No Room to Move : Legal Constraints on Civil Society in Burma

Zunetta Liddell

The development and maintenance of civil society - that is, free associations of citizens joined together to work for common concerns or implement social, cultural or political initiatives which compliment, as well as compete with the state - depends upon the citizens of any state being able to enjoy fundamental freedoms: freedom of thought, opinion, expression, association and movement. Underscoring and defending these freedoms must be an independent judiciary and the guarantee of the rule of law. In Burma today, none of these conditions exist.

There is no freedom of the press in Burma: government censorship is heavy-handed and pervasive. While the opening up of the economy since 1988 had lead to a proliferation of private magazines and access to affordable video and satellite equipment has also resulted in a massive expansion of small scale video companies and TV/Videos parlours around the country, the organs of state censorship have kept pace with these developments, and virtually every sentence and every image which is produced by the indigenous media has to passed by the government's censorship board, and all non-local media are also carefully monitored and controlled. The Burmese services of the BBC, VOA and the Oslo-based Democratic Voice of Burma are often jammed; CNN and World Service broadcasts which include issues sensitive to the government mysteriously loose sound. New laws have been promulgated to restrict access to the internet, and it has been reported that the government has also purchased technology from Israel which can monitor and censor e-mail messages, and other equipment from Singapore to monitor satellite phones.^[1]

Neither is there any freedom of association. There are no independent trade unions. Rather, civil servants, who form the vast majority of the professional, blue and white collar workers in the country, are rather forced, by a variety of coercive measures, the government-backed Union Solidarity Development Association. Political parties were permitted to form for the first time in decades after the SLORC assumption of power in 1988, but of the over 200 parties which registered then, only seven remained legal by 1993. More have since been formed by the ethnic minority groups which formed cease fire agreements with the SLORC between 1989 and 1993, but at the same time, some of those groups have still not been publicly removed from the list of unlawful associations under the 1975 Act of that name (more below). Significantly, among the first parties to be de-registered were those which represented ethnic minorities and which had collectively called for a federal constitution in their party manifestos.^[2] Non-governmental organizations (NGOs) and professional associations in Burma must register with the government under the Companies Act, and thus far in this climate of fear and repression, few have. Those NGOs which do exist have either been coopted by the government at the highest levels, or were government-inspired NGOs in the first place.^[3]

Since 1989 some 15 armed ethnic opposition groups have formed cease fire agreements with the government, though as yet the SLORC/SPDC has gone no further than this first step in what is hoped will be a process towards lasting political settlements. The cease fires mark a major change in the climate in Burma, where previous military governments have appeared to consider military defeat as the only way to end the ethnic minority rebellions, and a change which may be a move towards the creation of the conditions necessary for the development of civil society is in areas which are at peace for the first time in decades. There is some dispute about the effects of the cease fire agreements in terms of the development of civil society in war-affected areas. However, in terms of the legal position at least, they have not lead to the creation of a safe space where civil society-like structures can develop.

In sum, Burma is a highly authoritarian state, and the SLORC's administrative reforms since 1988 have all been aimed at greater centralization of economic and political power. This is perhaps hardly surprising given the role of professional groups, students unions and Sangha (Buddhist monks) organizations in the uprising of 1988 and in mass anti-government demonstrations since then. Resurrected trade unions organized a general strike which continued from mid-August through early October; the Rangoon Bar Council published a statement condemning the killing of civilians and saying that the armed forces were acting unconstitutionally and in violation of international law; the Burma Medical Association condemned the killings in Rangoon in August; and most importantly student unions and monks organizations were effectively in charge in several cities, including Mandalay, for nearly six weeks.^[4] On taking power, the first thing the SLORC did was to outlaw strike centres and gatherings of five people or more on the streets.

There is no sign as yet that the newly-created State Peace and Development Council will buck the centralizing trend. Indeed, within days of its creation, divisional, state and township level Peace and Development Councils were formed, with a reportedly higher prevalence of military personnel than the previous Law and Order Restoration Councils. Given this situation, any moves towards civil society can only take place at the most local of local levels or for the most ephemeral events - in sections of the village, among church congregations or around Buddhist monasteries; or township or even state level organizations for temple festivals, emergency relief work, national immunization campaigns and so on - where they cannot be perceived to be a threat to the state. Whether such local initiatives will ever, or rather be allowed to, develop into national civil society-like structures is very doubtful. It is here that international NGOs have to be most careful: supporting local initiatives, especially if the support is financial as well as 'technical', could result in them gaining the unwanted attention of officials in Rangoon who may then either co-opt the group, or prevent them from operating.

I. The Legal System

Before any discussion of the laws themselves, it is important to note the lack of clarity and of openness in Burma's legal system. On taking power in 1988 the SLORC 'suspended' the 1974 constitution, and thus there is no constitution currently in place to set a legal limits on the actions of the SLORC/SPDC. Despite not having a constitution, the SLORC stated that all laws in place at the time of their taking power will remain in force unless otherwise stated in SLORC Declarations and Orders. Then, in July 1991 the SLORC formed a Law Scrutiny Central Board, chaired by the Attorney-General, U Aung Toe. This board was charged with assessing all existing laws and appealing or amending those "found to be non-beneficial to the state and the people" . I think it can be assumed that the main purpose of this body was to assess laws which contradicted or limited the development of a free market economy, and indeed many laws have since been appealed or new laws enacted which allow for the formation of joint venture companies, banking and other financial institutions and so on. However, in March 1996 the SLORC told the UN Commission on Human Rights that this body had repealed 151 laws, though it did not give a list of those laws. In addition, after repeated demands from the International Labour Organisation that the government repeal the 1908 Villages and Towns Acts, which allows for the forced recruitment of labour, the SLORC stated in October 1997 that it had amended the two laws, but indicated that they would be included in the new constitution, rather than promulgated immediately.

Given this situation, and the fact that under the SLORC there has been no legal gazette, it is often very difficult to know which laws are in effect today.

Over and above these considerations though is the lack of an independent and impartial judiciary and the operation of due process of law. Between 1988 an 1992 all political prisoners were tried by military tribunals, summary courts often held within jails and at which the defendants had no right to legal representation or to call witnesses. Since the repeal of military tribunals in April 1992, things have not much improved for those arrested for those arrested for their involvement in political parties or violating laws limiting freedom of speech, association and assembly. In addition, rule of law in non-political cases is limited by gross corruption among the judiciary, the complete absence of any form of government-funded legal aid for the poor, which results in many cases being undefended, and the appointment since the SLORC of former military officers with little experience of civil law as judges. Burma's legal system under the SLORC had been repeatedly condemned by human rights organizations and the U.N. Special Rapporteur for not meeting international standards. Most recently, in his December 1997 report, the Special Rapporteur stated that,

“the absence of an independent judiciary, coupled with a host of executive orders criminalizing far too many aspects of normal civilian conduct that prescribe enormously disproportionate penalties and authorize arrest and detention without judicial review or any other form of judicial authorization, leads the Special Rapporteur to conclude that a significant percentage of all arrests and detentions in Myanmar are arbitrary when measured against generally accepted international standards.”

II. Freedom of Information and Expression

Perhaps the most notorious and certainly the most frequently used law limiting freedom of expression is the 1950 Emergency Provisions Act (EPA). This act is very broadly worded and has been used against people who have done as little as sung pro-democracy songs or written letters to friends abroad which included critical remarks against the government.

Section 5.He who: ....

(e) causes or intends to spread false news knowing before hand it is untrue;

(j) causes or intends to disrupt the morality or the behaviour of a group of people or the general public, or to disrupt the security or the reconstruction of the stability of the Union;

...such a person shall be sentenced to seven years in prison, fine or both.

Scores of National League for Democracy members and supporters and other political dissidents have been sentenced under this act. Some of the most well-known are:

· U Nay Min, arrested in 1988 for allegedly providing information to the BBC. He was sentenced to a total of fourteen years, which was reduced in the general amnesty in 1992 to ten years and was released in November 1996, having been given the customary reduction of sentence for good behaviour.

· Ye Htut, a student who was not politically active himself, but had friends among the ABSDF, was sentenced in November 1995 to seven years under the EPA for having sent copies of the New Light of Myanmar and other periodicals in letters to his student friends abroad.

In April 1995 nine students were arrested at the funeral of the former prime minister U Nu for having allegedly sung part of the song Kaba ma kyey bu, the pro-democracy anthem from 1988. There were each sentenced to seven years under the EPA.

In addition, the Burma Penal Code, section 109, allows for the arrest for up to seven years for anyone who "spread false information injurious to the state" The similarity of the wording between these two laws has meant that, following intense criticism from the Special Rapporteur and others over its use of the EPA, the SLORC has taken to using this section of the Penal Code to sentence NLD members and thus obscure the political nature of the alleged 'crime'. At other times, it has used both laws against the same person, for example, the author Daw San San Nwe who was sentenced to a total of ten years imprisonment in October 1994.

Printers and Publishers Registration Law (1962) This law was brought in soon after the 1962 coup to limit and control what was at the time one of the most free and prolific media industries in Asia. The law established the Press Scrutiny Board which must censor all books, films, magazines and songs before publication. It also limits the numbers of copies which can be published. In June 1989 the law was amended to increase the punishments for non-compliance to imprisonment for up to ten years and fines of up to 30,000 Kyats (currently about $1,000, but officially $5,000).

Official Secrets Act (1948), allows for the detention of between three and ten years for anyone "Handing over classified state documents of national interest to unauthorized persons", but has been used against people who have passed on documents not so classified and which could not reasonably be argued to be a threat to the national interest.

As if this were not enough to stifle opposition, last year the SLORC promulgated three laws aimed at preventing criticism of the national convention and curbing the use of new communications technology:

In June 1996 the SLORC promulgated a new law, SLORC Order 5/96, which essentially allowed for the detention for up to twenty years of anyone even verbally criticizing the National Convention, the government run constitutional assembly, and also the banning of any party or organization which encourages its members to do so: Law to protect the stable, peaceful and systematic transfer of state responsibility, and the successful implementation of the National Convention tasks from disruption and opposition.

Section 3. No person or organization is allowed directly or indirectly to violate either of the following prohibitions.

a Instigating, protesting, preaching, saying (things) or writing and distributing materials to disrupt and deteriorate the stability of the state, community peace and tranquility, and the prevalence of law and order

b Instigating, protesting, saying (things) or writing and distributing materials to affect and destroy the national consolidation

c Disrupting, destroying, hindering, instigating, preaching, saying (things) or writing and distributing materials to affect, destroy and belittle the tasks being implemented at the National Convention, which has been convened in order to draw up a firm constitution, and to cause misunderstanding among the people.

d Implementing the tasks of the National Convention; or drawing up or writing and disturbing state constitution with no legal authorization.

e Attempting or collaborating to violate any of the above mentioned prohibitions.

Section 4. Anyone who is convicted of violating the prohibitions mentioned in Section 3, shall be sentenced to a minimum of three years and a maximum of twenty years in jail and may be subjected to fines.

Section 5. If any organization or persons violates the prohibitions mentioned in Section 3 at the direct assistance from any organizations, that organization or organizations shall be:

a Banned for a limited period.

b Disbanded, or

c Shall become an illegal organization.

In July it was the Television and Video Act which required all UN agencies and foreign diplomatic missions to submit imported videos to be shown publicly to the scrutiny of the PSB. It also required all video-parlours to obtain licenses and that all videos be they locally produced or foreign, be approved by the video censorship board. Violations of this law carry three year prison sentences and/or fines of up to 100,000 Kyats.

September 27, saw the introduction of the Computer Science Development Law which made the unauthorized import, possession and use of computers with networking capacities, modems or any other means of transmitting information electronically, punishable with sentences of between seven and ten years.

Section 34 Whoever commits any of the following acts using computer network or any

information technology shall, on conviction, be punished with imprisonment for a term which may extend from a minimum of seven years to a maximum of ten years, and may also be liable to a fine.

a carrying out any act which undermines State Security, prevalence of law and order and community peace and tranquility, national unity, state economy or national culture;

b obtaining or sending and distributing any information of State secret relevant to State security, prevalence of law and order and community peace and tranquility, national unity, state economy or national culture;

Bizarrely, the law states that its objectives include "to contribute towards the emergence of a modern developed State through computer science."

While these laws have been used or are apparently directed mainly at political opponents, and specifically the NLD, they are so broadly worded that they enforce a great deal of self-censorship on all groups and individuals whose work could be interpreted as being critical of the government. In essence, in Burma, any critique of any government policy is taken by the government to be an attack on the government itself: the most recent example of the arrest last year of Win Htein and nine other NLD activists and farmers who were given lengthy jail terms for attempting to reveal the failures of the government's agricultural policy in the Irrawaddy Delta region, serves to increase this self-censorship.

III. Freedom of Association and Movement

The most far-reaching law prohibiting free association is SLORC Order 2/88, issued by the then Chairman of the SLORC, Gen. Saw Maung on the day the SLORC assumed power, which states:

for all monks and people to abide by:

a No one, without proper authorization, is permitted to travel on the streets between 2000 and 0400

b Gathering, walking, marching in processions, chanting slogans, delivering speeches, agitating, and creating disturbances on the streets by a group of five or more people is banned regardless of whether the act is with the intention of creating disturbances or of committing a crime or not.

c No one is permitted to open strike centers regardless of whether or not the intent is to cause disturbances or commit a crime.

d No one is permitted to block roads or to demonstrate en masse.

e No one is to interfere or to obstruct people carrying out security duties.

Section (a) of this Order to repealed in April 1992, when Gen. Than Shwe came to power, but the other sections remain in place. While this law has not often been enforced, there are many others laws which are. The most frequently used law is the 1908 (1957) Unlawful Associations Act which allows for the detention of up to three years of anyone who is a member of or assists in any way an unlawful association:

"Unlawful association" means an association -

a which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or

b which has been declared to be unlawful by the President of the Union under the powers hereby conferred.

17.1 Whoever is a member of an unlawful association or takes part in meetings of any such association or contributes or receives or solicits contributions for any such association, or in any way assists the operations of any such association, shall be punished with imprisonment for a term not less than two years and more that three years"

Other laws are aimed specifically at preventing civil servants, who, in a country where private institutions and businesses were effectively banned until 1988, make up the majority of the non-agricultural work force, from participating in politics. In 1990, the SLORC issued a law reiterating this, and further prohibiting their relatives from supporting political parties in any way. I quote the law in full because it has particular importance since the formation of the SPDC, and shows clearly how the government has in the first place broken all of its original promises in terms of opening up the political space for multi-party democracy, while at the same time as making those promises was determined to prevent any perceived or real alternative power structures developing within its own ranks.

Order 1/90, issued on May 22, 1990 This order^[5] was issued to remind people that "action will be taken against all those who fail to report people illegally residing in their homes." Noting that under existing laws any person not normally resident in a house who stays for one night or more must be registered at the local township LORC office, and threatened to charge persons failing to do so under Section 124 of the Criminal Code "for failing to disclose to the authorities concerned either that an act or a conspiracy that amounts to high treason" and sentenced to seven years imprisonment, or three years imprisonment under the Unlawful Association Act section 17.1; or six months imprisonment and a fine or both under Section 22 of the Criminal Code for "failure to report the crimes committed". The order states that it was issued after the arrest of Myint Soe and Aung Naing, both members of the ABSDF, who were arrested in Rangoon having been found hiding there for some time. It states,

4. In order to peacefully and successfully hold the multi-party democratic elections on 27th May 1990 as well as to timely expose the destructive insurgents, it is vital to uncover insurgent sappers sent in by all sorts of insurgent organizations."

SLORC Order 1/91, promulgated in April 30, 1991 Order compelling conduct of public service personnel to be clear of party politics.

1. Since assuming the responsibilities of the state and in accordance with the wishes of the people, the SLORC has been undertaking the restructuring of the nation's political system. In doing so, the SLORC has been laying down the foundations for the transformation of the political system from a one party system to a multiparty system by abolishing laws that protect the one-party system while promulgating other necessary laws.

3a. public service personnel must not engage in any party politics. They must not provide financial assistance or support by other means to any political party.

b. They must not be a member of any political organization.

c. They must prohibit their dependents or persons under their guardianship from taking direct or indirect part in activities that are aimed at opposing the government.

d. They must not be party to any labour association, organization, union, and other like bodies not formed in accordance with the rules occasionally announced and prescribed by the government.

IV. Freedom of Movement

Freedom of movement and the right to political participation is also controlled and restricted by the SLORC's control of the issuance of personal identity cards (ID cards). For decades all residents in Burma have had to carry identity cards, showing the citizenship status, normal place of residence, date of birth, name of father and so on. The format of these cards was changed in 1990, to include not only all of the above, but also ethnicity and religion. All residents and citizens in Burma were required to apply for the new cards, without which it is illegal (though, as with al things in Burma today, possible if you can pay the required bribe) to buy a train or bus ticket, to register with a local council outside one's normal place of residence, and to vote in any future elections. For many ethnic minorities, including those residing in territory formally held by insurgent armies or other war-affected areas, obtaining the new cards is extremely difficult, and for the Muslims Rohingyas of northern Arakan state, it is impossible.[6] Following the agreement of cease fires with some ethnic groups, the government guaranteed all those residing in areas under the control of the ethnic group temporary ID cards which would be replaced with permanent cars once a formal check of their identities had been made. In the case of all former Mong Tai (Khun Sa) soldiers at least, this promise has not been fulfilled and the temporary cards have become worthless. In may other ethnic areas, many people have not been informed of the need to apply for the new cards, or have found that the processing procedures can be extremely lengthy. As a result, few ethnic minorities living outside of urban centres have ID cards, and thus have no right to vote.

The ability of Burmese citizens to move freely from Burma to other countries is also restricted by the government, which will only issue passports for limited periods (max. two years). This system also enables the government to monitor and restrict the activities of those abroad, who have to attend the government embassy to renew their passports every two years. Failure to pay roughly 10% of all earnings while abroad (this tax is currently the government's main source of foreign exchange) or involvement in any political activities while abroad, results in a refusal to renew the passport, forcing the holder either to return to Burma or to seek political asylum.

V. The Buddhist Sangha (Order of Monks)

The examples above, which are in fact just a taste of the worst of Burma's laws which restrict or prohibit freedom of speech, assembly and association, reveal just how tight state control is. Unsurprisingly, that control also extends to religious organizations, and in particular to the Buddhist Sangha, which as a body has traditionally been at the forefront of social justice movements in Burma (eg. 1930s independence movement, 1988). I mention the Sangha here because it has been seen by some as a potential leader of civil society and a possible NGO partner. However, the Sangha, while many of the over 300,000 monks and novices in Burma would like to be involved in social reform, as a body it is essentially a gongo.

During the 1988 democracy period, the monks played a key role, especially in Mandalay, of keeping control and order during the demonstrations and at times negotiating with the military. In September 1990 monks in Mandalay and Rangoon demonstrated by refusing to accept alms or perform religious ceremonies for military families in order to try an forced the government to recognize the result of the May election. This provoked a massive crackdown on the monks in which monasteries were raided and hundreds of monk arrested. In October the SLORC promulgated a new law banning all independent Sangha organizations and limiting Sangha sects to nine. Any monk convicted or violating the law by trying to form a new organization faced up to three years imprisonment.

This law, while serious in itself, was in fact just another zipper to the government's straight-jacket of control of the Sangha. While the military since 1962 has been keen to present itself as a secular government, it maintained a close relationship with the Sangha, both in order to increase its own legitimacy with the Burman population, and also, perhaps more importantly, to control "the purity" of the monks - and expel any monks who either express views opposing Buddhist doctrine, or government policy. In 1980 the Sangha was purged (a purge conducted by the infamous butcher of Rangoon, Col. Sein Lwin), has been almost total. At that time, the government appointed a Working Committee of six monks which chose some 1,000 monks to attend a Sangha Congregation in May 1980.[7] The Congregation produced the "Fundamental Rules of Organization of the Sangha", the means by which the Sangha ostensibly controlled and regulated itself, but since appointment to the relevant Sangha Committees is controlled by the Department of Religious Affairs, it was actually an extension of governmental control to "wayward" members of the Sangha.[8] Hundreds of monks, including those practicing indigenous medicine, were thrown out of the Sangha and their sects made illegal.

Buddhism and the state are inseparable in the SLORC's Burma, and a compliant Sangha is essential to maintain its cloak of legitimacy. More than past regimes, the SLORC has an implicit "one nation, one race, one religion"`ideology which is clear in all of its dealings with ethnic and religious minorities. For example, the August 1993, Development of Border Areas and National Races Law, includes as objectives "to cherish and preserve the culture, literature and customs of national races" one of the duties and powers of the Ministry created by the Law is "making arrangements for the promotion and propagation of the sasana [Buddhist religion] in the Development Areas". The SLORC has also created or revived several Buddhist missionary universities, which send out monks to proselytize, often with the assistance of military force, in ethnic minority areas. It has also renewed the tradition of monastic teaching for primary level children, and during the early months of 1997 when all primary schools were closed, these were the only educational establishments available in many areas. Recently, Catholic families in Taunggyi have been encouraged to send their children to monastic schools, the encouragement being that they would not get a better education that way, but it would be the only education open to them. In this climate, while it would not be impossible, though risky, for individual monks or monasteries to cooperate with NGOs, the Sangha as a whole is viewed by the government as yet another means of social control, and one it is unlikely to let go of.

Conclusion

Overall, the prospects for the development of civil society in Burma is grim. However, the Burmese people have always lived with draconian laws, and have quite often found ways around them. If all the outside world seeks to do is to support and encourage those individuals, families and organizations which do come forward with social development projects with training and technical assistance, it will be doing the best it can. In a situation where there is no civil society, throwing money at it won't help.

This paper is one of four presented at the conference 'Strengthening Civil Society in Burma. Possibilities and Dilemmas for International NGOs' organised by the Transnational Institute and the Burma Centrum Nederland on December 4 and 5, 1997 in the Royal Tropical Institute in Amsterdam.

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[1] These last developments are important for international NGOs, UN agencies and even Embassies which have traditionally relied on the use of satellite links to avoid the pervasive government tapping of telephone lines.

[2] More recently, U Saw Oo Reh, the NLD MP for Loikaw in the Karenni state was arrested early last year for having written papers during the election campaign in 1989/90 which discussed the issue of federalism.

[3] E.g. Myanmar Maternal and Child Welfare Association (MMCWA), whose vice-president is the wife of SLORC Secretary-1, Lt. Gen. Khin Nyunt. Despite this the MMCWA was said to have a degree of autonomy at the local level, until recently when it was reported that all chairwomen at township and village level is now always the wife of the Township or Village Peace and Development Council chairman.

[4] Many of the groups and associations which emerged in 1988 were revivals of pre-1962 groups, and organizations which were first formed during the fight for independence in the 1930s. The groups used the language and insignia of these old associations, including most memorably the fighting peacock chosen as the symbol of the students unions, which was first used by Aung San in the 1930s. While this suggested that these groups had a contiguous history, in the intervening years of military rule most had died out rather than gone 'underground'.

[5]This is not the notorious Declaration 1/90 which required all elected members of parliament to sign their agreement to the government's declaration that the election was intended not to produce a new parliament, but a constituent assembly to write a new constitution under which new elections would be held and power transferred.

[6] Rohingyas are not a recognised ethnic minority under the 1982 Citizenship Law, and usually cannot prove residence in Burma by all ancestors from 1824 onwards, as required by that law. In fact, the law was specifically designed to refuse Rohingyas citizenship - see "Burma/Bangladesh, Rohingya Muslims:Ending a Cycle of Exodus?" HRW/Asia September 1996.

[7] This whole process bears a striking resemblance to the way in which the constitutional assembly, the National Convention, delegates were selected, and the running of the Convention since then. The SLORC has done very little which the military hasn't done before!

[8] for further details see Tin Maung Maung Than, "Sangha Reforms and Renewal of Sasana in Myanmar: Historical Trends and Contemporary Practice" in Trevor Ling ed., Buddhist Trends in South East Asia.