PPI Special Report
The following is a guest column from PPI friend and sometime contributor Earl Brown, Labor and Employment Law Counsel for the American Center for International Labor Solidarity.
If you want to see what a society without law or civic space looks like, go to Burma. A half century of military misrule has devastated this once fertile center of Asian science, scholarship, law, commerce and civic debate. But in this desert, Burmese activists are preparing to seize the potential democratic space recently opened up by the new regime. Last month, it issued a new labor law, the Labor Organization Law, which appears to allow independent unions to register and function legally for the first time in memory.
The new law allows the creation of new unions, with a minimum of 30 members. Burmese trade union activists are now using this new labor law and filing papers to establish free trade unions. In the past few weeks, groups of woodworkers, garment workers, hatters, shoemakers, seafarers and other trades, including agricultural workers, have registered openly as trade unions. After decades of unceasing international pressure and sanctions to little discernable effect, outside watchers of Burma are eager to see positive movement and are praising this new law. They see the new labor law as part of other highly publicized initiatives by the regime to open up Burmese society. For example, Burma’s new president has recently received the leader of the Burmese democracy movement, Daw Aung San Suu Kyi, in a highly publicized audience. The Burmese regime released 200 political prisoners in October and has also cancelled a huge dam project with Chinese construction firms that was fiercely opposed by villagers.
Whether these apparent openings—including the new labor law—are real is a matter of debate by those following events in Burma. All are watching to see the reaction of the Burmese regime to the efforts by Burmese industrial workers as they organize under the Labor Organization Law. Will the regime actually allow free unions?
Autonomous unions were once among the pillars of the robust civil society in Burma that had grown up in the face of British rule, fueled by a fierce desire for independence and democracy. Unions helped build this vibrant and diverse civil society by giving voice to industrial workers. Alongside associations of scholars, students, professionals in various disciplines, including lawyers, religious folks in temples and churches, ethnic and political parties, unions laid the basis for Burmese democracy. So did the Burmese bar.
True, many of Burma’s laws were repressive imports from colonial India. But the independent and anti-colonial Burmese bar was populated by talented advocates and drafters, employing both Burmese and British traditions and languages. In this bar, a skilled group of labor lawyers waged vigorous advocacy for both sides of the industrial relations equation, for unions and employers.
When General Ne Win seized power in the 1960s, however, he launched an attack on the diversity and vigor of Burmese civil society. Using the slogans of socialism, General Ne Win sought to replace peaceful debate about and advocacy of divergent interests with the dreary and artificial “harmony” of military rule. The honest articulation of any interests beyond those of the military was suppressed in the name of order. In this imposed order, unions, and lawyers as vehicles of advocacy and debate became targets. After 50 years of suppression, these once proud traditions of democratic trade unionism, of legal advocacy, and of civil debate eroded and eventually disappeared.
The demise of a vigorous civil society and civic debate did not steal the impulse for democracy. But it did eliminate robust traditions of independent trade unionism and law. Unions and legal institutions, such as independent lawyers, could have helped check the repressive hand of Burma’s military junta. That is why they, and most other independent civil society organizations, became targets of the military.
In her 2010 speech to the Community of Democracies on civil society, Secretary of State Hilary Clinton explained why dictators are impelled to suppress unions, lawyers and the other building blocks of that civic pluralism and robust advocacy so essential to sustaining democracy beyond elections:
Our democracies do not and should not look the same. Governments by the people, for the people, and of the people will look like the people they represent. But we all recognize the reality and importance of these differences. Pluralism flows from these differences. And because crackdowns [to civil society] are a direct threat to pluralism, they also endanger democracy.
Freedom of association and expression is the air that union movements and lawyers must have to breath. Guaranteeing those rights is thus one first step to rebuilding the pluralistic Burmese civil society so necessary to democracy and economic development. Unions and lawyers are clearly key to recreating the vigorous democratic civic world and discourse that have been suppressed and degraded for so long inside Burma, and so necessary to any Burmese revival.
If you worry, like so many Americans, about excessive regulation, just check out recent Burmese history—where military officers can get a piece of your enterprise or endeavor at their whim. Talk to the Burmese entrepreneurs who without consent, compensation or process acquired new and rapacious military “partners” in their businesses. That’s what a world without rules and regulations looks like. A world without law, process, or lawyers does not have the diversity of interests needed to insure governmental accountability.
The International Confederation of Trade Unions (ITUC) has just completed an analysis of the new labor law, pointing out its many defects. It allows for the complete suppression of strike activity for wages, hours and working conditions. This important economic law was issued without any consultation with unions, independent scholars or employers. It is poorly drafted, and not harmonized with other Burmese laws or the new Burmese Constitution. It lacks clarity and important detail, and sadly reflects the deterioration of Burmese legal traditions such as draftsmanship. But, despite all these negative features, this new law seems to allow for registration of autonomous trade unions. The woodworkers and other workers who are registering under the Labor Organization Law will give the outside world, and Burma itself, a real test of whether this initiative in the direction of a freer civil society is genuine.
We, on the outside, will not only be able to see if the apparent opening of civil society is real, we may also see the recreation of a robust civil society with unions and other civic associations as new soil for the growth of democracy and the rule of law inside Burma. All concerned with the rule of law and democracy in Burma and Asia should keep their eyes on the efforts of the Burmese woodworkers, garment workers, seafarers and others to register free unions. Their efforts will tell us all if the openings are cosmetic for outside consumption or real for use by Burmese civil society.
 Clinton, H. (2010, July). Civil Society: Supporting Democracy in the 21st Century. Speech presented at the Community of Democracies, Krakow, Poland.