experts considered that &quot;a bona fide
application of this prohibition should cover the typical case of members
of the armed forces who order local authorities to provide labourers,
even if the manner of complying with such order =96 through requisition or
hiring of labourers or otherwise =96 is left to the local
authorities&quot;. The Committee further noted that the instruction dated
1 November 2000 directed that the state and divisional peace and
development councils should issue necessary instructions to the relevant
district and township peace and development councils to strictly abide by
the prohibition contained in the Orders concerning forced labour. That
would include cases where members of the armed forces order local
authorities to supply labour. After careful examination, the Committee of
Experts concluded that &quot;=85 clear instructions are still required to
indicate to all officials concerned, including officers at all levels of
the armed forces, both the kinds of tasks for which the requisition of
labour is prohibited, and the manner in which the same tasks are
henceforth to be performed&quot;. [16] The Committee added that such
prohibition should also apply &quot;to the requisition of materials or
provisions of any kind to demands of money where due to the State or to a
municipal or town committee under relevant legislation. Furthermore, the
suggested text was to provide that if any state authority or its officers
requires labour, services, materials or provisions of any kind and for
any purpose, they must make prior budgetary arrangements to obtain these
by a public tender process or by providing market rates to persons
wishing to supply these services, materials or provisions voluntarily, or
wishing to offer their labour&quot;. Finally, as regards the enforcement
procedure, the Committee of Experts, noting that there had been no case
of enforcement under section 374 of the Penal Code, expressed the hope
that prosecutions could be brought by the law enforcement agencies on
their own initiative, &quot;without waiting for complaints by the victims
who may not consider it expedient to denounce the 'responsible persons'
to the police&quot;. <br><br>
B. Steps taken with regard to the issuance of additional instructions,
including to the military <br><br>
34. The HLT requested on a number of occasions to be provided with
authoritative translations of any additional instructions addressed to
any authority, including the military. At the time of drafting its
report, the HLT had only received three instructions in Burmese issued by
various military commanders to units under their command. Official
translations of these orders have been requested but not yet received. On
the basis of unofficial translations, the HLT understood that two of
these orders simply reproduced the text of the order issued by
Secretary-1 dated 1 November 2000. They did not contain any
specifications either of the kinds of tasks for which the requisition of
labour was prohibited nor the manner in which the same tasks were
henceforth to be performed. The third instruction issued by the NaSaKa
[17] and dated 22 July 2001 re-stated the general prohibition on
requisitioning of forced labour contained in the Orders but added that if
recourse to forced labour was necessary, payment should be made
accordingly. It would thus appear, on the basis of the information so far
provided, that the authorities have not given due attention to this
aspect. <br><br>
C. Dissemination of information to those concerned, including the general
population <br><br>
35. During its visit to the country, the HLT noted that, in general,
considerable publicity had been given to the Orders, including their
posting in English and Burmese on the notice-boards of VPDC [18] offices
and other public offices, and through large numbers of meetings arranged
by various authorities to inform both the general population and
administrative officials of the content of the Orders. In Rakhine State,
for instance, one TPDC [19] official stated that he had organized 101
such meetings in 1999 and the same number in 2000 covering all village
tracts in his area and authorities under his competence. In several
places around the country that it visited, the HLT was presented with
extensive documentary evidence that such meetings had been held. Copies
of the Orders have also been distributed to members of the military, the
NaSaKa and the police force. <br><br>
36. The HLT noted that there was considerable geographic variation in the
dissemination of the Orders as well as in the time frame in which this
dissemination occurred. In many cases persons met by the HLT said that
they had been informed of the Orders by foreign radio stations rather
than by the authorities. <br><br>
37. In the areas around Dawei (Tanintharyi Division), Mawlamyine (Mon
State) and Hpa-an (Kayin State) visited by the HLT, there was clear
evidence of dissemination of the Orders. Some members of the general
population in these areas, however, did not have any knowledge of the
Orders. <br><br>
38. In Lashio (northern Shan State), the HLT noted that the Orders had
been fairly widely distributed in the areas it visited, including posting
on boards prominently displayed by the side of the road, and on village
notice-boards. Members of the local authorities also indicated that they
had convened meetings with the local population in many areas and
explained the content of the Orders to them. In many cases, the
prominently-displayed Orders appeared new, and information from the local
population indicated that in most of these cases the Orders had been put
up the day before the HLT arrived. Many of the local people indicated
that they had not previously been aware of the existence of such Orders.
<br><br>
39. In Rakhine State, the Orders appeared to have been widely
disseminated in those areas that the HLT visited, in the two months prior
to its visit. This included public posting of the Orders in English and
Burmese, and the holding of numerous public information meetings on the
subject. Members of the authorities, the military, and the vast majority
of village heads and VPDC members were aware of the Orders, and most
stated that they had learned about the Orders soon after they were
issued. Some village heads and VPDC members indicated, however, that they
had only become aware of the Orders in July 2001. More than half of the
general population interviewed by the HLT was also aware of these Orders.
Many of them had been recently informed (in August and September 2001).
<br><br>
40. In the area around Loikaw and Demawso in Kayah State there appeared
to have been considerable dissemination of the Orders. Most people who
were asked about the Orders had been informed about them, often via
distribution of copies to village heads. In some cases this did not occur
until July or August 2001. In contrast, along the road between Loikaw and
Taunggyi (Shan State) and around Taunggyi town there appeared to have
been no dissemination of the Orders at all, and no person met by the HLT
had heard about them. <br><br>
41. On the basis of information gathered by the HLT across the border in
Thailand there appeared to be little knowledge of, or dissemination of,
the Orders in southern Shan State and eastern parts of Kayin State. Less
than half of the persons interviewed had heard about the Orders, and a
number of these had heard from non-official sources or just by rumours.
Few of them had seen copies. There was no evidence of any dissemination
of the Orders in the Kayin or Shan languages even though most of the
people interviewed did not speak or understand Burmese well or at all.
<br><br>
42. Despite signs of considerable efforts being made to disseminate the
Orders as described above, the HLT noted that they had not been
disseminated at all via the mass media, including radio, television or
print media. Despite the objections (as to the risk of confusion arising
from the fact that new legislation is not normally dealt with through
such media) made during discussions with the Implementation Committee,
the HLT believes that further consideration should be given to this
question, taking into account the exceptional character of the problem.
The HLT also noted that the Orders had not been distributed in languages
other than English and Burmese, and that in particular the Orders had not
been translated into any of the other major ethnic languages spoken in
the country. The HLT was informed by people in different parts of the
country that they could not understand the Orders that were posted in
their areas because they did not read or understand Burmese well enough.
The HLT further noted that the Orders had not always been disseminated
together. It is important that this be done, since the Supplementing
Order needs to be read in conjunction with Order 1/ 99. This would ensure
a better understanding among non-experts of the rather technical content
of the Orders. <br><br>
D. Action with regard to the enforcement of the Orders <br><br>
43. Before examining the effectiveness of the Orders in terms of bringing
to trial those who have recourse to forced labour, the HLT wishes to
briefly summarise the legislative and institutional background in the
country, as it understood it from the meetings that it had and the texts
that were provided to it, focussing on the interaction between the
Orders, section 374 of the Penal Code, and the organization of the
judiciary. (i) Legislative and institutional background <br><br>
44. Section 6 of Order No. 1/99 provides that &quot;[ a] ny person who
fails to abide by this Order shall have action taken against him under
the existing law&quot;. Section 5 of the Supplementing Order specifies
that the expression &quot;any person&quot; includes &quot;local
authorities, members of the armed forces, members of the police force and
other public service personnel&quot;. Furthermore, section 5 of this
Order, as well as several instructions issued on 27 and 28 October and 1
November 2000, provide for the prosecution of responsible persons under
section 374 of the Penal Code.<br><br>
45. For its part, section 374 of the Penal Code makes forced labour a
criminal offence in the following terms: Whoever unlawfully compels any
person to labour against the will of that person shall [be] punished with
imprisonment of either description for a term which may extend to one
year, or with fine, or with both. [20] <br><br>
46. The HLT had extensive discussions in order to understand how section
374 applied in the general context of the judicial organization of the
country, and to clarify certain details of the criminal procedure and the
respective jurisdictions of civil and military courts. <br><br>
47. The present judicial system has existed in Myanmar since 1988. In
addition, the HLT was informed that the SPDC had promulgated two laws, in
June 2000 and February 2001 respectively, governing the organization of
the judiciary in the country and specifying the duties and powers of the
Attorney-General. These texts were provided to the HLT and are called
&quot;The Judiciary Law, 2000&quot; and &quot;The Attorney-General Law,
2001&quot;. <br><br>
48. Four levels of courts exist in Myanmar, at the township, district,
and state/divisional levels, and the Supreme Court. [21] The Supreme
Court, which is the highest court of appeal, is entrusted a nationwide
jurisdiction. All decisions rendered by township, district or state/
divisional courts on forced labour charges are appealable. <br><br>
49. The Chief Justice further stated that the SPDC appointed the members
of the Supreme Court, which presently comprises 11 members. It sits in
the cities of Yangon and Mandalay. There is no predetermined term of
office and no security of tenure; judges could be removed by the SPDC at
any time for good reason. However, no change in the Supreme Court's
composition has occurred since the promulgation of The Judiciary Law in
2000. The Supreme Court, in turn, forms state/ divisional, district and
township courts. There is no predetermined term of office for the judges
comprising these courts either. <br><br>
50. According to Myanmar legal authorities, there is a sophisticated
procedure provided for concerning the prosecution of cases of forced
labour. However, it seems pointless to describe this procedure in detail
since, on the highest authority, that of the Chief Justice and the
Attorney-General, not a single criminal prosecution has been initiated
since the Orders were enacted, and this is, in the view of the HLT, by no
means because no instances of forced labour have occurred. On the
contrary, there have been widespread instances of forced labour of all
kinds, but no prosecutions. [22] At the most there has been occasional
administrative action taken against members of the authorities and the
armed forces involving a very few cases of violations of the Orders.
<br><br>
51. When it comes to punishment for forced labour offences, the Penal
Code of Myanmar provides for a maximum term of imprisonment of one year
or payment of a fine, or both. It does not give any indication as regards
the criteria that should be applied when determining the appropriate
amount for such a fine, but judges questioned in this regard by the HLT
said that they were vested with full discretion. The punishment of
members of the military is determined by The Defence Services Act which
states that they are liable &quot;to suffer any punishment, other than
whipping, assigned for the offence by the law in force in the Union of
Burma, or imprisonment for a term which may extend to seven years, or
such less punishment as is in this Act mentioned&quot; (The Defence
Services Act, section 71). The lesser punishment mentioned in The Defence
Services Act includes, inter alia, cashiering, dismissal from the
service, reduction to the ranks, forfeiture of seniority, service or pay
and allowances, reprimand or stoppage of pay and allowances (ibid.,
section 73). <br><br>
(ii) The realities of enforcement <br><br>
52. The HLT was also given a document prepared by the Ministry of Home
Affairs entitled &quot;Action Taken on Cases For Not Abiding Order 1/ 99
and Its Supplementary Order Issued by the Ministry of Home Affairs&quot;.
Thirty-eight instances where action had been taken were mentioned. A
meeting was specifically organized on the HLT's last day in the country
in order to obtain further details concerning the cases referred to in
this document. It appeared that all actions taken were of an
administrative nature. They ranged from a simple warning to dismissal or
discharge of the person concerned. None referred to section 374 of the
Penal Code as provided for in the Orders. The HLT was informed that
&quot;inquiry committees&quot; had authority to decide on the measures
that should be imposed in case of violations of the Orders. To date,
these inquiry committees had deemed it more appropriate to deal with
alleged breaches of the Orders from an administrative standpoint rather
than by having recourse to criminal prosecution. Out of the 38 cases, 10
occurred prior to May 1999 and therefore were not covered by the Orders.
All cases involved TPDC or VPDC officers. A number of them dealt with
allegations related to forced contribution of labour, including for road
construction (five cases) and portering (one case), as well as
contribution of money and compulsory provision of produce, such as rice
and beans. Others raised wrongdoings, such as misuse of public funds and
goods, which did not appear to fall within the purview of Convention No.
29. It was apparent to the HLT that this document was a totally
inadequate response to any inquiry as to what action had been taken to
give effect to the Orders; yet no other response was made, nor, it seems,
could be. <br><br>
53. Most members of the general population with whom the HLT met during
its visit to the country stated that they would not use the complaint
procedure as envisaged in the Orders (through the courts or the police).
[23] They would more likely complain to the VPDC or TPDC. Many were
scared that reprisals could be taken against them. In that respect, the
HLT was given several accounts of people being beaten, detained or
otherwise punished for earlier complaints on this or other issues. For
example, in Shan State, accounts were made to the HLT of serious
reprisals being taken by the military against those who complained about
forced labour. One villager was arrested for seven days by the military,
and the villagers had to pay a 30,000 Kyat ransom for his release. Other
villagers were allegedly beaten by the military for complaining. But the
most disturbing case is the one previously referred to and on which the
HLT decided to obtain comments from the authorities (see paragraph 28
above). Other people met indicated that there was no point in complaining
to the authorities, since it was the authorities themselves who were
imposing forced labour. Many added that, in any case, it would be
impossible to complain, because of language difficulties, cost, or
distance, including the problems of restriction on movement that some of
them had to face. <br><br>
**********************************************<br><br>
END NOTES (FOOTNOTES IN ORIGINAL]<br><br>
[1] ILC: Provisional Record, 89th Session, Geneva 2001, No 19, Part
Three, Appendix 5. The Understanding is reproduced in Appendix I to the
present report.<br><br>
[2] ibid.&nbsp; <br><br>
[3] ILC: Provisional Record, 89th Session, Geneva 2001, No. 19, Part
Three, p. 3/11. <br><br>
[4] The text of the letter sent in this regard is reproduced in Appendix
III.<br><br>
[5] The text of this letter is reproduced in Appendix IV. <br><br>
[6] Chief of the ILO secretariat, Mr. Francis Maupain, accompanied by Mr.
Muneto Ozaki, Mr. Rueben Dudley, Ms. Anne-Marie La Rosa, Mr. Richard
Horsey, Ms. Marie-Anne Plantard and Ms. Tracy Murphy.<br><br>
[7] Before departing Bangkok for Yangon, the HLT issued a press release
stating that it was beginning its visit to Myanmar and referring to the
solemn commitment made by the authorities (see para. 4 above) and to
certain precautionary measures taken by the HLT as regards persons it
might wish to meet. The HLT declined to have any further dealings with
the media until its report had been finalized. <br><br>
[8] A detailed programme of the first week can be found in Appendix VI,
s. (b). <br><br>
[9] See Appendix VI, s. (c). <br><br>
[10] See Appendix VII. <br><br>
[11] &quot;Village tract&quot; is an administrative structure consisting
of a group of villages. An explanation of Myanmar terms and acronyms used
in this report, as well as a list of alternative spellings of Myanmar
place names, can be found in Appendix VIII. <br><br>
[12] A detailed programme of the wrap up and debriefing can be found in
Appendix VI, s.(d). <br><br>
[13] A detailed programme of the HLT's visit across the border in
Thailand can be found in Appendix VI, s.(d).<br><br>
[14] In two cases, however, the HLT witnessed attempts by the local
escort to ask villagers what they had been telling the HLT.
Representations were immediately made. <br><br>
[15] The information received by the HLT during the last week could be
divided into the following categories: (i) direct interviews with
individuals claiming to have experienced or observed forced labour; (ii)
written statements of persons who obtained statements from others
claiming to have experienced or observed forced labour; (iii) documents
containing relevant background information; (iv) originals of orders from
military or paramilitary units to villages. <br><br>
16 The suggested prohibition should include but not be limited to the
requisition of the following labour or services, regardless of whether or
not payment is made for the said labour or services: =96 portering for the
military (or other military/ paramilitary groups, for military campaigns
or regular patrols); <br><br>
=96 construction or repair of military camp/ facilities; <br>
=96 other support for camps (such as guides, messengers, cooks, cleaners,
etc.); <br>
=96 income generation by individuals or groups (including work in
army-owned agricultural and industrial projects); <br>
=96 national or local infrastructure projects (including roads, railways,
dams, etc.); <br>
=96 cleaning/ beautification of rural or urban areas. <br><br>
[17] A border security force under the authority of the responsible
regional commander. <br><br>
[18] Village-tract Peace and Development Council. <br><br>
[19] Township Peace and Development Council. <br><br>
[20] The text quoted is taken directly from the Penal Code of Myanmar.
<br><br>
[21] A diagram showing the court structure of Myanmar is appended in
Appendix XII.<br><br>
[22] According to explanations and relevant texts provided to the HLT, a
complaint, presented either to the police or to the courts, by the person
who was compelled to work or a close family member, is necessary for a
case to be opened in respect of forced labour. Forced labour being a
non-cognizable offence in Myanmar, no investigation can be initiated by
the police without an order issued by a Magistrate (see Code of Criminal
Procedure, ss. 4( n) and 155). The instruction dated 27 October 2000
addressed by the Director-General of the Police Force to all units of the
police force follows similar lines by ordering police stations to which
&quot;any affected person files a verbal or written complaint =85 of having
been forced to contribute labour&quot; to record the complaint &quot;in
Forms A and B&quot; (which were provided to the HLT) and &quot;send the
accused for prosecution under section 374 of the Penal Code&quot;.
Afterwards, any court in Myanmar can take cognizance of offences related
to forced labour. If the complaint concerns a police officer, the case
should normally be tried by a criminal court (The People's Police Force
Maintenance of Discipline Law, s. 26). If it is against a member of the
army, the case would normally be examined by a court-martial. However,
criminal courts having also jurisdiction in cases of forced labour, they
can request that the proceedings be instituted before themselves (The
Defence Services Act, ss. 71, 128, 129( 1)). In cases of a dispute in
jurisdiction, it will be for the President of the Union of Myanmar to
determine before what court =96 court-martial or criminal court =96 the
proceedings can be initiated (ibid., s. 129( 2)). <br><br>
[23] During the meeting with the Regional Commander in Dawei, one of the
officials accompanying the HLT also read a short prepared statement which
explained that local people were reluctant to complain to courts because
it was expensive and time-consuming. People preferred to make petitions
directly to influential people, and he gave as an example the case of a
group of teachers who had complained to Secretary-1 because one of them
had been requisitioned for forced labour. <br><br>
END OF PART 1<br><br>
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