Analysis: Military Immunity Forgotten Amid Corruption Crackdown

By Nyein Nyein 2 October 2018

CHIANG MAI, Thailand—Drafted by the former military regime, Myanmar’s 2008 Constitution has been criticized as posing an obstacle to the country’s democratic transition. It guarantees the military 25 percent of seats in Parliament and grants the military leadership control of three security-related ministries. What is less well known is that the charter also hinders the fight against one of Myanmar’s most challenging issues: corruption.

While the country’s Anti-Corruption Law states that “anyone found guilty of corruption” is subject to punishment, the Anti-Corruption Commission (ACC) would be toothless in the event of a complaint against the military, as the charter gives it immunity from prosecution by the ACC, which was formed in 2014.

According to anti-graft czar U Aung Kyi, corruption cases related to the military are beyond the mandate of the commission, because the Constitution grants the military the right to tackle corruption within its ranks using internal mechanisms.

The military, as an institution, not only takes part in politics, but also runs key businesses under its own companies, including the Myanmar Economics Cooperation (MEC) and the Union of Myanmar Economics Holding Limited (UMEHL). The public wants to know what can be done in cases where corruption complaints are filed against the military, and whether justice will prevail.

“When it comes to the military, they are constitutionally allowed to manage [corruption investigations] by themselves. We can’t do it,” he said during a recent interview with Radio Free Asia.

U Aung Kyi was referring to Article 293 (b) of the Constitution, which refers to the formation of Courts-Martial, and Article 319, under which “the Courts-Marital shall be constituted in accord with the Constitution and the other laws, and shall adjudicate Defense Services personnel.”

Article 319 is one of the constitutional clauses whose amendment requires “prior approval of more than 75 percent of all the representatives of the Union parliament” and approval in a nationwide referendum by half of all eligible voters.

Myanmar has recently seen an increase in the number of investigations of graft charges, especially against civil servants, by the Anti-Corruption Commission.

Since its new chairman U Aung Kyi was appointed in November 2017, it has acted on more complaints. The most prominent so far has been a corruption charge against the former Yangon Attorney General involving a murder case.

The ACC accepts any kind of complaint, and follows up by either referring the case to the respective ministry, accepting it for further investigation, or rejecting it due to a lack of substantiating documents, said U Kyaw Soe, the agency’s deputy director.

Most of the complaints involve land disputes, or judicial and administrative officers taking bribes to deliver services on time.

But he confirmed to The Irrawaddy that the ACC “has not yet received any complaints against defense services personnel.”

In May, two high-ranking military officers were transferred to the military’s auxiliary force for taking bribes from a jade mine operator without a license in Kachin State’s Hpakant Township. It was the only case made public so far in which the military has taken action against its servicemen for corruption.

The military immunity has raised questions among the public about the need for constitutional amendment and why military and Defense Ministry officials are beyond the control of existing laws and regulations, while the 21 other ministries and Union administrative bodies are not exempt.

The Constitution and existing laws “are unjust”, as the defense services personnel are excluded from the legal system’s jurisdiction in cases where crimes are committed, said U Thein Than Oo, a prominent advocate and a co-founder of the Myanmar Lawyers Network.

“From a legal perspective, we have zero options and no hope of amending the Constitution within the Union Parliament, as described in Article 436. Even if all the elected MPs, who represent 75 percent of the total seats, unanimously agreed [considered an impossibility given the many parties they represent], and we got one vote from a military appointee who was either courageous or insane, it would only have passed half of the process,” he explained—the other half being a referendum in which more than half of all eligible voters agreed with the change.

The National League for Democracy (NLD)-led government is approaching charter amendment cautiously, as it doesn’t want to upset Myanmar’s military (or Tatmadaw). It has continually said, however, that it stands by its policy to seek charter amendment; NLD government minister U Kyaw Tint Swe reiterated last month that negotiations on charter amendment are ongoing.

“The key player in amending the Constitution is the Tatmadaw. We all know that it needs at least one military appointee in the Parliament to approve the amendment of articles in the Constitution. That one military personnel is not a mere officer. It must be the commander-in-chief or one of his fellow top leaders,” said U Myo Nyunt, a spokesman for the NLD.

The NLD spokesman said that only when the Tatmadaw’s top generals are willing to change the Constitution would there be an opportunity “to move forward Myanmar’s development” and “end the current civil war.”

“Thus we need their voluntary changes,” U Myo Nyunt said.

The NLD sees the 21st Century Panglong Union peace conferences as a second option, involving peace negotiations conducted among the government, Tatmadaw, the Ethnic Armed Organizations and the public. Dialogues are ongoing with the aim of reaching a Union accord, in order to ensure a democratic federal constitution.

“If we use this approach for changing [the Constitution], it could be better, quicker and more effective,” added U Myo Nyunt.

Although it is hard to predict whether the military chief and his fellow generals have the political will to do so, U Myo Nyunt believes that the approach needs to be maintained.

The NLD pushed for charter change with a public signature campaign in 2014, in which over 6 million signatures were gathered calling for amendments to the Constitution, including of Article 59 (f), which prohibits State Counselor Daw Aung San Suu Kyi from becoming president.

But since it took power after the 2015 general election, it has switched its approach and tried to avoid publicly criticizing the Tatmadaw.

U Myo Nyunt said, they “don’t want the Tatmadaw to feel that it is being pushed into a corner” while the NLD already has the public’s support with 6 million signatures and its majority in Parliament.