The government of Burma has set down conditions for the forming of political parties that would have people associate in order to participate in anticipated elections, but nowhere is the right to associate guaranteed. While parties are required to have at least a thousand members to enlist for the national election–500 for regional assemblies–a host of extant security laws circumscribe how, when and in what numbers persons can associate.
The allowance of association without the right to associate is manifest in the Political Parties Registration Law 2010, which contains references to some preexisting laws that prohibit free association. According to section 12, as translated by the Asian Human Rights Commission,
“A party that infringes [the law in the manner of] any of the following will cease to have authorization to be a political party: … (3) Direct or indirect communication with, or support for, armed insurgent organisations and individuals opposing the state; or organisations and individuals that the state has designated as having committed terrorist acts; or associations that have been declared unlawful; or these organisations’ members.”
As in present-day Burma–or Myanmar as it is now officially known–anybody can be found guilty of having supported insurgents, of having been involved in terrorist acts, and above all, of having contacted unlawful associations, the law effectively allows the authorities to de-register any political party at any time.
The case of U Myint Aye is indicative. For founding a local group of human rights defenders and speaking on overseas radio broadcasts about what he saw after Cyclone Nargis, Myint Aye was arrested and accused of a fabricated bombing plot. The military tried and convicted him and two other accused in a press conference during September 2008; in November a court followed suit, handing down a sentence of life imprisonment (AHRC-UAU-018-2009).
More recently, the AHRC has issued appeals on evidence-free cases in which people have been tried and convicted to long terms of imprisonment for having allegedly had contact with unlawful groups outside the country. These include the case of Dr. Wint Thu and eight others in Mandalay (AHRC-UAC-011-2010), and the case of Myint Myint San and two others in Rangoon who were convicted for allegedly receiving money from abroad that was for the welfare of families with imprisoned relatives (AHRC-UAC-137-2009).
The new party registration law is hostile to democratic government because it envisages the arbitrary use of draconian provisions to prevent people from associating freely. It is a law to ensure that only persons and parties palatable to the military regime will be able to run for and obtain office.
But it also points to a far deeper problem. The very concept of a right, in terms of international standards, is neither recognized nor understood by the government of Burma. That the right to associate does not exist is not merely a consequence of a law designed to deny it. It is a consequence of a political and legal regime that does not contain rights within its conceptual framework at all.
This was not always the case. In 1950s Burma, rights were a central part of how national leaders sought to shape government and society. The courts also strongly supported citizens’ rights against the state through a robust constitutional framework. But after the military took full power in a second coup, during 1962, rights became “socialist”.
According to this notion of rights, the interests of the people and the state were aligned against the capitalists. Under “socialist rights” the very idea that a citizen might have a right to claim against the state was absurd. Individual agents of the state could violate citizens’ rights, but the state itself could never do wrong. The right to associate in this time was therefore always a “right” to associate with and through the organs of the state, not apart from them.
After 1988 the socialist concept of rights also ceased to exist, but it was not replaced with anything else. The new state in Burma was right-less, constitution-less, and also law-less in the sense that all laws in the last two decades have been issued as executive decrees rather than through any legislative process. Anything described as a right in this time has in the official view been no more than an entitlement bestowed upon all or part of the population, even if it may be described otherwise.
The 2008 Constitution has confirmed the absence of rights from the normative frame of the new state. At every point it negates and qualifies so-called statements of rights, including the right to associate. Under section 354, citizens have a “right” to form associations that do not contravene statutory law on national security and public morality: which as shown above can be construed to mean literally anything.
The military regime in Burma evidently expects the new constitution and new elections together to be taken as indicators of social and political change. But the passing of a constitution does not signify that rights exist, and nor does the holding of elections signify democratic renewal.
After 52 years of almost unbroken army rule, Burma is today not only without a judiciary, but also without the conceptual frame of rights that are requisite for a fair electoral process. Lacking these, what remains can only be characterized as the politics of despair.
[This is the second in a series of statements by the AHRC on the planned general elections in Burma. The first was, Elections without a judiciary?(AHRC-STM-059-2010). Next: Elections without speech?]
