A Look at Anti-Graft Body’s First-Year Performance
By San Yamin Aung 18 May 2019
YANGON—With prosecutions against a number of powerful and influential but corrupt officials over the past year and a half—an unheard-of feat before—the government’s anti-graft body has gained high public expectations as an institution that is actually combating the country’s deep-rooted corruption.
The flood of public complaints filed to the Anti-Corruption Commission (ACC) is a testament to these expectations.
Last year, as many as 10,543 complaints were filed with the ACC—five times higher than 2017 and more than in any previous year.
However, during recent parliamentary debates over the commission’s annual report for 2018, its effectiveness in handling public complaints and its investigations into misappropriations and losses of public funds—the definition of corruption under the fourth amendment to Myanmar’s Anti-Corruption Law—were questioned by lawmakers.
According to the report, the ACC has only successfully investigated and prosecuted 46 of the 10,543 complaints lodged in 2018, handing over 1,795 cases to concerned Union ministries, Union-level agencies, and regional or state governments for action in accordance with the code of conduct for civil servants.
The commission was unable to address 8,092 complaints, including those which didn’t comply with the Anti-Corruption Law, those which were deemed not to include strong enough evidence to start an investigation, cases still ongoing in the courts and those with incomplete information regarding the complainant. The ACC said in the report that it replied to those complainants with explanations of why the commission was unable to proceed.
The remaining 610 complaints are still being scrutinized.
While lawmakers pointed out that the commission’s rate of investigation and prosecution of corruption cases was low compared to how rampant corruption is, the more stressing issue was the level at which the commission handed over cases to other ministries or regional and state governments.
“The number of the cases that the commission transferred to ministries or regional and state governments was high.” Indeed, they know well how and where bribery takes place, and the corruption loopholes in their departments. If those were accountable in the first place, we wouldn’t even need to form a commission,” National League for Democracy (NLD) lawmaker U Ye Htut, from Sagaing Region, said.
While presenting the annual report at the Union Parliament on April 29, ACC Chairman U Aung Kyi said that among the 1,795 complaints they handed over to the ministries and regional and state governments in 2018, action was taken on only 536.
According to the report, the Yangon regional government had the most cases transferred to it among regional and state governments—197, of which only 25 were resolved.
Among the ministries, the Ministry of Home Affairs had the most complaints transferred to it—249, of which it took action on 149.
And, while more than a thousand cases were unresolved, NLD lawmaker U Myint Wai, from Rakhine State, criticized lax actions taken in many cases that were resolved, which resulted only in warnings, transfers to other departments and suspended promotions, while very few led to firings.
“I doubt it is because they are trying to conceal involvement in the cases,” U Myint Wai said.
The soft punishments hinder the commission’s effort to tackle the country’s deep-rooted corruption, lawmakers said. They called on the commission to follow up with ministries and regional and state governments’ actions when cases are transferred.
In his presentation, U Aung Kyi said that, despite the commission’s strenuous efforts, the overall level of corruption in the country has not improved.
To assess the level of corruption and gauge the commission’s success, the ACC hired an independent, third-party group to conduct a nationwide survey. The survey, which did not include Chin State, was conducted from October through December.
“According to the survey, corruption had not declined significantly by the end of 2018, and remained at the usual [level],” U Aung Kyi told Parliament.
The survey respondents cited ineffective action against corruption and poor rule of law in certain places as the major factors contributing to corruption, along with other two additional factors: a pervasive, self-interested mindset and a general resistance to change.
The chairman vowed the commission will accelerate its efforts to fight corruption this year.
He said the commission is also drafting the Whistle-blower Protection Bill to encourage those who voluntarily disclose information about fraud or power abuse in government departments.
“We will also carry out more investigations and prosecutions effectively,” the chairman said.
NLD lawmaker Daw Mar Mar Khine, from Mon State, said while the bribery at police, court, general administration, public health, immigration, and land administration departments—those that must engage with the public directly—are obviously the most complained about, irregularities at departments overseeing public funds are often overlooked, seeing less complaints.
“The loss of public funds because of mismanagement or breaking the existing rules and regulations are frequently discussed by the lawmakers at Parliament. There were many such cases that happened and also are still happening,” she said.
According to the Anti-Corruption Law, Article 3 (a) 2, losses to public funds and state property by breaches in existing laws, rules and regulation can be prosecuted under corruption charges.
NLD lawmaker Dr. Khun Win Thaung, from Kachin State, urged the commission to find ways to closely watch over state losses from misuse and abuse of public funds, and to take action against them.
“The commission needs to launch investigations itself without waiting for complaints to be filed for those cases as soon as the irregularities [are] found in audit,” he said.
The fourth amendment to the Anti-Corruption Law, enacted in June 2018, gives the commission a broad mandate to investigate at its own initiative any civil servant who is seen to be unusually wealthy. Previously, it could only probe allegations of corruption in response to formal complaints filed with strong supporting evidence.
In late 2018, the commission received a request to investigate state losses of billions of kyats worth of public funds, which were revealed in the findings of the Yangon Region auditor general’s report on the regional government’s budget for the 2016-17 fiscal year. The complaint was filed by former Yangon regional lawmaker Daw Nyo Nyo Thin—who is also a founder of Yangon Watch, an independent governance-monitoring group.
But the ACC responded that there was no need for it to investigate the losses then because the government and auditor general were still working through procedures that must follow the release of any audit report.
As of now, there is still no official explanation of further procedures taken by the Yangon region government on the findings.
“[We recognize] that the commission was able to take a number of corruption prosecutions [over the past year]. But to win public trust, it needs to take action against any corrupt activity and related cases without discrimination or bias,” military appointee Lt-Col Hla Naing told the parliament.
NLD Lawmaker U Hla San said at the parliament that he has also been questioned by his constituents about the commission remaining toothless in the event of complaints filed against the military, which holds three key ministries: Home Affairs, Defense Affairs and Border Affairs, in addition to running key businesses under its own companies.
U Aung Kyi said in December of 2018 that the commission had not yet received any complaints against the military but, even if it had, such cases would be beyond its mandate.
The undemocratic, military-drafted 2008 Constitution gives the military immunity from prosecution by the commission. The Constitution grants the military the right to tackle corruption within its ranks using internal mechanisms.
“No one should be above the law. Everyone should be equal under the country’s law. If not there is no equality for citizens and corruption won’t be combatted successfully,” NLD lawmaker U Zaw Hein, from Tanintharyi Region, said.
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