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Freedom of association in Burma: Sunlight or false dawn?
Irrawaddy - July 16, 2010
Simon Roughneen, Bangkok – With elections scheduled for later this year, a fierce debate has emerged among those who view the polls as an opportunity, albeit limited, to open up some democratic space in a military-ruled country, and those who see the process as a sham aimed at legitimizing continued military rule.
A relatively light-handed reaction to a series of strikes in late 2009 and early 2010 has some thinking that with an election looming, the ruling junta does not want to be seen clamping down on public gatherings.
According to Steve Marshall, the liaison officer for the International Labour Organization (ILO) in Burma, "The fact that the country is moving toward general elections and a parliamentary system of government is opening some windows of opportunity for positive change. It is important that these opportunities be recognized and constructively taken."
Some of the recent labor strikers were relatives of military officers, another factor possibly curtailing any potential crackdown. Some of the personnel working to reduce the prevalence of forced labor in Burma are simultaneously members of the Union Solidarity Development Association (USDA), a 28-million member "civil society" organization that is widely regarded as a junta front, with many of its members coerced into joining.
The strikes were similar in origin to protests that precipitated the 2007 Saffron Revolution, based on economic factors generally, and price increases specifically. A late 2009 wage hike for the public sector drove up prices for basic goods, putting pressure on incomes elsewhere as private sector wages stayed as they were.
Despite these echoes, and although public gatherings of more than five people are prohibited, police action was restricted to crowd control during the strikes. Criminal charges were not leveled against strike leaders, and officials acted as mediators between the employers and disgruntled workers.
This is unusual for Burma, where there are more than 2,100 political prisoners, with many held in inhumane conditions. Domestic laws often conflict with international human rights norms, including restrictions on freedom of association that contradict the Universal Declaration of Human Rights.
According to the March 2010 report on Burma, by UN Human Rights Envoy Tomas Ojea Quintana, there are several domestic laws that restrict the principles of freedom of association and assembly, such as the Unlawful Association Act (1908), the State Protection Act (1975), as well as sections 143, 145, 152, 505, 505 (b) and 295 (A) of the Penal Code.
However, some Burmese apparently feel that the legality of army-issued laws and decrees is open to question. In June, an attempt to form a trade union was nixed by the authorities, though surprisingly no arrests of the prime movers concerned were carried out. The would-be trade unionists based their challenge to the existing mechanisms restricting freedom of association on a colonial-era law – the 1926 Trade Union Act.
It appears that the junta is working on trade union-enabling laws that could be implemented after the election. Marshall told The Irrawaddy that "the government has advised those workers of their legislative intentions and has advised them to be patient and await the passing of the proposed new Act of Parliament at which time they could seek registration as a union under the new law."
This would bring the regime more in line with obligations under international law, such as the ILO Convention 87 on Freedom of Association and the Right to Organize.
Ojea Quintana reported: "According to the Attorney General, the Government has been reviewing national legislation and has found that half are not in line with the new Constitution, and 50 laws will be deleted. Some laws remain to be reviewed, but that should be completed before the end of the year."
However, the junta has already been accused of breaching its own Constitution by allowing sitting ministers to form the Union Solidarity and Development Party (USDP), which will contest the election on behalf of the military, despite a provision in the 2008 document that should prevent officials from forming political parties.
The 2008 Constitution also lays out that the judiciary should administer justice independently, dispense justice in open court unless otherwise prohibited by the law and guarantee the right of defense and the right of appeal under the law.
However, as the March 2010 report to the UN Human Rights Council notes: "In reality, many trials are conducted behind closed doors within prison compounds, without legal representation, without the presence or knowledge of their family members, without proof of evidence or with defective evidence, and pursuant to arbitrary decisions of the judges."
The election laws have been dismissed as overly restrictive, with the National League for Democracy boycotting the process as a result, along with several ethnic minority parties. For those parties that have chosen to participate, the playing field is far from level, with the latest election rules prohibiting parties from displaying flags or marching and chanting slogans in procession before or after a meeting.
Freedom of association is a key attribute in the holding of any elections, and according to Ojea Quintana's report: "The continuous building of democracy, which is the aim of the seven-step road map as declared by the Government, requires the active participation of civil society, including independent NGOs. Organized groups such as associations of monks, students and human rights defenders have been harshly suppressed."
History shows that the military government often allows public gatherings to gather some critical mass over days and weeks, to enable intelligence services to gather enough information about those involved to facilitate a crackdown later on, as was the case during the 2007 Saffron Revolution.
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