Aye Thein argues that the NLD government is taking a sledgehammer approach to the issue of freedom of assembly in Myanmar.
What is now popularly called the Nyein Su Si Law (formally the Peaceful Assembly and Procession Law) dates back to 2011, when it was first sponsored by the Ministry of Home Affairs, one of the three ministries which continues to be controlled by the Tatmadaw (Myanmar military). Amid strong protests over many of its elements, President Thein Sein’s government amended it for the better in 2014, for example, by removing the need to seek permission from the police and softening the punishments for would-be violators of the law. However, as a growing chorus of criticism indicates, the final draft of the Nyein Su Si Law, which the NLD-dominated Amyotha Hluttaw (Upper House) approved on 7 March 2018, is bound to erode the improvements made upon earlier versions. I argue that the NLD’s sledgehammer approach to the issue is going to further undermine the existing democratic space in the country, which by all indications needs expansion, not contraction.
First of all, the manner in which the bill has been debated in the Upper House, and hurriedly passed, is hardly reflective of democracy and the democratic values which the NLD government claims it represents and works for. The draft law was tabled in the Upper House on 19 February 2018 and carried in official newspapers on the following day, inviting comment from the public. This invitation was taken up in all seriousness as hundreds of activists from civil society organizations and political parties protested in Yangon on 5 March 2018, denouncing such elements of the draft law as they believe would undermine the very freedoms it is supposed to protect. In a rather self-undermining move, the Upper House approved it just two days later without offering so much as an explanation for such urgency. If the protests were any guide, the draft law does not reflect public opinion, and if some of the rumours were true, it would not even reflect the views of some NLD MPs. One political commentator believes that some NLD MPs were scolded and pressured by higher-ups into toeing the party line.
Opponents also criticize the proposed law on more substantive grounds. Article 18 in particular has come under heavy criticism, rightly so in my opinion. For instance, Daw Nyo Nyo Thinn, former MP and outspoken critic of the NLD, has pointed out that some of the wording such as “public morals” in Article 18 continues to enshrine the repressive language of the military-era government, and “is so broad that it is tantamount to stopping citizens from exercising the very freedoms of assembly, association, and expression in question.” Given the loosely organized nature of grassroots movements and protests, mandatory disclosure of detailed information about funding sources for a planned demonstration and a maximum 3-year prison sentence and fines seem designed to put unnecessary and inhibiting burdens on citizens’ right to exercise the freedoms in question. Naw Hla Hla Soe, an NLD Member of Parliament who opposed the bill, argued at the Parliament session that freedom of assembly and association is a foundational right that people in Myanmar won not long ago through hard-fought struggles and the proposed amendments should not be adopted, as they would reverse the progress gained so far. I will further argue that these rights are not mere liberal luxuries that citizens in Myanmar can forego but they are instrumental to a host of long-standing issues facing the country.
Issues that Need A Good Protest Law
One area that is going to be adversely affected by the Nyein Su Si law is labour rights, which as they exist hardly meet international standards. In fact, workers who protest for their rights continue to face harsh responses from the police. A lot of progress still needs to be made in protecting workers in the country, such as improving their general working conditions and providing a living wage. In order to achieve this, workers need to, among other things, organize themselves and protest to increase their bargaining power vis-à-vis the government and employers. Unfortunately, the proposed Nyein Su Si law is going to put a major hurdle in the way of workers’ struggle for their rights. This is the reason workers were among those who participated in the 5 March protest against the proposed bill. A significant number of people have already been jailed through the existing Nyein Su Si law; for instance, the Assistance Association for Political Prisoners (Burma) reports that there are still 240 people who are either serving jail terms or facing trial due to their “political” activities. Furthermore, although one cannot tell with any certainty, while changes to the 2008 Constitution would probably come through a long process of elite-level negotiation, of course with the blessing of the military, there ought to be a huge role for grassroots level protests to play in this process. The NLD’s seeming obsession with criminalizing protest is further indication that it could be backsliding on this crucial front.
The Case for Substantive Democracy
At a broader level, limits on freedom of assembly are going to stifle freedom of expression, which cannot be exercised meaningfully without the former. Furthermore, democratic rights such as freedom of assembly and freedom of expression are the very substance a democratic culture is made of. Unless citizens can engage with one another in a public space created collectively, the emergence and endurance of a democratic culture stands little chance of success. In other words, democratic rights should be understood beyond the sense of their practice and appreciated for their educational role as well. It is within this public space that citizens can exchange their views, reason with and learn from one another on all the issues that matter to them, whether it is the role of Tatmadaw or the ongoing Rohingya crisis, which is, in fact, almost completely stifling dissent within the country.
The existing public space remains precarious, as we have seen in a recent event in Yangon. Ashin Min Thu Nya (aka King Zero), a strong critic of the Buddhist nationalists, including figures like Ashin Wirathu, had to move his press conference from the Myanmar Journalist Network to a lesser known location after a heavy showdown with Buddhist nationalists. A local reporter who was present at the cancelled event remarked, “some nationalist monks stopped event organizers and asked why they had canceled the press conference, with a few even displaying physically aggressive behavior.” This is a clear example of two dissenting voices in confrontation. In my opinion, these types of confrontations, as long as they remain non-violent and respect norms of reciprocity, are necessary for democracy to work. After all, should people democratically choose an authoritarian government, there would not be much democracy could do about it. Therefore, they are by themselves to be neither denounced nor applauded, but to be observed as part of a vibrant democratic culture.
However, it is the responsibility of a democratically elected government to protect and democratize this public space, i.e., to ensure that dissenting voices get a fair hearing as well, and punish those who fail to abide by the rules. If the NLD government were after groups like the so-called Buddhist nationalists and the “we love Tatmadaw” folks, a blanket denial or whittling down of democratic rights is not the way forward. I am by no means arguing for a rights carte blanche. However, what the NLD government is failing to do is to firmly deal with these groups, for example, by not tolerating any forms of hate speech or violations of other laws. In a recent media appearance, the NLD-appointed Minister for Religious Affairs and Culture laments that the “government cannot act against rowdy monks without the backing of society”. Now, I am not so much calling for acting against rowdy monks as calling for the NLD-led government to act against anyone who fails to respect democratic rights and norms. If an 80% win in a general election did not constitute the backing of society, I don’t know what would.
In short, given that the country is far from experiencing a democratic boom, the NLD should take an expansive, not repressive, approach to democratic rights including of course the right to peaceful assembly and procession.
Aye Thein is a Research Fellow based at the Department of Politics and International Relations, University of Oxford. He currently works on the “Understanding ‘Buddhist Nationalism’ in Myanmar: Religion, Gender, Identity and Conflict in a Political Transition” project, funded by the Economic and Social Research Council of the UK.