Dateline Irrawaddy: ‘We Cannot Forgive Dishonesty and Misconduct’

By The Irrawaddy 13 May 2017

Kyaw Zwa Moe: Welcome to Dateline Irrawaddy! This week, we’ll discuss the misappropriation of regional development funds by the former Magwe Division government led by U Phone Maw Shwe, a constitutional provision that prohibits retrospective action, and whether this provision will affect national reconciliation if more instances are discovered. Lawyer U Kyi Myint and NHK correspondent Ko Thiha Thway join me for the discussion. I’m Irrawaddy English editor Kyaw Zwa Moe.

The former Magwe Division government’s embezzlement scandal spread like wildfire in Burma last month. Former Magwe Division Chief Minister U Phone Maw Shwe misappropriated more than 7 billion kyats [more than US$5 million] and allegedly spent some of it on his party, the Union Solidarity and Development Party (USDP). The State Counselor’s Office and some National League for Democracy (NLD) leaders have said no retrospective legal action will be taken. Simply put, give the money back and we will not sue. Do you think this is right?

Kyi Myint: Politics is the most important aspect of a country. The general conception is that it comes before anything else. We should be grateful to Pwintbyu Township lawmaker U Tun Tun, who exposed this case. He asked a question about the alleged embezzlement in May 2016 and it took almost a year before we saw an answer. We are glad there is an answer now. But I disagree with the government’s decision not to take legal action, and I find certain points to be against the law.

KZM: Ko Thiha, there was an embezzlement—in other words, a theft—of public funds, and the new government said no legal action would be taken if the money was returned. This is a sensitive issue and the government is concerned that taking action will affect the country’s transition. Will the people accept the government’s decision not to take legal action?

Thiha Thway: There may be similar cases of chief ministers misappropriating public funds in other regions. We cannot forgive dishonesty and misconduct. We have no reason to reconcile with dishonesty and misconduct. I want Daw Aung San Suu Kyi to distinguish these two things [reconciliation as separate from punishment for misappropriation]. If there are similar cases in other divisions and states, I want the government to expose them and take legal action.

If it does not want to cause unnecessary tension, it could give amnesty in advance and then take action. I want the government to expose the cases and inform the public about all of the links, irregularities and wrongdoings. Even if there are no penalties issued, that is okay. The government could hand down penalties and cancel them immediately. But I want the government to thoroughly investigate and expose everyone who is involved as a warning so that other people do not do the same thing.

KZM: Chapter 14, Article 445 of the 2008 Constitution states that no proceedings shall be instituted against the military regimes of the State Law and Order Restoration Council (SLORC), State Peace and Development Council (SPDC) and any member of the government in respect to any act done in the execution of their respective duties. This amounts to no retrospection. Based on this, the director-general of the State Counselor’s Office said the new government would not dredge up the past, as there was a likelihood the transition could be affected. This is cause for concern. Does the Magwe Division case comply with that provision of the Constitution?

KM: From a legal point of view, it does not comply at all. However, this case needs to be considered from a political standpoint. Article 445 of the Constitution means no retrospective actions can be taken against things done in the times of the SLORC and SPDC—in other words, under the reign of [retired Snr-Gen] U Than Shwe. The provision also covers government ministers on the condition that they executed their respective duties. Clearly, killing, raping and stealing are not their duties. So, U Phone Maw Shwe’s case is against Article 445.

Again, under former President U Thein Sein, a law was enacted to give prosecutorial immunity for activities done in the line of duty. But the law was meant for U Thein Sein, not other people. Therefore, U Phone Maw Shwe is not eligible for provisions that ban retrospective action. He should be prosecuted under Article 3 of the Public Property Protection Law of 1963. The law prescribes a minimum of ten years’ imprisonment to a maximum life sentence. A law that amended that law was enacted in 1964, which clearly defined embezzlement of public property. U Phone Maw Shwe’s case clearly breaches Article 3 of the Public Property Protection Law of 1963 and does not concern the provision that bans retrospective actions.

KZM: Everything is sensitive in the current political landscape and there may be the possibility of a reversal because we are still in a transitional period. Do you think taking action against such embezzlement will impact national reconciliation, which is the most critical issue in our country?

KM: Taking action against thieves does not impact national reconciliation. We do not need to have national reconciliation with thieves. There have been satirical cartoons. In one such cartoon, a woman reading a newspaper to her thief husband says: “My darling, here is good news. You will not be arrested if you promise to give back the things you stole in installments.” Another says: “The competition of cooking the books—the first one across the finish line is Magwe Division, the second, Irrawaddy, and other divisions and states will soon cross as well.” Another one shows a policeman talking to his senior, saying: “Sir, people have been lining up to give back stolen things because it was said that no action would be taken if stolen things were returned.”

KZM: The government’s decision not to take legal action has become a joke. Magwe Division locals will be enraged because it was their money that was stolen. The first case was exposed in Magwe and the second case that is under investigation is in Irrawaddy Division. It is likely that there may be similar cases in other states and divisions. If lawmakers and ministers of the NLD government are dutiful, those cases [under the previous regimes] will be exposed, since our country ranks the lowest it has been on the corruption index in some 20 years. The government can pardon a single case of embezzlement, but if there are several cases, I am afraid it is a problem for national reconciliation.

TT: I would think that Daw Aung San Suu Kyi would handle this cleverly. As far as I’m concerned, the USDP has denied responsibility for the case. If the government handles the party [USDP] and individuals separately, it will not impact national reconciliation. But if it drags the whole party in, the party might resist.

KZM: U Kyi Myint, the USDP has denied receiving some portion of the funds. If they did receive them, what would happen to the party according to the law?

KM: According to the election laws, it is punishable by abolishment. In a satirical cartoon strip, a man said: “I have not taken anything. But take this for the time being, and I’ll return the rest later.” This is quite funny to the people. The government has to be careful in engaging with the USDP in this instance because politics is related to national reconciliation. But I am absolutely sure that if the USDP were in power and the NLD misappropriated funds, the USDP would not condone it.

KZM: The USDP would not show political tolerance for it.

KM: Right. So, the NLD government needs to take this into consideration.

KZM: Ko Thiha Aung, the new government has to show political tolerance as Daw Aung San Suu Kyi has tried to form an inclusive government, with members of the previous government included in her government. That yardstick has created problems. There are many countries—like South Africa—that undergo transition. To what extent is the NLD government willing to exercise political tolerance? This is the question to be asked of the government because this case is not a political issue but a crime of corruption.

TT: Crimes of corruption are unforgivable. If the NLD government fails to handle this to the satisfaction of the people, it will also be dragged into the problem. This will impact the NLD’s image and reduce public trust in them. The NLD needs to handle this skillfully. It cannot just ignore it and take no legal action. I do not think the transition will reverse [because of the government taking legal action against U Phone Maw Shwe] but it might possibly create a political crisis. The government is concerned that taking legal action will result in a reversal. But if it does not act, public trust may decline. So, the government needs to handle this astutely and effectively.

KZM: What is your advice for the NLD government?

KM: The embezzlement scandal unfolded first in Irrawaddy Division, and later in Magwe. But, the investigation was first launched in Magwe. There may be similar cases in other divisions and states. The government needs to audit the accounts with the intention of getting back public funds as opposed to taking revenge. My suggestion, from my experience as a civil servant, is to ask the auditor-general to audit the accounts and send the findings to the Bureau of Special Investigations [BSI]. The BSI should further investigate and the government should take action in line with law.

KZM: That is a good idea to avoid harming national reconciliation. Thank you for your contributions!