Posted in Legislative Research on May 04, 2020

This bill is a redraft of an existing law The Underground Water Act (Burma Act No. IV), recognizing after 90 years the importance of groundwater management and the need for an updated law. Here we examine weaknesses of the bill and other considerations ahead of the bill debate, as well as key issues that should be monitored once the law is approved.

Difference from the existing law

The existing law is applicable only to wells with a certain depth, to be prescribed in a notification from the Governor (the name given to the head administrator of the occupying British colonial government), and this depth can be varied depending on the location. Applications for a license to sink a tube for the purpose of obtaining groundwater must be made to a ‘water officer’, appointed by the Governor.

However, the coverage of the current bill is nationwide, and its rules will apply regardless of the depth of the well. It also sets out how to apply for a license. (See here)

Bill’s weak points

Designated department by the Union Government

The bill includes the term “Department”, defined as a ‘body assigned by the Central Committee, with the Union Government’s consent’. The Department, under the supervision of the Central Committee, will conduct data collection, recording and research relating to the groundwater.

As we know, it is a peculiar habit of the Myanmar Hluttaw to pass laws that establish new committees. In other parliaments around the world, the tendency is to instead assign duties and responsibilities to the government without specifying the ministry, department or committee that will be responsible. The government is bound by its legal obligations under the law but can organize itself to meet those obligations however it chooses. For example, in the UK, new laws often refer to the duties of an ‘appropriate authority’, often defined at a Cabinet level Minister (see below).

Although the Myanmar tendency to establish, in law, new committees, or to determine exactly which department may attribute to the concern of responsibility and accountability, it turns out to weaken the ability of the government to re-organise itself.

This bill is a useful reminder of this issue, because it establishes the new committee but does not determine which department will be responsible. Is this because Government Ministers have not yet agreed who will be responsible? The Ministry of Natural Resources and Environmental Conservations (MoNREC) would seem a logical place for duties relating to groundwater, however that Ministry currently has no appropriate department. The Ministry of Agriculture, Livestock and Irrigation (MoALI) on the other hand, does have a ‘Department of Irrigation and Water Use Management’. But would this department’s interest be too aligned to rural affairs to manage urban water use effectively?

Regardless of where the responsibility for groundwater management ultimately lies, the drafters of this bill could save themselves the problem of trying to determine this in the law, by simply conferring the duty upon the ‘the appropriate Cabinet-level Minister’. The Government is then free to decide which department will be responsible for implementing the law, and which Minister will be accountable to the parliament.

The never-ending creation of new committees in every law is making the business of government more complicated for the average citizen to understand, and therefore less transparent and accountable. But it is also tying the hands of the current and future governments to organise their executive decision-making responsibilities however they see fit.

Central Committee with no experts

Alarmingly, the Central Committee proposed membership does not include any experts. Experts relevant to groundwater management might include scientists specialising in water quality, geologists who understand subterranean aquifers in Myanmar, demographers who can offer projections of population growth and water consumption, or perhaps most importantly, environmental scientists.

The management of groundwater is not purely a political matter. There is a risk that short-term political priorities may win out over longer-term environment concerns, perhaps with catastrophic effect. For example, one of this government’s pet political projects is the creation of a new city to the west of Yangon, across the Yangon River. Whilst delivering this extremely expensive project may be a political priority, rising sea levels and flooding pose a significant risk to the future of freshwater supplies in this area. Going ahead with such a project instead of investing in the existing city’s sustainability could have catastrophic result. Should experts be excluded from discussions of such matters?

Although one provision of the bill allows committee membership to be changed ‘if necessary’, the inclusion of experts should be embedded. It is imperative the committee has access to useful help and technical advice from experienced persons outside government.

The power to change and add to duties of the Central Committee

Article 5 says that the Union Government can change or add to duties of the Central Committee. If the Hluttaw feels it is necessary to create a new committee to implement this law (which, we argue above, is debatable) then that committee’s actions must be clearly delimited within the legal framework to prevent the abuse of power. In looking at the current bill, it has determined the duties of this Central Committee. If it is these duties are not deemed comprehensive enough, Hluttaw debate can be used to modify them before approval. However, the above provision is a way of giving the executive the power to arbitrarily transgress the legal framework, and ‘no one is above the law’.

Township working group’s role?

In addition to the fetish for creating committees, another common obsession is never-ending processes for licenses and permits, and this bill is no exception. A business license is required for conducting drilling business. For the extension of a business license, the bill says that applications should be made to Region/State working groups 60 days before their expiry. However, for new applications, where the application is made depends on the type of use: domestic use applications go to the Township, and industrial use applications to the Region/State. Therefore, new and renewal applications appear to be contrary with each other.

The bill also says that drilling permits should be applied to relevant working groups, and when drilling is not complete during the prescribed period, an extension must be applied for to the same working group. However, the bill also says that the Region/State working group or its authorised team will conduct field examinations and extensions. Again, the different roles of township and state/region working groups are not clear, nor how they will coordinate.

Ambitious article

In the prohibition chapter, Article 24 says that “no one should behave in a way that deteriorates the groundwater”. That prohibition is the only one with an imprisonment penalty. Although the provision aims to maintain groundwater level, the word “no one” is quite vague and broad, as is the term “deteriorates”. Since the risks of unsustainable extraction of groundwater have been ignored for many years, the public is likely to have relatively little knowledge about groundwater levels in their area. In this context, this article is overbroad, and creates a vague and arbitrary mechanism for punishing people. Instead, the law should be clear about the obligation of the authorities to monitor groundwater levels and prevent unsustainable depletion of groundwater supplies, and how they will be held to account if they are not able to uphold this obligation.

This highlights another tendency in Myanmar laws to place a much greater emphasis on the duties, obligations and penalties applicable to the general public, whilst not being as clear about the duties and obligations of government authorities.

Time limit for the groundwater extraction?

Article 25 says that a groundwater use permit holder has to use groundwater within the prescribed time, and can only extract a certain amount. Since the Central Committee will have a device installed to measure the amount of extracted water, the latter limit is not problematic. Nonetheless, the time limit is not clear enough. If it is clear there is limit to the quantity that can be used, what is the reasonable explanation for a time limit? How will violations be monitored?

Considerations for bill debate

The bill includes the maintenance of groundwater’s sustainable use and quality as its objectives. But when looking at the whole bill, how to achieve these aims is not clear, with the exception of a provision prohibiting behaviours that deteriorate groundwater.

Legislation should not be used to make threats to change certain social behaviours. Rules and prohibitions are not the sole means to achieve the desired outcome. Instead, the bill should include mechanisms for cooperation across government to prevent deterioration of groundwater. For example, in what way or through what policy will the authorised bodies relevant to this bill cooperate or coordinate with main government agencies such as those responsible for agriculture, minerals, energy and municipal authorities? The fact that the authorised body is under the tight control of the Union Government will doubtless fail to achieve the abovementioned objectives of coordination at the local level.

Monitoring the law after approval

The process of implementing a law will require issuance of by-laws and regulations, and also allocation of appropriate budgets. Based on the current bill, the following should be considered:

(1) Permits for drilling and groundwater use must be applied for to the relevant working groups. How will by-laws determine which working groups will do what, and how they should work?

(2) As there are penalties of imprisonment/ fine/ both for deteriorating groundwater, how will the law be interpreted and this behaviour identified?

(3) Since all levels of working group can ask for data from the MoNREC, we should monitor whether data requests are made and whether the Ministry responds.

(4) The bill allows for budget requests from the Ministry to strengthen data through research, laboratory and technical matters. So the budget allocation to this activity, and the implementation of that budget, should be evaluated.