Burma Must Repeal Repressive, Outdated and Unconstitutional Colonial Era Laws
23 November 2011: (Legal Analysis) The post-independence civilian and military regimes in Burma uniformly detest the British colonial regime (1800s-1948); however, Burmese governments seem to love the hundreds (perhaps thousands) of laws that were enacted by the British regime to suppress its colonial subjects. Indeed, post-independence governments in Burma have continuously utilized colonial laws to suppress Burmese citizens. These laws are in direct conflict with the Nargis Constitution (the Constitution of the Republic of the Union of Burma, 2008) and contradict international human rights standards. Accordingly, they should be repealed outright or amended by the current Hluttaws with President Thein Sein’s signature and declaration. The following are among the many colonial-era laws utilized by President Thein Sein’s government to defend itself and to suppress the people.
The Arms Act (1878)
The Arms Act, enacted by the British colonial regime in 1878, prohibits the possession, production and usage of arms. The colonial regime used this law to subdue the freedom and independent fighters among their colonial subjects. The successive Burmese governments proudly inherited this law from their colonial master and used it to prevent ethnic minorities from acquiring arms, thus curbing their defense from military oppression. Instead of repealing the colonial law, the independent Burma’s parliament amended the Arms Act (1878) in 1951 under the new title “The Arms (Temporary Amendment) Act,” and the authoritarian socialist regime re-amended the law in 1977 as the “Regulation on Holding of Firearms”. The original law enacted by the British in 1878 and the two amended laws enacted by the Burmese governments in 1951 and 1977 prohibit possession of arms, and forbid manufacturing, converting, selling, importing, exporting, and transporting without license any arms or ammunition (including air guns).
Since 1878, these laws have deprived the people of Burma of the right to possess certain arms. Moreover, they have deterred the people from protecting themselves from encroachment of their fundamental rights guaranteed by the constitution and international human rights instruments. Furthermore, the worst is that the post-independent governments in Burma often utilized these century-old laws, and the subsequent amended versions, to suppress innocent citizens and remain in power.
The present government must repeal these laws and amend them accordingly so that the people of Burma can protect themselves from all dangers.
Unlawful Associations Act (1908)
The Unlawful Associations Act of 1908 is among the oldest colonial-era laws still in force in Burma. The British colonials adopted this law in order to crush those who opposed colonial rule and fought to regain freedom and independence from their colonial master. Appallingly, since 1948 successive regimes in Burma have used this law to promote, protect and safeguard their safety, wellbeing, benefits, and interests; and, to suppress their opponents and minorities who are demanding equality. Indeed, almost all prisoners of conscience behind bars today in Burma are being charged under this injudicious colonial law.
The Unlawful Associations Act is not only antagonistic to Article 354 of the Constitution of the Republic of the Union of Burma, but also unambiguously in conflict with the Universal Declaration of Human Rights and other international human rights instruments. Moreover, this law directly opposes the Freedom of Association and Protection of the Right to Organize Convention (1948) (No. 87), to which Burma has an obligation of strict compliance. President Thein Sein’s government must not use this law as a shield to protect itself, and to suppress it citizens.
Given that Burma favored the adoption and promulgation of the Universal Declaration of Human Rights and will chair the Association of Southeast Asian Nations (ASEAN) in 2014, the current Burmese government must repeal this law immediately and unconditionally, and release all prisoners of conscience who are being charged under this law.
The Official Secrets Act (1923)
The British colonial regime adopted the Official Secrets Act in 1923 in order to achieve their aims by denying their subjects the right to freedom of information. The Official Secrets Act makes it an offence to possess, control, receive or communicate any document or information where disclosure of which may have an adverse effect on the sovereignty and integrity of their colonials, or may affect colonial countries’ foreign relations, or threaten the safety of their empire. This colonial-era law grants the Burmese regime the authority to classify any information as secret.
For example, when President U Thein Sein suspended the Myitsone Dam project all information regarding the project and its suspension was sealed. Vice President U Tin Aung Myint Oo stated that the reason for sealing the information was based on the “Trade Secret Act,” without referencing the exact provision or relevant information in the Act.
The Official Secrets Act (1923), which has been utilized by the British colonials and the successive Burmese regimes, prevents transparency and accountability of the government.
Enforcing the prohibition of freedom of information on the basis of national interest is in direct violation of Article 19 of the Universal Declaration of Human Rights, which secures the citizens’ fundamental right to know what their government has been doing. Therefore, the Official Secrets Act should be repealed immediately and unconditionally.
The Burma Wireless Telegraphy Act (1933)
The British colonial regime enacted the Burma Wireless Telegraphy Act in 1933, prohibiting the possession of any “wireless telegraphy apparatus” without official permission. The State Law and Order Restoration Council amended the colonial law in October 1995, prohibiting the possession of fax machines without license; and further amended the Act in 1996 by prohibiting the possession of computer modems. Anyone in possession of these apparatuses without official permission is liable to face imprisonment for up to three years or fines of up to 30,000 kyats. The prohibition of acquiring information through modern technologies not only violates Article 19 of the Universal Declaration of Human Rights but also breaches the fundamental rights of the people enshrined in the Constitution of the Republic of the Union of Burma. Therefore, President U Thein Sein’s government must repeal this colonial law and re-write it in accordance with the constitution of Burma and international standards.
We are living in the 21st century and not in the 1900s, therefore these colonial-era laws must be updated in accordance with Burma’s Constitution and international human rights standards. Failure to repeal the colonial regime’s outdated laws, or to amend the laws in conjunction with Burma’s Constitution and in compliance with universal human rights standards, will not only undermine the credibility of President U Thein Sein’s government but also will hinder the restoration of democracy, human rights, rule of law and national reconciliation in Burma.
By Dr. Salai Ngun Cung Lian
The author is a Post-doctoral Appointee at Indiana University Maurer School of Law and Assistant Director of Center for Constitutional Democracy.