The Law on Organisation Registration: its impact on Myanmar CSOs

Welcome to the Asia Center podcast on Foreign Interference Laws in Southeast Asia, brought to you in partnership with the Japan NGO Center for International Corporation. I'm James Gomez, the Regional Director of Asia Center. In this podcast series, I will be speaking with individuals across Southeast Asia about recent developments around foreign interference laws and its impact on civil society in their respective countries. In October 2022, the Myanmar Junta enacted the new law on organization registration, repealing the previous registration of organization law 2014. This law regulates the registration of NGOs and INGOs. It affects primarily the latter. With the new law, at least 40% of the executive membership of an INGO must be made up of Myanmar citizens. Furthermore, it also expands the requirements and INGO must meet in order to operate in the country, such as obtaining approval of the relevant authorities regarding its intended programs and activities. Observants believe that the law is part of the Junta's attempt to restrict CSOs advocacy on human rights and implement the forecast strategy to undermine ethnic militias by cutting the access to food, funds, information and recruits. In this podcast, Dinsa Wu talks to Asia Center about the impact that the law on organization registration has for Myanmar CSOs advocacy on human rights. Dinsa Wu is a resident scholar at the Public Law Center at the Tulane University School of Law in the United States. Dinsa is the co-founder and program director of the Public Legal Aid Network, popularly known as the Plan in Myanmar. With background in industrial and labor relations, project administration access to justice and rule of law, Dinsa Wu has had more than 25 years of private and public sector legal experience both in Myanmar and the wider Asia Pacific. Today, we have privileged to have Dinsa Wu, who is a resident scholar at the Public Law Center at the Tulane University School of Law. Then, welcome to the program and tell us broadly about this new law on organization registration that was rolled out in 2022. In particular, tell us why the Junta came up with it and how it affects local NGOs and IA NGOs. Over to you, Dinsa Wu. Thank you so much, James. And thank you, Asia Center, for putting together this very important podcast. And I will go to a small presentation detailing this 11 chapters and 58 provisions of this law. And I will try to explain through what through this so that people have a better idea about that. But first of all, just let me do my due diligence and, you know, it's sort of like a disclaim a little bit about where we stand as the also the focal of the public legal eight network civil society organizations and network in Myanmar. We just wanted to make sure that our colleagues know that we are condemning the military and coups. So we do not actually engage or react to any kind of legislation that they come up with because we think that the coup itself is illegal and democratic institutions being under pressure and oppression right now. But at the same time, all of us civil society should know what this law is about and how it can impact people who are operating and still working in Burma and with different communities. So going back to, you know, coming up with this presentation, I just wanted to talk about the very specific provisions that are different from previous laws before the coup. So there was 2014 original law and then 2019 amendments. Both of them are voluntary registration. So in order for you to be civil society, you do not need to register. It's up to you if you want to. Nobody is going to force you to do that and you are free to operate as long as you are doing everything legal and other by other laws. But in this particular law that Hunta has come up as of October 28, 2022 has very specific deadline for registration, which is within two months. And from chapter one to chapter 11, they are very specific criminalizing provisions and I want to walk through that. So in chapter one, there is very specific definition, which is a new definition of what a national association is. So in an official translation, this law in Burmese, Tim Poyn, my book, Dinshian, Saya, Ubudee in English would translate as association registration law. So it defines in chapter one, article 2c, what a national or local association is. And it has elaborate definitions of a very narrow scope of their definition, which because the narrow definition is only for "social work". So it must be non-profit and it must only do social work. And it has to be with citizens. So these are the language that the previous laws never had. The other thing is the non-governmental international organizations, which is the article 2d. It has very specific language about how 40% of its executive directors or executive committee has to be with the citizens of Myanmar. And it has to be the branch office, again, very specifically about from another organization that are based and registered in another international country. For example, another country, there must be a registration and it must be official. It must be legal and binding with these country registration laws. So you have to have these other basic requirements fulfilled in order for you to be called international like NGO in Myanmar. So that is also in a lot of ways interpreted as a very bordering provisions. And in chapter 1, article 2g, there is a definition about what social work means. And this is very narrowly defined just to make sure that any other interpretations are not possible. So, and then they actually in age, they also have the person in charge who are the citizens of Myanmar is also defined. In chapter, so another thing that we all knew, like since the military coup, the governing ministry, which is the general administration department, the governing agency is now from going back under the Ministry of Homeland Affairs. So they no longer under the president's office anymore. So there is like policing authority under the Ministry of Homeland Affairs. And then the Ministry of Homeland Affairs, as you all know, is reporting directly to the military like top council. So in chapter 2, there is almost like not much change from previous law, but if you look at carefully, the legality and accountability is very specifically emphasized. So that is how the associations are going to be scrutinized. And the chapter three details, all the due process, kind of like a procedure for how to register. And then this is like the generic hierarchy from national to regional or state to there is only a language difference. They no longer call it a council, they call it union territories. And so basically it's about how things are structured in those like registration bodies. And it's cut off at the general administration department level. It's no longer has other multi-ministerial entities like in previous laws. And one thing that we all should pay attention is chapter three, article six, where if you are to civil society and if you are to register, there will be vatting process and there will be decisions whether you will be approved or not approved. Or that your previous registration will be dissolved or like withdrawn. So if you compare with the previous laws, it is voluntary registration from the first place. And then if there is any kind of rejection for any reasons or denial of registration, then you can appeal. And there is no finality in the previous laws. But here there is a very specific finality about what you cannot do when once there's one appeal and then once you get rejected after that appeal, the organization can never register anymore. And then there is very specific language about money laundry and terrorism. And as you all know, this is where those other anti-terrorism law amendments kick in. And when any entities are considered associated, then this will get into this law and then all these criminal liabilities will be construed. And then the other thing is there will be scrutiny on the assets. And then the the finance and then there is a reporting requirement. And the reporting requirement is almost like very unrealistic because it is actually three monthly report. Every three months you have to report. And then every renewal is three months ahead. So the other thing is the registration process, if the chapter four, it actually almost looks like the same entities in the previous laws, but there is a very specific additions if we look through that. And then in the chapter four article seven, G, there is endorsement from specific government agency that needs to be secure before you can get your specific registrations. And the other the turnaround time used to be seven days, but now it's changed to 21 days for processing even to get a temporary permit. And the decision is 30 days. And there is there is like a registration fees that are also secularized. And there is like a pretty spike from previous laws because in a lot of provisions in the previous laws, there are three. And here every single hierarchical organization has like the price tag for each application. And so we will, so there are from 500,000 shirts and downwards. And the lowest is about 50,000. And then we actually will skip for the sake of time, but we can also provide further details. But this is pretty much chapter three is about, the chapter four is about processing of those due diligence application process. And then there are penalty for compliance. And then they actually make sure that even though there are union level, state level, you know, state or region level. And then all the way to district and township, there are no there's a very specific provision that you cannot actually have an overlapping registrations. And then if there is a denial from one, then you cannot get into any other layers of registrations as well. So if we look at chapter five, which is details on non-governmental international organizations. And this is actually quite extensive. And they make sure a lot of items that the military have been worrying about implemented and translated into this provision. So this chapter five, article 17 has to have, you have to provide if you are international organization, the background and the like the legacy and the historic like records and where in your base country, what are the actual, the details of records and work records. And at the same time, you have to have this in the item I under the article 17, I, you have to have MOU member random of understanding they didn't really specify with what entity, but we assume that this will be those like governing or corresponding counterpart agencies within the MIEMA government entities. And then they have to have very detailed purpose. And so if you compare this with previous requirements and the previous law, there are many additional items and most more than like 10 items are additional. So and then there also need to be ministry of foreign affairs, opinion letters and then they have to have a minister of commerce and international trade or immigration, ministries like endorsements. And then all these like specific branch offices and everything. And like we also have these like process for international organizations and the registrations, the penalties, their decision making times and failure to renew and renew and advance. And when the renewal can be rejected or including like the previous application can be rejected and how it will affect which is actually that you cannot register anymore. So that is pretty much the details in a nutshell, but the chapter six is basically about the extension like and here even though it seems like an important additional chapter, what we worry as civil societies is the exempted organizations are where some entities that will directly or indirectly do political work. So if it is not a political party, if it is not any other registrable entity, registration, able entity, then any entity that will be allowed and exempted from this to do religious and economic and political entities could be, we are worried that those like extremist entities can be allowed to operate under the shadow of this law as well. So this is something to be to be flacked about as well. And the other thing is the responsibilities and basically the design of the constitution of that association and how it will be stipulated is under chapter seven. And then I will skip through to most of them because some of them are not as alarming as the the other chapters and but everything should be scanned through properly so that we're not missing and the reporting requirements is like again every three months. So the most alarming parts is from Chapter 8 onwards because there are three ways to take action. Chapter 8 basically details all the administration to actions that you some civil society can be taken action and then taken action towards and then there are prohibition. So there's very specific and expressed language about how any entity cannot be operated without registration. So it was expressly prohibited and even if you are United Nations some of the language under Chapter 9 article 33 onwards could probably be affected. And the Chapter 10 is basically criminal penalties. So you have Chapter 8 to Chapter 10 is basically administrative and then prohibitions and then the criminal penalties. And under the criminal penalties you have two years of imprisonment or one million chats and then there are also the small as light two years and 100,000 dollars, 100,000 chats or something like that. So but so this criminal expressed language is also quite bothering and the other thing is under general. That's where you know that the organization tenure or perhaps you might probably call it the the the land of time that the registration actually stays five years which is the same as before but here there is 90 days to renew before the end of the you know the the 10-year and then you also need to be aware that based on all these criminal and civil and administrative penalties or prohibitions any kind of non-compliance if the the counterpart entities construed then you can be taken action. So it is pretty risky for for anybody who will have to register and then because you have to abandon the previous registrations that could be a problem. And so the article 55 specifically stipulate that before this if there are any entity that actually had registration or without registration then you know put as an association and and you only have 60 days to get a registration. So the 60 day is basically December 2022 so everybody is actually in the other side of the the line already. So but I think that pretty much say what this law is about and please people who ask any questions. Thank you Thin for that very comprehensive and detailed explanation of the law and registration the law and organization registration and in particular how it differed from the previous registration of organization law. If I can just sort of follow up very quickly from this form of law in your opinion and experience observation and conversations how does it affect the day-to-day operation of you know CSOs in the country now considering the current political landscape following the coup two years ago. Yes realistically the way that civil society worked in Myanmar even you know if we remember like 2011 the buzzword quote unquote civil society only appear around 2011 onwards when you know association can register and the thing with the the way that civil society work is that whenever there is need for help there is either humanitarian human rights or any other type of you know desperation or crisis that happen among the communities the community put together their resources and mobilized it and the people help other people. So as long as that concept work it has been working since before 1988 after 1988 and even now on day-to-day basis and since military coup we all know that anybody who is helping with political prisoners or like humanitarian age to the refugees or like displaced communities you are at risk either as an individual or organizational as a community against this prosecution for you know prosecutions and even your life is in danger for helping people like that. So people have been doing things without the banner of any organizations or even exposing themselves and still help other people. So as far as that concept goes and as far as some people need help and some people can help I think the civil society on the ground in Yemma will keep continuing just like us but we have no choice but to keep doing what we are doing as long as people can you know help each other but in terms of institutionalized organizations and the organizations that are having those offices and very specific duty and very specific bases and have more than informal duties and grassroots negotiations there are organizations that have more responsibilities beyond those grassroots efforts and that kind of organizations will specifically hit into the requirements and compliance requirement of this law. So they may have to construe like the they may have to actually you know look into it see what they can do how far they can compartmentalize those political assumptions by those counterparts and then make sure that they could mitigate all risks that come with this law and still you know actually process their registrations because some of some of them may probably have no choice but to do it and then of course there may be a lot of presumptions and assumptions about whether we should or should not do it but we have to also you know realize in their own defense that they may probably need to right so in that sense I think this will bring a lot of challenges for some organizations but as far as the the crisis and the crisis affected communities goals and humanitarian or human rights access to justice kind of help I don't think the mobilization and you know sort of like efforts will die down just because of this this law because even since military coup it didn't die down so I think that will continue either way. Yeah just falling on the the the coup there are you know the people defense forces will disappear the movement the national unity government and also the ethnic groups all of them you know are joking to try to bring Myanmar back to the days before and to deal with all this anti-coup movement in doing so what is the implication or impact for CSOs that who operate with some of these elements? Yes there is a very expressed language again about those organizations that are already defined by this like military state administration council as either terrorism or disruptive forces right and the other thing that I may probably need to draw attention to the reader of this law is basically that you could lose your registration status or you may be denied registration simply because you are dealing with multi-stakeholders and the multi-stakeholders include the those NUG, PDF and other you know NUG related or revolutionary related entities. So simply by having any form of communication or engagement or even dialogue, it could affect and impact very negatively on your status of registration or your ability to register. Or the risk again is you yourself as in your organizations can be regarded as the the criminal or like illegal association. So there is a very specific risk and I think these are one of the purposes and objectives that the military wanted to deliver with this law. And with the law, can local NGOs or NGOs simply ignore it and not comply with it? Or how are they dealing with it? Are they resisting it at all? Yes, in terms of mitigations like from our like this may be limited to what we do as the current civil societies, networks and networks of entities on the ground. So there are two things that they can do to mitigate that. One is you may probably have to stop working under your name, under your banners, under your organization structures and from your offices or from your bases. As long as your operation is deliverable with your own means and your own ways, with your own protocols. As long as your clients or the communities that you are serving is served by you and that you can deliver your duty. Regardless of however structure that you deploy, if that is still happening and the results are seeable and whatever process that you put together is accountable, you will be able to continue. But unfortunately, it may not be with institutionalized structures or whatever foreseeable that we have been in the luxury of being able to do. So in that sense, you will be able to continue. The other thing is some of us or some of the organizations may, for because of their own structures or the way that they operate or the way that they advocate, they may not be able to do that and they may still need offices, they may still need bases, they may still need to interact with the the hunter and they may still need to deliver their services in a more structured ways. In that sense, if that is the case then they may have inevitably have to look into the law and that basically have to reform basically another structure that 100% comply with whatever is needed and you may probably have to put layers so that your policy or political stand is compartmentalized from what is required by the existence of the structures that you need to put on the ground. So that is the second way and how you do that, you may have to come up with a lot of innovative ways but again, the compartmentalization may need to you know to to carry out in order to comply because there is no way that you can freely and outspokenly engage with all the stakeholders why you can comply with this law because this is not this is not how you know it will make sure that you won't be able to do your job if you have to comply 100% with that and the the third way we just not for civil society, but for the bigger stakeholders out there is that this is definitely in compliance with the ASEAN framework that come up with and this is absolutely not you know in compliance with the United Nations Security Council resolution so having this kind of law and scrutinizing the the unbiased stand of some of the civil society and affecting all of that military should revisit this law and should not enforce it or should not selectively enforce it and at the same time not enforce it at all because otherwise when we or another it will always affect someone or some communities and and and this is really bothering because what military has to comply with in the outside of its jurisdiction it is not doing it at all so it is it cannot forget that there is a resolution passed against it it cannot forget that it has a ASEAN five point plans that is they still have to look at and there will be a lot of dialogues and stakeholder conversations this will be in the way. I see so given this you know challenging and difficult scenario especially if you want to work within the country and if some of your work relates to civil and political rights or even free expression or media do you think the future of civic engagement in Myanmar is likely to be outside of Myanmar or how do you see it you know at least penning up in the short to medium term when the junta is so deeply entrenched. Well I could observe what is happening from the 2021 February 1 to now is that we have seen a trend adapted by our counterparts and our colleagues on the ground and outside of Burma and fundamentally wherever there are you know those affected communities and vulnerable groups that are affected negatively by the military and their actions and atrocities whenever the need you know kind of like exists there is some sort of help and attempt to help exist so in that sense the civil societies are kind of like very innovative in making sure that that helped happen so we've seen that that it's been happening in many ways so it is actually irrelevant to the geographical locations or where where even like as simple as whether it is inside Burma or outside Burma so everybody is talking about and talking against the military's actions and its consequences and atrocities in the platforms that are outside of Burma in UN in UN Security Council in the development partner countries and their governments and all the platforms whatever available out there there are civil society representatives talking and representing Burma it never disappear at the same time whenever their communities needing help whether it's in Kaya State or Chin State or Yangon or outside of Burma in border areas people are putting together you know resources and then civil societies are mobilizing that to reach to those groups so as long as there are groups that need help and the help is there and the other groups are helping to reach that help to the required communities I think on the ground it is still happening so even though the civil societies evolve into another form of operations I think we cannot say that oh civic engagement how do we do that I think civic engagement never stops and there was no gap there was no like we can't show there's a timeline before coup after coup where the civic engagement stops and where it reappears to me personally I think that it never stops and it even continue and like even gain more momentum and force speak the only thing that change is that the ways and means and methodology and who provide that help change one thing that I want to warn though is that we are we are also seeing a lot of entities that are known entities and entities that are deployed by military itself starting to occupy the so-called civic space and they call themselves civil societies but when you look into it they are extremist organizations or they are organized the kind of entities that help military to roll out and implement the military's agenda. So in that case we've got to be very careful who is occupying the soul. called Civic Space. And the Civic Space is beyond a branch and office or where in geographical location. So we've got to be even realizing ourselves that how this definition goes even for our interpretation. Thank you, Sen, for that very comprehensive and detailed explanation that also kind of projects. What other nuances we need to look for because it seems that we also need to be clear and careful about who civil society is and what they're actually doing and for whom. Dear listeners, that was Tinsa Wu, a resident scholar at the Public Law Center at the Tulane University School of Law. Then once again, thank you very much for joining us in this episode. Thank you James. You can find more information about this and other podcasts on our website as well as Asia Center's Spotify account and YouTube channel. 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