Myanmar: A Case for Right to Democracy to be a Human Right

As Aung San Suu Kyi was about to assume office in Myanmar, on the 1st of February this year, the Myanmar military -also called The Tatmadaw- staged a coup d’état by detaining the leaders of the ruling National League for Democracy (NLD), including Aung San Suu Kyi and President U Win Myint. This action was executed due to the garb of fraud in last year’s general election where NLD had secured a landslide victory and under the export and import law and the natural disaster Management law. Two more charges were added later on. Since then a large number of protestors have been wounded or killed and various parts of the country have been put under martial law. As a result, at least 150 people have died since the coup on 1st February, with about 2,200 arrested.

These developments have received widespread condemnation from countries around the world including the EU, the United States and Australia. The United States President, Joe Biden, labelled the coup as “a direct assault on the country’s transition to democracy and the rule of law”. In this background, this article argues that the right to democracy should be considered a human right. In order to present a coherent and tenable account, this article examines the situation in Myanmar in light of international law, and, second, it addresses to what extend the right to democracy has been applied in other jurisdictions.

Background

In simple terms, Democracy is about achieving a balance between dissent and agreement and not zero-sum scorched earth attacks on anyone who does not follow the orthodoxy of one political group. This sentiment was also echoed during the 1993 Vienna World Conference on Human Rights, according to its final statement, “Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing”.

This idea of democracy is further supplemented by the views expressed by former United Nations Secretary-General Boutros-Boutros Ghali who had argued that “human rights, equal rights and government under the law are important attributes of democracy”.

It was in April 1999,  that the USA had introduced a resolution titled ‘Promotion of the Right to Democracy’ in which it was emphasised that ‘‘democracy was itself a human right’’ and that it was ‘‘both a means to promoting human rights and an end itself’’. However,  the resolution was opposed by a large number of member states due to apprehension of future intervention by the USA in their internal affairs.

Seen in this light, the threats posed to the rights of individuals more specifically human rights and in a larger context, the survival of the democratic structure at the international level ultimately leads to the discussion of whether there should exist a right to democracy as a human right, because the more democratic a society is, the more we see human rights being honoured and protected. If the right to democracy is enshrined in the constitutions of countries, it would ensure better protection of human rights, growth, development and security.

Myanmar: Military Rule vs. Rule of Law

Myanmar has endured 50 years of rule under the military junta. The last five years had raised hopes for a brighter future but what transpired just before Aung San Suu Kyi’s party assumed office for the second time, has brought back memories of the old dark days where there was a disregard for democracy and rule of law. Such an act of nullifying the results of the election has happened in the past. In 1990,  when the first national elections were held, the NLD had won but the military disregarded the elections. However, at that time the military was ruling the country which was not the case in the 2021 coup which makes the fresh developments even more significant.

It was only in 2010 that Myanmar’s reputation at the international level began to recover when Aung San Suu Kyi was released from house arrest and the NLD was allowed to contest elections. As a result, the sanctions imposed on Myanmar were eased and trading relations were re-established by countries around the world. To illustrate, in the period between 2012 and 2017, foreign development aid increased from 285 USD million to 1.06 USD billion. This shows the importance of a democratic structure in the growth of the country and leads us to the discussion of what are the criteria that are required to be met for the right to democracy to be recognised as a human right.

According to Beitz’s, who was a Professor of Politics at Princeton University, there exists three claims that are required to be met: the reasonableness of the right, absence of which would lead to atrocities against right holders by municipal level institutions and it must not result in an undue burden.

To further understand this, I refer to examples from different parts of the world where the absence of a democratic structure has resulted in a violation of the right of its citizens as well as also throw light upon the examples where having such a structure has facilitated the exercise of rights by the citizens.

 Right to Democracy: Finding “the will” of the people

According to Article 21 of the UDHR, ‘‘The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”.

It cannot be emphasised enough that the human rights record of most European countries, Japan, Canada, Australia and New Zealand has received worldwide appreciation. The common thread among these is the presence of a strong democratic political system that aims to safeguard the rights of its citizens by upholding the rule of law, respect for individual liberty, protection from oppressive state interference and defence of human rights.

One such example where the municipal authorities violated the rights of its citizens in absence of a democratic structure that resulted in grave violations was the Arab Spring. In 2011, the Egyptian government had imposed a shutdown of the internet to suppress dissenting voices of its citizens which was in direct contravention of the covenant dealing with civil and political rights. It was the Special Representative on the Promotion of the Right to Freedom of Opinion and Expression who emphasised the gravity of the situation and urged the government to restore the freedom of expression and access to information for their citizens.

On the other hand, in countries like the US and Canada, the municipal authorities have ensured that democratic structure has facilitated the exercise of rights by its citizens. To illustrate, the Federal Communication Commission which is a public body in the US has come up with regulations for the service providers with regard to unrestricted access and impartiality towards legal content whereas in Canada, in the case of Irwin Toy Ltd. Versus Quebec (Attorney General) recognised the value of possessing access to the internet in terms of seeking and attaining truth; participation in social and political decision making and attaining self-fulfilment. Other examples where the reasonableness and necessity of democratic structure have been proven include raising voices against the subjugation of indigenous communities in Latin America or ensuring dissemination of information in Mexico.

Conclusion

In this respect, the role of the United Nations to ensure democracy assumes significance. The United Nations has put, on one hand, the idea of human right at the forefront of the issues dealt with by the international community which has given impetus to various non-governmental organizations to promote and protect human rights.  Nonetheless, the concerns regarding sovereign equality and non-intervention under Article 2 (7) of the UN Charter is something that places an obstacle in realizing human rights and more so when we argue for a right to democracy as a human right which is a direct interference in the internal affairs of a country.

From an international perspective, the United Nations needs to take up the responsibility as it has done in the past in countries like Kosovo to establish a democratic structure in Myanmar and take the lead and facilitate an international instrument that specifically deals with the right to democracy as a human right.

 

Abhinav Mehrotra is a  Lecturer at O.P. Jindal Global University and holds an LL.M. in International Human Rights Law from the University of Leeds. My research interests include International law, Human rights law, UN studies, Refugee law, Child rights and Transitional justice.

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