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In the fever pitch of the 2015 election campaign period, the National League for Democracy (NLD) promised swift and efficient reform of the country’s archaic and unwieldy legislative framework. Senior NLD figures, led by party head Aung San Suu Kyi, pointed to a slew of notorious laws that had for decades been used to muzzle dissent and gag the press.
But in the nearly 17 months since the NLD took the helm in Naypyidaw, experts say the government has been guilty of over-promising and under-delivering — a symptom of inexperienced lawmakers and a top-down management style enforced by the party’s leadership.
In the NLD’s election manifesto, released in the lead-up to its historic victory at the polls in late 2015, Aung San Suu Kyi’s party promised to “amend and enact legislation as required for the benefit of the people,” and to “revoke legislation that harms the freedom and security that people should have by right.”
But experts say the government, to date, has fallen short of its lofty ambitions. Despite appointing former parliamentary speaker Shwe Mann to a committee tasked with reviewing legislation for amendment, the overburdened panel has proven to be inefficient and opaque in its activities. Experts in some quarters say Parliament’s failure to amend key laws, such as the oft-used and internationally condemned defamation clause of the Telecommunications Act, is indicative of an ineffective legislative process.
But Renaud Egreteau, a researcher focused on the Burmese parliamentary process, chalks it up to vested interests. He told DVB via email that the government is juggling a number of constraints, including a military “strongly in favor of maintaining such legislation as it is.”
“I assume that since the NLD senior leadership has been focusing on structural economic reforms lately, revising or repealing old repressive laws does not top its current legislative agenda. The fact that a parliamentary debate has nonetheless started on the now infamous [66(d)] defamation legislation is good news; yet it seems to reflect grassroots pressures internal to the NLD rather than clear-cut policy objectives emanating from its top brass,” he said on 16 August, two days before President Htin Kyaw authorised some amendments to the Telecommunications Act.
Those amendments dealt with the punitive elements of the law, a move that press freedom activists, however, deemed unsatisfactory.
The changes removed the opportunity for individuals to launch third-party complaints, and reduced the maximum prison sentence for those convicted from three years to two. The charge also became bailable, going some way toward quelling concerns about the judicial consequences of 66(d) cases.
The 2016 appointment of former Union Solidarity and Development Party (USDP) chairman Shwe Mann to the commission was applauded by some as a promising development, as the power player during the Thein Sein era had been considered to be among the more progressively minded members of the military-backed party.
His positive relationship with Aung San Suu Kyi, which arguably played a role in his dramatic ousting from the USDP chairmanship in August 2015, was expected to hasten an update of the country’s laws.
To date, in the nearly 17 months of this government’s tenure, 39 laws have made it to Parliament for approval or amendment. Twenty-three of those laws are now complete. Open Myanmar Initiative (OMI), a watchdog that tracks parliamentary proceedings, said progress so far has been inadequate. Founder and research director Htin Kyaw Aye told DVB that the laws passed so far haven’t had a meaningful impact for the broader population.
“So the pace of the legislation is not just in terms of pace, but also in terms of content. … We don’t see very much progress, so there’s only a few laws that have impact on the normal lives of the people,” he said.
Big promises, small changes
The prospect of a roster of new lawmakers — scores of them former political prisoners, activists and educators — was enough to energise a large portion of the electorate in 2015. With the NLD pledge to overhaul the legal system and implement sorely needed reforms, many hoped Aung San Suu Kyi’s hand-picked team would be up to the task.
But aside from a few changes, the country’s most draconian laws largely remain in place. The Telecommunications Law’s online defamation clause has been employed more in the last 16-plus months than during the entirety of the Thein Sein administration.
In the case of 66(d), the former political prisoner and director of the Tampadipa Institute, Khin Zaw Win, echoes Egreteau’s contention that the government is satisfied with keeping current laws in place.
The NLD “is comfortable and content in keeping the old system of handling the opposition more or less intact. These issues go to the heart of where democracy and rights stand in Myanmar today — under a civilian, supposedly democratic government. And it’s not a pretty picture,” he told DVB via email.
Despite being tasked with identifying suggested reforms of outdated laws, Shwe Mann’s Assessment of Legal Affairs and Special Issues Commission operates within a separate sphere from elected MPs and standard parliamentary procedures, with little oversight and largely opaque decision-making.
When contacted for comment, commission member Ko Ko Naing told DVB he “cannot say” anything about the panel’s internal machinations, declining to respond to concerns that the body is non-consultative.
NLD campaigners had touted pro-democracy credentials in their ultimately successful election bid. But throughout the campaign period, it was clear that Aung San Suu Kyi had, and would remain, the final word on all decisions if her party was brought to power. The top-down approach has had a sclerotic effect on legislative advancement.
Observers in some quarters had hoped that the influx of former inmates to Parliament would result in a long-sought formal definition of what constitutes a political prisoner. Throughout 2017, the Assistance Association for Political Prisoners has urged lawmakers to propose a definition.
Questioned in July, government spokesperson Zaw Htay told DVB the matter is “difficult to define” and pointed to the lack of an internationally accepted definition.
His remarks came just before the high-profile detainment of two DVB journalists and one Irrawaddy reporter in June attracted criticism of section 17/1 of the 1908 Unlawful Association Act. Three civilians, in addition to the journalists, were arrested after leaving a drug-burning event in territory held by the Ta’ang National Liberation Army, an ethnic armed group that has not signed on to the government’s peace process.
Following the same logic, both the president and the state counsellor, Aung Suu Kyi, are also liable for arrest, given that both met with TNLA representatives at peace talks in Naypyidaw.
Zaw Htay told DVB in July that the colonial-era law is cause for concern, but labelled the application of rule of law “very complicated” when pressed on the threat the precedent could pose to national leaders.
“I can say now, the state counsellor is very concerned about 17/1 and the activities of other political parties and civil society organisations. … We need to clarify, what is the action that is violating the law and what action does not violate the law.”
Section 17/1 remains unamended at the time of publication.
Policy-making bottleneck in Naypyidaw
Parliament is not short of committees to deal with the work of wading through and mulling legislation, but OMI says the Pyithu Hluttaw Bill Committee is doing the lion’s share of work on behalf of the Union legislature’s other 29 committees — picking apart the laws flagged by parliamentarians and the Shwe Mann commission.
The former speaker brought a wealth of experience to the role, flagging 172 laws for review in an initial assessment following his appointment to the post, and an additional 28 in January 2017.
Twenty-three have been approved at the time of publication. Among the legislation submitted for review by the fresh NLD government, amendment of the 1949 Suppression of Prostitution Act appears to have died on the Hluttaw floor.
An examination of the laws amended or adopted reveals a broad swathe of focus. Members of Parliament sought early wins in their five-year term by getting straight to work on changes to unpopular laws. First in line were two Orwellian laws designed to quash dissent — the Ward and Village Tract Administration Law and the State Emergency Act.
But that initial steam appears to have dissipated. Htin Kyaw Aye of OMI says the majority of parliamentary committees sit idle, and that this government favours decision-making behind closed doors rather than in plenary sessions, in contrast to the previous administration.
“I think in the previous government — this is my personal opinion — they [didn’t] have the popular support. And the government and also the Parliament, they didn’t have the legitimacy from the people, the people didn’t recognise the 2010 election as a free and fair one,” he said.
“The people [didn’t] see very highly of them. … But this government, it enjoys a lot of popular support. So they are in a very comfortable position, they don’t have to show their performance.”