Dateline Irrawaddy: “Corruption Is Still Rampant Despite The Anti-Corruption Law”
By The Irrawaddy 31 January 2017
Following the death of U Ko Ni, we republish this Dateline video program from 2016, in which The Irrawaddy’s English editor Kyaw Zwa Moe talks to U Ko Ni and ex-lawmaker U Ye Htun about aspects of the Constitution and laws related to stopping bribery and corruption.
Kyaw Zwa Moe: Welcome to Dateline Irrawaddy! This week, we’ll discuss the State Counselor Bill, which the National League for Democracy (NLD) submitted to Parliament last week, as well as Daw Aung San Suu Kyi’s guidelines for civil servants accepting gifts. Lawyer U Ko Ni and former Lower House lawmaker U Ye Htun, from Hsipaw Township, will join me for the discussion. I’m Irrawaddy English editor Kyaw Zwa Moe.
U Ko Ni, the military representatives have objected to the State Counselor Bill in Parliament. But I think this bill may have been debated and passed today. How important is this law for Daw Aung Suu Kyi, her NLD party and also for the people? Why is the military so opposed to it?
Ko Ni: By studying the objectives of this law, we can know its importance. We can also study the preamble, which explains why this law was enacted. The text of the law also states the four objectives of the law. Our country is failing and deteriorating in all aspects. We lag behind our neighbors in development. So, to bring rapid development to our country, which is declining and deteriorating in all aspects, good leadership is necessary; and this leadership must be provided by the person who people truly trust and rely on. As everyone knows, the majority of people, especially the ethnic groups, overwhelmingly supported the NLD in the November election. It is not strange that the Bamar people supported the NLD, but ethnicities such as Chin, Karen, Karenni, Mon, and Shan in their respective states also supported Daw Aung San Suu Kyi, out of a deep respect and a belief that she could really initiate change. So, what is the aspiration of the people? It is Daw Aung San Suu Kyi’s leadership. On the other hand, the 2008 Constitution, which was drafted high-handedly without the consensus of people, does not allow Daw Aung San Suu Kyi to assume a leadership role in politics, because Article 59(f) [of the 2008 Constitution] bars her from doing so.
KZM: This law was drafted because of constitutional restraints like Article 59(f), wasn’t it?
KN: Yes it was. Because Daw Aung San Suu Kyi’s leadership was restricted, we were trying to appoint her as the counselor, referring to provisions in the Constitution and in other laws—so that she could provide de facto leadership.
KZM: As far as I understand, Article 217 of the Constitution [stating that nothing shall prevent Parliament from “conferring functions and powers upon any authoritative body or person”] is related to this law. The NLD seems to have drafted this law based on this Article.
KN: Yes, it is. Besides Article 217, there are other provisions in the Constitution that can be referred to as well.
KZM: The State Counselor Bill clearly states that the Union Parliament assigns Daw Aung San Suu Kyi as State Counselor. What do the different ethnic groups think about this unusual law [written with one specific person in mind]?
Ye Htun: What the ethnic groups want most is a true federal union. This is one objective of the State Counselor Bill. This is the part that ethnic groups welcome. As U Ko Ni has said, this law has emerged mainly because of Article 59(f). Because this Article bars Daw Aung San Suu Kyi from the presidency, the NLD tried to find another way out, and found this law. This discovery will help them more than if Daw Aung San Suu Kyi became the president. Suppose Article 59(f) was amended, and Daw Aung San Suu Kyi became the president. Then, she would not be able to communicate with the NLD or NLD lawmakers because of constitutional restrictions [Article 64 states that if the president is a member of a political party, they cannot take part in party activities during their term].
But now, she can join the National Defense and Security Council (NDSC) as the foreign affairs minister, manage the cabinet as the president’s office minister, and under this law, she can also interact with members of organizations and agencies. She can meet the secretarial body of her party legitimately and can provide recommendations to prominent lawmakers, including parliamentary committee chairpersons. But, it is important to note that she is not supposed to give instructions to her party members and lawmakers, since the Constitution states that the three branches of power must be exercised separately. So, she would give advice. And everyone understands what advice means.
Kyaw Zwa Moe: Ok, let’s talk about another important topic. Yesterday, Daw Aung San Suu Kyi issued a set of guidelines regarding accepting gifts. Myanmar is one of the most corrupt countries in the world. [The country] finds these guidelines appealing. The question is how effectively those guidelines will be enforced. The guidelines are just about accepting gifts, and do not deal with bribes. So, U Ko Ni, how do you assess these guidelines?
KN: We already have laws regarding bribery—Chapter(9) of Burma’s Penal Code, regarding the offenses of civil servants, was enacted before 1948; and, the Anti-Corruption Act was enacted in the post-independence period. In this act, the punishment for taking bribes was increased to a ten-year jail sentence. The most recent one is the Anti-Corruption Law, enacted in 2013. This law is very good. It is up to date, and it seems that lawmakers studied related international laws before enacting this law, as it is fairly comprehensive. But there are difficulties in implementation. It is fairly difficult to enforce it. The problem is that corruption is still rampant in Myanmar despite the Anti-Corruption Law. There is corruption at each level of the [government] hierarchy. But punitive actions are rarely taken. There were only four or five corruption cases that were punished in the past three or four years. [Civil servants] take bribes one way or another. This problem was the worst when U Thein Sein’s government officially allowed taking gifts that were valued at less than $US250, and said that it would not be treated as taking a bribe. Cartoonists responded to this with satirical cartoons. Daw Aung San Suu Kyi noticed it and therefore adopted these guidelines. As a legalist, I would say that Daw Aung San Suu Kyi has differentiated between bribes and gifts. Her guidelines concern taking gifts. Everything that is taken within the framework of her instructions will be considered a gift, and anything out of the framework of her instructions will be considered a bribe. If [bribes are taken], it will be treated as corruption and punitive actions will be taken.
KZM: The 2013 Anti-Corruption Law could not be enforced properly. The government failed to implement the law. Why?
YH: As far as I have studied, in countries with clean, corruption-free governments, the top leader, president or prime minister, he himself must be clean and dedicated to forming a clean cabinet.
KZM: He himself must be clean?
YH: Yes. There is a Burmese saying that says, “the roof must not leak” [if a leader is bad, his subordinates will also be bad]. In a country where the roof is leaking, implementation will not happen, no matter what laws are enacted, or how good they are. I was encouraged by Daw Aung San Suu Kyi asking her lawmakers and ministerial nominees to avoid corruption before she had even formed the government. Because she spoke out publicly against corruption, hopefully her anti-graft efforts will be successful.
KZM: How effectively will [the guidelines] be implemented? Over the past 40-50 years, the society and the successive governments of Myanmar were used to giving and taking bribes. They did not even view the bribe for what it was. [High-ranking officials] received about US$400-800 to cut a ribbon [at the opening ceremonies of private companies]. There are still, more or less, some of the same ministers and authorities in the current government. How can this be tackled using the 2013 Anti-Corruption Law as a guideline?
YH: Personally, I think it will be best if the guidelines can be as clear as possible. Under the new guidelines in our country, you can accept a gift valued at less than $21, and give gifts that are worth more than that to the government.
KZM: Yes, the guidelines state those details. The guidelines set the maximum price of the gift at $21.
KN: And [civil servants] can only [accept a gift] a maximum of four times.
KZM: Yes, [civil servants] are not allowed to accept gifts of $21 from the same person or organization more than four times per year. So, the maximum they are allowed to take is $84 per year. It is quite detailed, but I think such details are justifiable.
YH: [Vested interests] will take advantage of this weak point in the law and give gifts worth $21 several times.
KZM: We have heard that some people give cars as wedding gifts at the wedding receptions of the children of high-ranking officials. It is very likely that they give these gifts in their own future interest. Most of the people I talked to yesterday like Daw Aung San Suu Kyi’s guidelines. But what is the mechanism to expose corruption? There will be people who continue to take bribes under the table. We have not yet seen the complaint mechanism. So, U Ko Ni, what do you think Daw Aung San Suu Kyi and her government will do regarding this?
KN: A mechanism is of course needed to enforce a law on the people. So, we have two points to discuss here. There will be a separate mechanism for guidelines issued by Daw Aung San Suu Kyi, through the Ministry of the President’s Office. The guidelines are not related to the Anti-Corruption Law, but to gifts that civil servants are allowed to take. She had to issue these guidelines because of Burmese customs. In our country, there are customs such as paying respects to elderly people on religious and culturally significant days like Thadingyut and Tazaungmone, giving wedding gifts, and giving gifts to visitors who come to your home. These are the part of our culture. So, Daw Aung San Suu Kyi has issued these guidelines in fear of [civil servants] taking advantage of this part of our culture, and taking bribes—in other words, taking bribes under the cover of culture and customs. Violating these guidelines is not a big offense, and violators will be punished according to the code of conduct for civil servants. The violators, ministers or staff will be disciplined depending on the extent of the violations; however, the scope of these guidelines is limited. In the case of the Anti-Corruption Law, the scope is wide because it intends to prevent the abuse of power by those in positions of power in the judiciary and legislative departments.
If you ask me how to implement the law, we need to categorize [corruption into different groups]. U Ye Htun has stressed that the leadership must be clean, and it is very likely that our current leadership will be. The leadership is usually only a few people, it is easy to check them and it is noticeable [if they do something wrong]. The middle level will be a larger number of people—by middle level I mean civil servants in power, for example, director-generals and directors. They may abuse their power and take bribes. And finally, there are low-level staff members. For some, their salaries simply do not suffice for them to make ends meet. So, some have to take tips or small amounts of money given [by customers] of their own volition. Those in authority can’t treat this equally as an abuse of power. The NLD government needs to adopt, in cooperation with experts, a mechanism to punish people accordingly. Good by-laws and procedures also need to be adopted.
KZM: U Ko Ni, U Ye Htun, thank you for your contribution.