ANDREW MORGAN, GUEST CONTRIBUTOR – 30 MARCH 2015
With the “opening up” of Myanmar in 2011 after decades of repressive military rule, domestic civil society organizations, international nongovernmental organizations (NGOs), and aid organizations, have been eager to increase their activities inside the country. Corresponding with this ramp up, a remarkable occurrence unfolded between the summers of 2013 and 2014: the nation’s formerly authoritarian government opened its doors to a rigorous debate on the state of civil society in Myanmar and abandoned a restrictive law in place since the infamous 1988 crackdown.
In recent decades Myanmar has enacted and carried out among the most draconian and repressive policies toward civil society organizations in the world. In this light, the fact that it allowed a representative body of 275 such organizations to air their criticisms of a recently passed law is virtually without precedent. Perhaps more remarkably, the government then revised the proposed 2013 law in response to these criticisms, and subsequently published the final version of the Association Registration Law in July 2014 thereby fundamentally altering the people’s right to freely associate.
Civil society has a long and controversial history in Myanmar, and its reemergence is among one of the recent and rapid changes occurring in Myanmar. It could be argued that no truly democratic society is complete without an open and flourishing civil society. As long time Myanmar expert and academic, Professor David I. Steinberg noted, “[c]ivil society is . . . an essential element of political pluralism—the diffusion of power is the hallmark of modern democracies.” The significance, Steinberg posited, lies “in the hypothesis that if civil society is strong and its citizens band together for the common good based on a sense of community or programmatic trust and efficacy…[that] translate[s] into overall trust in the political process of democracy or democratization and lead[s] to diffusion of the centralized power of the state. It is precisely this characteristic of civil society that makes it a threat to autocratic governments.” Noting a brief period where civil society flourished between independence and the first military coup, Steinberg then asserts flatly that “[c]ivil society died under the Burma Socialist Programme Party (“BSPP”) . . . more accurately, it was murdered.” It is in this context that the recent changes must be placed.
Under the infamously restrictive rule of General Ne Win, he and his advisers managed to smother democracy in Burma, jail hundreds of political leaders without trials, replace Parliament with a military dictatorship, and implement a drastic program, called the Burmese Way to Socialism. In the ensuing years, the military built the BSPP from a relatively small cadre of loyal followers of Ne Win to a vast following even as it introduced an extremely rigid socialist system that eliminated private business and brought all private organizations under state control. Consistent with this new system, the BSPP virtually closed the state to all outside influence. AsSteinberg put it:
No one legally left the country without authorization, visas for foreigners for a period were limited to 24 hours, internal travel was greatly restricted, and foreign and domestic news [sic] subject to complete control or censorship. Foreign missionaries who left on leave were not allowed to return. Private foreign assistance organizations were ordered to depart, and ties between internal groups and their foreign counterparts were truncated as far as possible. Burma had turned from neutral to isolationist, and an official policy of virtual xenophobia was introduced. Thus, the relatively open society that flourished in post-independence Burma was effectively crushed and brought under the control of the extremely isolationist regime of Ne Win from the years 1962 to 1988.
Food shortages and widespread economic discontent inspired mass protests in 1988, led by the country’s student activists and revered Buddhist monks. Hundreds of thousands of people marched through the then-capital, Rangoon, calling for a transition to democracy in what was the largest mass protests in the country since independence in 1948. The army seized power in a coup, abolished the 1974 constitution, and silenced the protests by opening fire on unarmed dissidents, leaving more than 3,000 dead, according to official figures. Following the bloody crackdown, the military regime attempted to quell criticism by making cosmetic changes. The ruling BSPP party changed its name to the State Law and Order Restoration Council (SLORC) and adopted modest economic reforms.
Nevertheless, the military regime’s control of civil society continued as before, albeit subject to more external scrutiny and criticism due to the international media attention given to the country following the bloody crackdown of 1988. Indeed, at the time of his report on civil society in Burma in 1997, Steinberg wrote that there was “no letup in the attempt to prevent the rise of any pluralistic institutions in the society that could offer avenues of public debate or disagreement over state policies and the role of the military . . . the immediate future for civil society remains bleak.” During this period, then, civil society went underground, remained dormant, and waited for its chance to reemerge.
The legal basis for such restrictions was established when the SLORC passed a restrictive association law in the wake of the 1988 crackdown that governed the process for NGOs and civil society organizations to legally operate in the country. TheLaw Relating to Forming of Organizations No. 6/88 contained broad, vaguely defined restrictions that effectively banned any civil society organization from registering (and thus, legally operating) unless it maintained close ties to the government. Under the law, a member of an organization that was deemed to “disrupt law and order, peace and tranquility” could be sentenced to up to five years imprisonment, while someone found to have any link to an unregistered organization could face up to three years in prison. These draconian policies violated the Myanmar people’s right to freely associate – a right that is nearly universally recognized as foundational to human rights.
The current Constitution of Myanmar, published in a 2008 referendum, enshrines the freedom of association. Paragraph 354 of the 2008 Constitution states as follows:
Every citizen shall be at liberty in the exercise of the following 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: 1. to express and publish freely their convictions and opinions 2. to assemble peacefully without arms and holding procession; 3. to form associations and organizations . . .
Despite this guarantee, the laws and processes put in place by the regime in 1988 hampered the free association of individuals, in particular those related to the formation of civil society and non-governmental organizations. This led many NGOs to criticize and pushback against the opaque and cumbersome registration process and the harsh potential punishments for not properly doing so.
Although still restricted in many important ways, civil society groups in Myanmar began to reemerge in larger numbers even prior to the reform measures of the summer 2013. As of 2011, Harvard University’s Hauser Center for Nonprofit Organizations reported that the government continued to stifle an emergent, but weak, civil society through tight controls on media and threats to punish or restrict organizations that engage in political activities. Nevertheless, the report found that the government began to allow the growth of independent groups that they perceived as useful or innocuous, especially social services providers—likely due to the reformist attitude of the Thein Sein government. In the midst of this modest growth came most critical event for the growth of civil society in recent Myanmarese history: Cyclone Nargis in May 2008.
Amidst the tragedy of Cyclone Nargis, which left more than 84,500 dead and roughly 53,800 missing, according to official figures, international pressure led the government to eventually alter its draconian response and allow aid organizations to operate with greater freedom in the country. Many recognize Cyclone Nargis as something of a turning point for the humanitarian and civil society space in Myanmar.According to one report, there were only forty international NGOs operating on the ground in Myanmar prior to Cyclone Nargis. In the following year alone, the number grew to over 100. Because most local civil society groups were not registered, it is difficult to get an accurate estimate of their numbers and thereby project their growth. Nevertheless, international organizations operating in Myanmar at the time that were interviewed by the Hauser Center observed a rise in the number of local groups as well as their overall level of activity post-Cyclone Nargis. The response to the devastation wrought by Cyclone Nargis represented a sea change for civil society in Myanmar where government policies took a backseat to humanitarian imperatives, and, perhaps, were altered indefinitely.
Perhaps in response to criticisms during the Cyclone Nargis response, the Thein Sein government began to signal its willingness to adopt reforms, and Parliament began to legislate in the spring and summer of 2013. On July 27, 2013, the Public Affairs Management Committee of Myanmar released a revised law called the Draft Law on Associations. The Draft Law raised several concerns, including restrictive constraints on unregistered associations, overly-burdensome registration procedures, re-registration requirements, and troubling ambiguities on several issues that would make it difficult for domestic and foreign NGOs alike to carry out their programs without fear of reprisal.
In an unprecedented show of collaboration, however, on August 15, 2013, representatives from more than 275 civil society organizations (local and foreign), community-based organizations, and networks, met with Myanmar MPs and the Parliamentary Affairs Committee regarding the Draft Law. The organizations made a slate of recommendations and presented a civil society-developed alternative version of the Draft Law on Associations. On August 19, 2013, the lower house issued a revised version of the Draft Law, with a new title, the Association Registration Law, and the revised law was posted on Parliament’s website (in Burmese only) a few days later.
Despite the remarkable occurrence of the government meeting with and responding directly to concerns raised by civil society organizations given the military government’s historically repressive treatment of them, the law still included several harsh policies, including punitive measures that were not in line with international standards. Perhaps even more remarkably then, on November 4, 2013, another revised version of the Draft Association Registration Law appeared to abandon some of the more draconian measures and reflected substantial improvement over prior versions, including the July 27th and August 19th versions of the draft law. After much delay, the Union Parliament enacted the new Association Registration Law on June 25, 2014, and it was soon signed by the President and officially ‘gazetted’ in the newspaper on July 20, 2014.
The new law marks a dramatic shift from the draconian legal constraints that had become status quo for Myanmar government policy toward civil society. Likewise, the process undertaken in which civil society was invited to the government’s table to revise and draft the more progressive law is a marked shift from the frosty reception civil society found in recent decades. Indeed, one cannot help but hope that the collaborative process in the case of the association law is much more broadly illustrative of the changing winds of reform in Myanmar – just one step on the long journey of enshrining the international rights and freedoms its people so desperately crave.
Andrew Morgan serves as in-house counsel at an international NGO in Washington, D.C. He received his Juris Doctor degree from the University of Washington School of Law where he was an editor for the Pacific Rim Law & Policy Journal, where a previous version of this article appeared. Morgan also obtained a Master of Public Service degree from the University of Arkansas – Clinton School of Public Service in 2012.
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