Mandatory public consultation and better inter-ministry coordination are needed for the government to improve the quality of draft legislation.
By MELINDA THET TUN | FRONTIER
THE PYIDAUNGSU HLUTTAW re-convened last week with lawmakers returning to Nay Pyi Taw from across the country. The vast meeting rooms and halls of the national capital are again buzzing with activity. The parliamentary session is the sixth since the National League for Democracy government came to power in 2016.
It is likely to be a busy session, not least because the crisis in Rakhine State has focused much attention on the country and its nascent political transition.
The active role played by the Pyidaungsu Hluttaw – the national bicameral legislature – since it first convened in 2011 has been one of the more remarkable features of Myanmar’s transition towards genuine democracy. Despite expectations to the contrary, the parliament has been proactive in exercising its legislative mandate, approving a total of 251 laws to the end of 2016.
This lawmaking drive is as unprecedented as it is unexpected. Before 2011, Myanmar did not have a national legislative assembly for more than 20 years, after the military assumed power following the 1988 nationwide protests. The military regime (the State Law and Order Restoration Council, and its successor the State Peace and Development Council) issued decrees and declarations to fill the legislative void. Lawmaking power was previously vested in a one-party unicameral legislature under Socialist rule, and before that, an unelected Revolutionary Council established by the military after its coup in 1962. Myanmar last had a representative legislative assembly in the years after independence in 1948.
As a result, lawmaking does not have a long history in modern Myanmar politics. It has often been a rubber-stamping exercise to serve the will of unelected executive governments, without any accountability to the public. However, the current Pyidaungsu Hluttaw plays an instrumental role in the new constitutional system and its members – except the appointed military MPs – are elected by a popular vote.
The Pyidaungsu Hluttaw approves the national budget and all legislative proposals by the executive branch and has many committees to assist in the exercise of legislative power, such as the Legal Affairs and Special Cases Assessment Commission. Government ministers and officials are regularly called to appear before parliament to speak on matters it is considering, providing an unprecedented level of oversight in the executive branch.
New laws, old habits
Laws made by the Pyidaungsu Hluttaw since 2011 have resulted in many changes to the legal framework in Myanmar. The new laws cover a diverse range of policy areas, from environment and education to land and labour. Much remains on the legislative agenda, with significant bills already submitted and many more in the pipeline, ranging from intellectual property to upstream oil and gas operations. The laws being approved by the Pyidaungsu Hluttaw add another layer to a web of old or dormant laws from the British colonial era, which are intertwined with executive orders and decrees issued during many years of authoritarian rule.
Just as old laws are not necessarily bad laws, new laws are not necessarily good laws.
Some laws approved by the Pyidaungsu Hluttaw have received much criticism. A suite of four so-called “race and religion protection laws” – the Population Control Healthcare Law, Buddhist Women’s Special Marriage Law, Religious Conversion Law and Monogamy Law – were all approved in 2015. These four laws were proposed by a Buddhist nationalist organisation, drafted by the executive government and the Union Supreme Court, and approved in parliament amid heightened ethnic and religious tensions, despite strong objections from civil society groups for entrenching religious and gender discrimination. They were also passed despite guarantees of gender equality and non-discrimination based on religion in the 2008 Constitution.
More recently, section 66(d) of the Telecommunications Law, which was passed in 2013 as part of the liberalisation of the telecommunications sector, has been used to prosecute journalists and others for criticising senior government and military officials on social media. The use of this law to bring criminal defamation cases drew comparisons with previous regimes’ attempts to repress political dissidents and has been criticised for undermining press freedom. The complaints have continued since the change of government, with more than 80 cases filed since the NLD took office. Despite the law being amended by the Pyidaungsu Hluttaw a few months ago, criticism continues over its failure to protect freedom of expression.
These cases highlight that legislative reform has not always helped to address some of the complex social, economic and political issues facing the country and may, in some circumstances, create more problems.
The convening of a new sitting of the Pyidaungsu Hluttaw is an opportune time to examine weaknesses in lawmaking and also to consider ways in which legislative activity can strengthen the rule of law, including in protecting fundamental rights, checking the exercise of administrative power, and promoting transparency and accountability.
The NLD government and hluttaw must move away from the misconception that the legal system can be rebuilt, and the economy strengthened, simply by passing laws. The practice – inherited from the previous government – of preparing fairly basic and often poor-quality legislation in tight timeframes with limited consideration of legal and policy issues or public consultation needs to be reassessed.
It should not be forgotten that the flurry of lawmaking comes after decades of authoritarian rule with no entrenched legislative practices or public participation in drafting laws. The legislative process is new and subject to the capacity constraints evident in many areas of public administration.
Legislation submitted to parliament is usually prepared by government officials with no legal expertise or law-drafting skills. There is limited coordination between ministries in developing new laws and no uniform procedure for public consultations on draft legislation. Practical matters, such as funding and the resources required to implement new laws, are not properly considered when drafting legislation. The Union Attorney General’s Office does not draft laws, nor does it have the capacity to scrutinise draft legislation effectively due to a lack of manpower and legislative drafting expertise. The parliamentary bill committees lack the legal expertise and research support required to properly scrutinise draft laws.
Most laws passed by the Pyidaungsu Hluttaw contain broad policy statements, establish administrative bodies with ill-defined powers and broad discretion, and contain few detailed provisions. The laws usually require further detailed regulations to be put into practice and many new laws are only partially implemented (or not implemented at all) due to a lack of such detailed regulations. For example, the Competition Law 2015 (which took effect in February 2017) and the Condominium Law 2016 have been approved for many months and yet the details and guidance required to implement them are yet to be released. The result of these legislative efforts is an increasingly complex and uncertain regulatory environment, which in the long run damages the credibility of legislative reforms and undermines the rule of law in Myanmar.
Evidence of this is the fact that, despite prolific lawmaking in the past five years, Myanmar continues to rank poorly in law and governance indicators.
The World Justice Project’s Rule of Law index, which measures how the rule of law is experienced by the general public based on rule of law indicators, ranked Myanmar 98th out of 113 countries in 2016. The World Bank’s annual survey of Worldwide Governance Indicators, which assesses governance dimensions such as regulatory quality and rule of law, ranked Myanmar in the bottom 10th percentile of over 200 countries or territories in 2015.
In this respect, Myanmar is not unlike many other developing countries that are grappling with a lack of capacity and resources in many technical areas. However, the challenge for the Pyidaungsu Hluttaw and the NLD government is to forge a new approach to lawmaking which harnesses the strong popular mandate enjoyed by the NLD to effect transformative changes to the legal system.
A new approach
Rather than preparing basic laws that are rushed through parliament, the NLD government should focus on improving the legislative drafting process, building strong administrative institutions and reforming the exercise of administrative power based on rule of law.
A uniform procedure for preparing legislation needs to be adopted across the government to improve the quality of draft laws. This procedure should include mandatory public consultation and inter-ministry coordination mechanisms. There is also a need for an office or body within the executive branch (possibly within the President’s Office or the Union Attorney General’s Office) to oversee, manage and coordinate the preparation and drafting of all laws. When legislation is being drafted, matters such as budgetary and institutional support must be clearly articulated and carefully considered to ensure the law can be implemented effectively after being enacted. In the medium to long term, the government will need to build legislative drafting skills and vetting capacity within the executive and legislature with a core team of properly trained lawyers who can ensure the quality of legislation.
Legislative efforts must also pay particular attention to the establishment under new laws of institutions tasked with administrative and regulatory roles. Often, new laws have created tribunals, committees, agencies and commissions, all of which need to be funded and resourced. The process of establishing these new institutions has often been an afterthought to the legislative process. Unlike laws, which can be drafted and approved in a short time, building such institutions takes time and resources. This is particularly challenging in an environment where the civil service is stretched to the limit. However, the efficacy of law reform rests on the strengths of these new institutions and the Pyidaungsu Hluttaw can ensure the executive branch has given due consideration to building and strengthening the capacity of such bodies and their functions under the bills submitted to parliament.
Making new laws without addressing the ability of the civil service to administer them is a futile exercise in reform. The ability of the civil service to administer laws is weak and administrative power is often exercised without reference to laws or regulations. The civil service has little institutional memory of exercising administrative power within the boundaries of the law and many administrative practices are inconsistent with existing (and new) laws. Given decades of entrenched practices, the urge to use heavy-handed administrative measures to exercise executive power remains strong.
The lack of legal expertise within ministries also contributes to their inability and unwillingness to use laws as a basis for administrative decisions. There must be a sustained focus on building legal capacity within government and building a civil service that is committed to the rule of law.
Myanmar faces multiple constraints in addressing these challenges, but the task remains to continue developing the legal framework so that it benefits the democratic transition. The government will need to find the political will to improve the laws and the processes by which they are made, as well as the institutions involved in administering those laws. A failure to do so at this stage of Myanmar’s transition would be a wasted opportunity. Myanmar needs to rebuild its legal institutions and strengthen the rule of law as part of its democratic transition.
This commentary was first published by New Mandala and is adapted from a paper prepared for the Australian National University Myanmar Update 2017.