Dateline Irrawaddy: ‘The Major Problem with Burma Is That There Is No Rule of Law’
By The Irrawaddy 19 December 2015
Thalun Zaung Htet: Welcome to Dateline Irrawaddy. This week we’ll discuss if the new government led by the National League for Democracy (NLD) will be able to tackle Burma’s executive, judicial and legislative challenges, as well as end armed conflicts with the country’s ethnic groups. Lawyer U Robert San Aung and the Myanmar Journalist Union’s U Zaw Thet Htwe are joining me for the discussion. I’m Thalun Zaung Htet, editor of The Irrawaddy’s Burmese edition.
As soon as the NLD secured a landslide victory in the November election, measures for transferring power were underway. President U Thein Sein has said he would transfer power, and current military chief Snr-Gen Min Aung Hlaing said he would cooperate. Former Snr-Gen Than Shwe has also said that it must be accepted that Daw Aung San Suu Kyi will be the new leader of the country. So now it seems that this power transfer has been assured and that an NLD government will assume office in 2016. What will be the first challenges for the new government? What do you think, Ko Zaw Thet Htwe?
Zaw Thet Htwe: I see constitutional reform as the first challenge for an NLD government. There are two provisions in the 2008 Constitution that people want to change most: Article 59(f), which bars Daw Aung San Suu Kyi from the presidency, Article 436 and the constitutional guarantee that reserves 25 percent of parliamentary seats for the military. These provisions are major hurdles to establishing a democratic country, and they will indeed be the steepest obstacles for an NLD government to surmount. Again, the peace process initiated by U Thein Sein president is not yet finished, and the NLD has to continue it.
A second challenge will be if the NLD is able to convince those ethnic armed groups that haven’t yet agreed to a nationwide ceasefire to come to an agreement to end fighting.
And third, the structure of the government is, in the eyes of experts, unnecessarily large and ineffective. The NLD has pointed this out over the past four years as well. So the challenge will be to form a lean, efficient government, one that is thrifty with the budget and delivers necessary public service to the people. These will be the major challenges for an NLD government.
TZH: Seeing as how there are thousands of cases of land grabs, to what extent do you think an NLD government will be able to enforce the rule of law?
Robert San Aung: The NLD has already pointed out a few things to promote establishing the rule of law. For instance, the Peaceful Assembly and Procession Law of 2011, which violates human rights, should be amended. That law robs the citizens of rights enshrined in Article 354, as well as the rights described in Article 19 of the Universal Declaration of Human Rights. A law that does not meet human rights norms must be changed.
The Peaceful Assembly and Procession Law is applied wrongfully. It is not enforced to prevent people from inciting and creating hatred, extremism and violence. Rather, the law is used against workers, farmers, students and citizens who honestly demand democracy and human rights. They are the ones who are often arrested, beaten by police and put behind bars under this law. So it should be annulled or targeted toward those who actually incite religious and racial violence.
Moreover, existing farmland law does not protect the rights of farmers. It protects the interests of a handful of people who unlawfully grab farmers’ land. This law should be amended, too. There’s also the unlawful associations law and so on. Additionally, regarding the police’s crackdown on student protestors, respective courts dismissed the charges [against the police], giving the excuse that they did not have the president’s permission [to prosecute police]. The Human Rights Commission has submitted evidence to the contrary, but the courts did not take actions against the police, and they charged the detainees as they pleased. Such biased provisions need to be changed.
TZH: Yes, those laws should be amended. But the question is if the NLD will be able to establish the rule of law. Daw Aung San Suu Kyi has met U Than Shwe to talk about how the transfer of power will play out, and she seems to have made a lot of compromises for the military. We don’t know if she has promised not to annul such laws as a part of these concessions, for example with U Than Shwe. Do you believe the NLD will fully be able to enforce the rule of law?
RSA: Yes, I believe so, at least in part because there are many scholars in the NLD who know how Burma’s judicial system works. It is the courts that enforce the rule of law in practice. We therefore need to improve the quality of the courts, as well as make sure the salaries of the judges are commensurate with commodity prices after controlling for inflation. If not, no matter what law is enacted, the truth [justice] will always be trumped by partiality in the courtroom. There are many scholars in the NLD who can handle this. I believe the judicial system will improve by some 75 percent during the NLD’s five-year term. There will still be obstacles, of course. Those who have lost their grip on power will feel frustrated and may find a way to respond, for example by drumming up religious or racial tensions. But the people can prevent this sort of unscrupulous thing.
TZH: Another challenge concerns administrative organization. Permanent secretaries, who wield the most responsibility for government ministries after relevant ministers and deputy ministers, were appointed by U Thein Sein’s government, and most of them are military retirees or transferred from the military. How will this structure designed by the outgoing government mesh with the incoming NLD government and its attempts to implement policy?
ZTH: There will be problems, I think. Over the past 25, 30 years, many military retirees have taken up various administrative positions. They have even taken up positions as the headmasters of basic education schools. They have also assumed administrative positions at hospitals and positions as chairmen of township election sub-commissions. Officers trained in the military have become the heads of departments in the government. Yet they all share a major weak point: They don’t understand how to deliver public service. They tend to take a top-down approach. So how to remedy this will be the major challenge for the NLD.
Moreover, the skill capacity of Burma’s civil servants has declined a lot. They don’t seem to be ready for the changes likely to be introduced by an NLD government. Only by changing their mindset and enhancing this capacity can people accept and be satisfied with the quality of public service. At present, people do not have trust in Burma’s government agencies, including the police and hospitals. The Yangon General Hospital is undergoing reform now, a look at other hospital wards, such as those at North Okkalapa Hospital, reveals a problem of being overcrowded and inconvenient for patients. So in Yangon alone, one aspect is very good and one aspect is very bad. How will the NLD government carry out reforms to balance these? Again, there are division and state parliaments and governments and chief ministers in U Thein Sein’s government. But because of strong centralization, they have no authority, none at all. They are just meant to keep an eye on or take care of the region they control. They are not allowed to undertake regional development as they might want to. How much will the NLD decentralize these structures? How much power will power devolve? How much will division and state governments be able to achieve within given their constraints? These will be the challenges. If don’t address these problems, if we instead just build a castle in the air, people’s support and trust in the government will decline over the time.
TZH: There are also problems with land confiscation to complete projects, for example the China-backed Letpadaung project and various projects backed by Japan. How much do you think an NLD government will be able to resolve these land grab issues?
RSA: These will be solved when the rule of law is established. The major problem with Burma is that there is no rule of law. If there is rule of law, land is taken with the consent of its owner and appropriate compensation is given in exchange. But this is not what is happening now. This problem will only be settled if the NLD can enforce the rule of law. Police and special police are also responsible for the rule of law. For instance, today, in a case I’m working on, a dealer bribed the anti-drug police with 200 million kyats and escaped, but the man whom I am representing and who has nothing to do with the case, got a prison sentence. Things such as free medical service and free travel need to be provided to the police so that they aren’t tempted to take bribes. We also need to expand the police force, without recruiting unnecessarily. Don’t use 100 policemen to arrest a politician, for instance. We need to nurture a police culture that protects the people. If not, the rule of law will remain nothing more than rhetoric, even after the new government’s term expires. The new government needs to take concrete actions.
TZH: Thank you for your contributions.