Civil society organizations have provided essential guidance to Burma’s peace and development process, often – through years of exiled activism and international support during military rule – holding far more political and legal knowledge than government officials themselves. This summer, the Burmese government, threatened by these organizations’ influence and advocacy efforts, rolled out the draft Association Law to indirectly control and subordinate civil society by requiring organizations to register with a national military-chaired government committee. Chapter III of the draft law establishes that the minister of Home Affairs (a military-run ministry) would chair the national level registration committee, allowing the military access to all organization applications and power over deciding which organizations are approved. Military-affiliated ministers would also serve in the state and regional-level committees.
Given concerns over freedom of association and military involvement in civil society affairs, USCB attended a September 25th discussion on the draft law with Burmese activist Ma Khin Lay sponsored by Freedom House (a DC-based watchdog organization dedicated to promoting free institutions around the world). Both Burmese and international activists and civil society groups are extremely concerned about how Burma’s new draft Association Law will threaten civil society’s ability to participate in social and political development. UN special rapporteur on the human rights situation in Burma, Tomas Ojea Quintana, urged parliament to postpone passing the draft law, saying in August, “With this bill, the Government is setting up a system of registration for civil society which enables them to arbitrarily clamp down on legitimate organisations. The government has to change its mindset on registration procedures if it is to create an environment in which civil society can thrive.”
Notably, two drafts of the Association Law have been produced. The first draft was released on July 27th published by the Public Affairs Management Committee in a state-run newspaper. The government then gave civil society groups two weeks to review the legislation and offer comments and recommendations. Ma Khin Lay emphasized that the short two-week review period was a big constraint for activists, who had to scramble to review the law and formulate political strategy. Some civil society groups advocated for the law’s rejection; others called for its amendment. 87 civil society organizations united to endorse a statement criticizing the law and calling for an extended review period. Burma’s lower house of parliament did not extend the review period, but it did release an amended second draft on August 19th, renaming the legislation the “Association Registration Law.”
The provisions for compulsory registration, and unreasonable punishments were two of the most problematic pieces of the first draft law. Organizations that did not register with the government would face up to three years in prison, in addition to astronomic fines for individuals who participate in unregistered organizations. All organizations would be in a very tenuous position: they could remain unregistered and risk being caught and imprisoned, or they could register with the understanding that the national registration committee chaired by the military has all of its information, which could be used to pre-censor the organization by not accepting its registration application, to monitor its activities, or to arrest its members. The law would give the government the authority to censor not only civil society activities, but also civil society organizations’ fundamental right to exist. Organizations could be denied permission by the review committees, or even self-censor by refraining from applying.
Among the more substantial improvements made in the August 19th draft is the reduction of registration fees for organizations – fees that were unreasonably high in the first draft. In the August draft, national and regional organizations do not have to pay more than US$50, and township level organizations are exempt from any registration fees. But problematically, the second draft of the law does not solve the mandatory registration problem. It technically allows some – not all (certainly not human rights and advocacy organizations) – organizations to sidestep registering, but provisions have been written so that no organization could properly function without registering. For instance, receiving international funding, benefiting from copyright laws, applying for bank accounts, and registering a logo would be impossible without registering with the government. Therefore, even the second draft of the Association Law makes organizations dependent on government approval for existence.
Many Burmese activists have claimed that the current Association Registration Law is unconstitutional, pointing out that section 354 of the 2008 constitution provides every citizen with the right to form associations and organizations. But these rights aren’t concrete – the constitution states citizens are only entitled to such rights “if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or public order and morality.” This wording allows the government to exert arbitrary limits on constitutional rights. No civil society member can be certain of his/her own safety if the Burmese government has the liberty to enact draconian laws under the pretext of protecting the vaguely-phrased “community peace and tranquility” (Art. 8, Sec. 354).
According to Human Rights Watch , the draft law not only violates international law standards, but also represents a clear step backward on the Burmese government’s alleged pursuit of democratic reforms. Burmese democracy activist Khin Omar wrote, “the law would have needed to have been almost entirely redrafted to comply with international standards.” If the law is passed in its current form, it will be a clear indication that the Burmese government is not ready to loosen its grip on civil society. However, if the legislation could be amended in a team effort with civil society, this could mark a new start for Burma’s alleged ‘participatory [quasi-]democracy.’
According to Ma Khin Lay, a “trust deficit” is driving the Burmese government to exert further control over civil society as a reaction to civil society’s increasingly important and active sociopolitical role. (We wonder, however, why there is such a trust deficit, and who is in whose debt…) Censorship of civil society organization is obviously not the answer, even, as Ma Khin Lay argued, from the government’s perspective. The government could earn more international legitimacy by allowing civil society to participate in the legislative process and by incorporating their recommendations – civil society consultations are a beneficial “political investment” for the government as well, Ma Khin Lay argued. She further explained that Burma’s MPs are under-informed about the political consequences of the association law. Burmese civil society must be allowed to flourish free of government censorship if the Burmese government hopes to achieve a more genuine democracy, as lower house speaker and former general Shwe Mann so often purports to having already achieved.