Fighting Corruption Needs Independence
By The Irrawaddy 16 March 2019
Kyaw Zwa Moe: Welcome to Dateline Irrawaddy! This week we will discuss the actions of the Anti-Corruption Commission (ACC), for which we should say ‘”bravo.” The ACC has filed a complaint against and detained Tanintharyi Region Chief Minister Daw Lei Lei Maw under the Anti-Corruption Law. This is what the majority of the complainants wanted to see. We will discuss how effective the ACC was over the last year, what its shortcomings are and how important it is to fight corruption to establish democracy. Daw Moe Moe Tun, leading member of the MATA (Myanmar Alliance for Transparency and Accountability) and GPS (Genuine People’s Servants) director and Access to Justice Initiative leading member Ko Thwin Lin Aung join me to discuss this. I’m The Irrawaddy English editor Kyaw Zwa Moe.
From the point of view of the people and of public spending, it is good news. The National League for Democracy (NLD) has taken harsh action against a minister it appointed. What is your assessment of the ACC since it was formed in November 2017? How much are you satisfied with its actions?
Moe Moe Tun: After it was reformed in 2017, it tried to engage with civil society organizations and the general public. And the Anti-Corruption Law of the previous government was a mere anti-bribery law. The commission also amended it. Though it is still not perfect, it has become better compared to the past. Though the commission still has shortcomings, it deserves credit for taking action against a chief minister, as in Daw Lei Lei Maw’s case. But still, questions remain. We’ve always asked them how far they can go.
MMT: The commission can launch investigations into civil servants who appear to be suspiciously wealthy at its own discretion. But in our country there are many corruption scandals [involving civil servants] besides Daw Lei Lei Maw. And there are cases in which the ACC said that by law it couldn’t take action. So we always question how independent it is in reality.
KZM: Its independence will reflect how much integrity it has. The ACC set out six codes of ethics in May 2018. They are integrity, independency, accountability, transparency, fairness and inclusiveness. Ko Thwin Lin Aung, I think it all depends on political will, the commitment to fight corruption. U Thein Sein’s administration did not handle any corruption case effectively, and it lacked political will. What is your assessment of the current situation?
Thwin Lin Aung: Optimistically, as the current government has the will to fight corruption, there is increased anti-corruption activity, which is good. But its independence, the second point you mentioned, is negative.
TLA: The anti-corruption commission should take necessary action at its own discretion without fear or favor.
KZM: But ACC Chairman U Aung Kyi has said so unequivocally.
TLA: But the reality is not the case. The commission under U Thein Sein’s government did not work effectively. At that time it was not chaired by U Aung Kyi, and it barely worked. Under the NLD government, especially after U Win Myint became president, the government has worked actively to fight corruption, and the ACC has followed suit. But there are things the government is unwilling to do. We are satisfied with the ACC’s action in Daw Lei Lei Maw’s case. We praise it. But it appears the ACC touched the case only after lawmakers filed a complaint. But according to the amendments introduced in 2018, the commission can launch an investigation once a scandal erupts. The scandal broke some three or four months before lawmakers filed a complaint. There was a flurry of posts by Tanintharyi locals on social media. So there are such restrictions. And there are also restrictions imposed by the 2008 Constitution. Chairman U Aung Kyi himself has spoken about it.
KZM: What are they?
TLA: For example, in the cases that involve the Tatmadaw [military], the commission can do nothing even if it receives complaints. The law states that any matter related to the Tatmadaw can be handled only by the Tatmadaw, and nobody can intervene. There are big restrictions such as this.
KZM: According to the ACC, most of the complaints that are filed involved [civil servants in] Yangon Region. But little action has been taken in Yangon against bribery and corruption. And in the case of [Yangon] Attorney General U Han Htoo, the president had to intervene. It appears as though the case would not have been revealed otherwise. What can the commission do to respond to scandals not only after receiving complaints? I’ve read about an official complaint by former Yangon Region lawmaker Daw Nyo Nyo Thin regarding the report of the Yangon Region auditor-general and the loss of public funds. We have heard nothing [from the ACC] in response. What is your view on this?
MMT: Let’s take a look into cases it has handled. The ACC took action in U Han Htoo’s case at the instruction of the president. Lawmakers including the Parliament speaker filed a complaint with the president. So the commission conducted an investigation at the instruction of the president. This is what we presume, and the reality is not different. So we have always asked about the extent of its authority. We’ve asked recently and are still asking today.
KZM: You asked the commission?
MMT: I will keep asking. We should question its authority and independence, because it did not take action immediately after the scandals but only after the president gave approval. Regarding the complaint by Daw Nyo Nyo Thin that the Yangon Region government’s proposed projects were not in line with the development program based on the Yangon Region audit, it is clear that it is the case. But the commission didn’t take action. So we should ask who we, the general public, should file complaints with. But to draw a conclusion from its current behavior, the final decision is made by the president.
KZM: It has to do fact-finding to take legal action. As I’ve said, the political will is the key factor at play. There were many problems due to the lack of political will under U Thein Sein’s government. The commission has the political will, but its mandate is limited. So what suggestions can experts and CSOs [civil society organizations] make to improve the situation?
TLA: Regarding independence, CSOs and those who have the right background should be appointed to the commission to ensure checks and balances. And there must be legal guarantees, which also concerns independence. When the Anti-Corruption Law was amended for the fourth time in 2018, the one and only legal guarantee [added] was the provision that allows investigations in response to scandals. And we have called for the review of another amendment that criminalizes the bribe giver. We divide bribery in two: positive bribery and negative bribery. Some give bribes for their personal interest out of greed. In that case, it is OK to take action against the giver. But on the other hand, there are cases in which one has to give bribes to prevent suffering, for example bribing [hospital officials] to get a medical operation done for their children. So we have called for amending the law in that regard. But it was not changed. In some cases it [the ACC] pardoned the givers as prosecution witnesses. In Daw Lei Lei Maw’s case, as the givers gave out of greed, they were arrested. Another thing is that it can’t take action directly against a civil servant because of the Civil Servant Law. It has to inform the heads of the concerned departments. The commission said in its statement that although it received complaints against over 20 [civil servants], it could only take action against six or so. It appears the others fled after their department heads were informed by the ACC. So we proposed changes to cover this weakness. But no amendment was made. But as the president is willing [to fight corruption], it has issued an order to departments to take immediate action once informed by the ACC. It is working for the time being, but it is not a legal guarantee. It is because of the president. But what about when there is a new president? And what if the new president has no will? We have these questions. Overall, there must be independence. To ensure independence, there must be diversity within the commission. Only then will there be checks and balances within the commission to ensure independence. Another thing is that there must be strong legal guarantees. At present the commission is just acting according to the green light given by the government. It brakes when there is a yellow light. It appears that it braked when a yellow light appeared in Yangon and Tanintharyi.
KZM: State Counselor Daw Aung San Suu Kyi visited Tanintharyi and heard first-hand accounts. After she received the complaints herself, [the ACC] took quicker action. U Aung Kyi said that when the commission helped form corruption prevention units [in ministries], departments were reluctant to cooperate. To what extent does this represent a challenge for the ACC?
MMT: As we are engaged in EITI [Extractive Industry Transparency Initiative], we have to work together with many bureaucrats from the departments, and there are big challenges. Taking a look at the extractive industry, we found that the entire industry is systemically corrupt. So it will be a huge challenge for the ACC to form corruption prevention units.
KZM: As far as I know, only one unit has been formed so far, in the Construction Ministry.
MMT: For example, if a corruption prevention unit is to be formed under Ministry of Electricity and Energy, there will be problems between them. They won’t like being put under surveillance. So there are a lot of challenges. It is the right move to take action against the [Tanintharyi Region] chief minister. It has increased the credibility of both the government and the NLD. But there are still many bureaucrats who commit corruption regularly. There is a need to take action against them. That’s why we have been asking the commission if there are restrictions and if it has challenges fighting corruption. We, MATA, cooperate [with the ACC] because we have trust in U Aung Kyi. But it is very difficult for us to trust other members of the commission. Only when people think they can trust them will they file complaints. People are reluctant to file complaints because they don’t trust them.
KZM: When the previous commission was re-formed, 10 of the 12 members were replaced.
TLA: Most of them were replaced.
KZM: It is very difficult to change minds. From top to bottom, [the bureaucracy] is used to this [corruption]. All Asian countries are used to this. Laos and Myanmar are ranked together [on the Corruption Perceptions Index] by Transparency International. We are ranked 130 out of 180 countries.
TLA: It is 132 now.
KZM: So it has declined a bit. But it has improved compared to the period from 2012 to 2015. Some say that [the government] is brave to designate Yangon Region corruption-free. In reality that is impossible. So how long do you think it will take Myanmar to reduce corruption and improve its rank even if government leaders have the political will and the commission can work more effectively with greater independence?
MMT: It will take time, because people voluntarily pay grease money at departments to get things done more quickly. So each and every citizen must change this practice. So it will take time to get people to change their minds. If people have greater trust in the commission, this will be quicker. So far we have not seen the commission taking action in response to scandals. It takes action only after the president gives instructions. If the commission takes actions in response to scandals, it will win the trust of the people, and the process of changing people’s minds will be quicker.
KZM: The system has been corrupt from about 60 years, since the time of the Burma Socialist Program Party. So it will take time. Thank you both for your comments.