Monday, September 9, 2013

Weekly Highlights: Burma's Draft Association Law: A Smokescreen for Further Repression?


2-8 September 2013

Weekly Highlights

Burma's Draft Association Law: A Smokescreen for Further Repression?

One of the main hopes for Burma's recent political reforms has been for a vibrant, open and flourishing civil society – a vital component of any healthy democracy and an enabling environment for sustainable development. For Burma's people to feel invested in its country's political, economic and social development, they must be allowed to participate and they must be empowered. Yet participation and empowerment cannot happen if there are onerous or arbitrary restrictions on the right to freedom of association.

It was therefore disheartening to see the draft Association Law, published by the Public Affairs Management Committee on 27 July in a state-run newspaper. The draft law violated constitutional and international standards of free association, with international law permitting only limited and narrowly defined exceptions. It also flouted accepted international standards for laws on associations or not-for-profit organisations. The draft law made registration compulsory rather than voluntary, with unregistered associations prohibited from operating and facing disproportionate and draconian penalties of up to three years in prison as well as hefty fines for establishing or even participating in an unregistered association. In fact, the law would have needed to have been almost entirely redrafted to comply with international standards.

As it is, the lower house issued a further draft on 19 August, before the close of parliament for the September recess. However, this draft makes largely cosmetic changes, which do not significantly alter the threat that the legislation poses to civil society. Despite the fact that the law is now called the "Association Registration Law", it avoids any explicit requirement for organisations to seek permission to form, and removes the draconian penalties mentioned above. But in reality many will be faced with no other legal option under the law.

First, under Chapter VI, all organisations are required to register anyway, unless they fall under an exemption, which many, including advocacy and human rights organisations, do not. Second, all organisations are required to register to avail themselves of "benefits" to which any legal person is entitled, such as initiating judicial proceedings, seeking funding, opening a bank account, or even having a logo. The draft law will mean that no organisation will be able to function viably unless they register. As before, registration involves seeking government approval, albeit with responsibility now shared between various different levels of the executive – perhaps in an effort to disguise the essence of this requirement.

What this draft does is raise a smokescreen: it gives the impression of taking civil society recommendations into account by pretending to remove compulsory registration, but in reality serves the same purpose as before, namely to perpetuate government control over civil society in Burma.

If such a law must be enacted, registration must be genuinely voluntary, thereby allowing civil society individuals and organisations the space and the right to freely associate. It must protect the basic rights of citizens and must be in line with constitutional and international legal and human rights standards, including the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights.

Furthermore, any legislation must be drafted following full and transparent consultation with civil society and the public, and take account of any recommendations. While the 27 July draft was accompanied by a notice soliciting recommendations, a deadline of just two weeks was imposed, rendering the process almost meaningless. However, civil society reacted quickly by publishing a statement endorsed by 87 organisations that rejected the draft and called for any discussion in parliament to be suspended in order to allow sufficient time for broad and meaningful consultation.

While in the right environment, an associations law can be beneficial to civil society and the public in general, in a fragile political context such as Burma's nascent democracy – barely two years old and still with a lot to prove – such a law is fraught with danger and can easily be abused to curtail citizens' rights to freedom of association and expression rather than protect them. The government's recent cosmetic changes to the law add weight to this argument and fan the flames of suspicion.

In fact, there is no need for such a law, and it would be better to do without for the time being. If, in time, Burma is ready for an associations law that might for example allow for such benefits as tax allowances for organisations, then such legislation can be re-considered when the political climate is more stable, transparent and mature. Until that point, any discussion and approval of the current draft legislation should be suspended. The right to freedom of association – so long denied to the people of Burma – must be preserved and protected at all costs. Otherwise, not only will human rights, democracy, rule of law and accountability be compromised, but essential services such as welfare, education and health may also suffer. The people of Burma deserve better than that.

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By Colin Hinshelwood
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