The Ānanda

Democracy at a pause

Failure to reform institutions another hurdle to advance democracy

By Hla Myo Kyaw and Htin Kyaw Aye on June 8, 2018

A attempt by an lower house MP to reform the Myanmar National Human Rights Commission has recently failed in the National League for Democracy-controlled parliament. U Ba Shein of Kyaukphyu Constituency (Rakhine State) submitted an amendment to the legislation signed by then-president U Thein Sein on 28 March, 2014. The amendment introduced on 23 May would enable the commission to launch investigation into the cases for which any court has passed a verdict, which they are not allowed by the current law.

The Rakhine National Party MP argued that citizens were rejected their fundamental rights are complaints to the commission are not accepted as they somewhat engaged in court proceedings. As the parliament considers the acceptance of the bill, the National Human Rights Commission member offered their opinion that the proposed amendment went against the principle of the separation of power and principles set by United Nations for the national human rights institutions, and the commission, being independent organization, were not bound to make legally binding decisions. He ensured that the commission would only provide recommendations to different government agencies as per the current legislation.

The Supreme Court judge, in his statement to the parliament, said there were writs which the highest court could deliver as a tool of check and balance against other branches of the government and the parliament should not undermine the judicial independence by considering the amendment.

The bill was down by the votes of 328 Noes and 5 Abstentions while only managing to rally 38 Yes.

The State of the Commission

The commission could send recommendations for actions to different government agencies after considering complaints of human rights abuses. Public offices are legally required to report back to the commission within 30 days of their implementation of recommended actions. But in practice, only a few organizations report back to the commission and most of them were just ignored. The commission’s ability was then limited by the restrictions not to get involved in any judicial proceedings and even in cases the court passed the verdict.

Although there must be consideration for separation of power, the commission should be reformed to become the one that could ensure the human rights compliance in any branches of the government.

It is true as the commission argued that the commission is funded by the state and must be an independent human rights body. But the Paris Principles that set the guidelines for the national human rights body said that the national commissions “shall examine the legislation and administrative provisions in force, as well as bills and proposals, and shall make such recommendations as it deems appropriate in order to ensure that these provisions conform to the fundamental principles of human rights”. A toolkit for national human rights bodies produced by UNDP-OHCHR states that the human rights body should focus on “monitoring the independence and impartiality of the judiciary and its capacity to adjudicate cases fairly and competently.” It’s clear that the human rights body should be considered a partner in considering human rights abuse litigations and they should even be allowed to launch litigations themselves as an independent entity.

The Reluctance of the Parliament

As the bill has been distributed to MPs for some time because it is a private bill which requires acceptance vote, it could be assumed that MPs have enough time to consider the bill. The amendment would require even more tweaks to effectively reform the institution through the process of deliberations. Sadly it was an opportunity lost after the overwhelming rejection. There is a big question mark on NLD-controlled parliament whether they think the current institution is effective in addressing human rights violations.

If UN standards are to be referred, we should also remember that UN rates the Myanmar National Human Rights Commission in Category (B) which says it only partially follows the set principles.

This opportunity to change the current state of affairs was ended abruptly in just one afternoon of vote. There was no one deliberation from MPs who could well be informed about the commission’s condition through three annual reports submitted to the house. Although this attempt ended in vain, we still hope there would be more attempts to reform these institutions in this term of the parliament controlled by NLD which has set the human rights their priority when they rallied for votes.