Posted in Legislative Research on May 29, 2018
Anti-Corruption Commission and National Human Rights Commission were among the organizations with which president U Win Myint met just days after the swearing-in as the new president. Before taking office from the outgoing president U Htin Kyaw, U Win Myint held the office of the speaker of Pyithu Hluttaw (lower house) during the first two years of the NLD administration. It is assumed that these meetings are intended to accelerate anti-corruption measures and address persistent human rights issues which have engulfed the society for years.
When he entered the Parliament after winning a seat in the 2012 by-elections, U Win Myint proposed declarations of assets by the president and cabinet ministers to the public. It can be said that his proposal was an effort to combat corruptions through transparency.
This article explores duties and responsibilities of the anti-corruption commission formed under the anti-corruption commission law to eradicate bribery and corruption, to ensure clean government and good governance and to prevent damages to the state property, human society and citizens’ rights and benefits from bribery and corruption. Fourth amendment to the Anti-Corruption Law is currently under debate at the time of writing. We present this article in the belief that legal frameworks and enactments would be made even better by citizens getting involved in the law-making process.
Forming anti-corruption commission
The president and speakers of Pyithu Hluttaw (lower house) and Amyotha Hluttaw (upper house) nominate five members each who met prescribed requirements, which could be roughly interpreted that they meet the same requirements for a minister. The persons whom the president and the speakers could nominate shall be between the age of 45 and 70 years and regarded as honest and fair. The president shall select the commission chairman and the secretary out of the 15 nominees and submit the list of the names of 15 nominees to the Pyidaungsu Hluttaw (combined house) for approval. Only when MPs could submit evidences clearly indicating they do not meet the requirements, shall the Pyidaungsu Hluttaw reject their nominations.
The commission reports directly to the president. The commission shall submit its findings of investigation into corruption case and its annual report to the president and the house speakers.
The commission’s term is the same as that of the president until the nomination of the new commission by an incoming president with the term limit of two. The original law referred to the commission members as mere civil service personnel. The later amendment specified their role that the commission became a union-level organization formed by the president, designating the commission chairman to hold the same status as a union minister and the members as deputy ministers.
Commission’s independence and impartiality
In an effort to make the commission independent, there are some provisions in the law that address the conflict of interests. The nominee can’t be an employee or in contractual or business relationship with any private and public organizations and hold any interests in them. Membership in the commission is defined by some terms and conditions which include disclosure of assets and liabilities of himself/herself and family members of the same business to the president. Putting it straight, they are not allowed to get involved in any business activities. Political independence
According to the Anti-Corruption Commission Law, the commission reports to the president, and shall submit its findings of investigation into corruption and its annual report to the president and the house speakers. With the aim of ensuring the commission to be independent and impartial, the law prohibits the commission members receiving salaries and privileges and taking up any employment and calls for submission of the lists of their assets to the president. Even though the law designs the commission to be isolated from business interests, the question is to which extent the commission is free from political influence. The commission might be handpicked by a political party in the context one political party controls both houses. In that context (which is the case now), the independence of the commission is questionable.
The union government shall allocate the budget to cover the expenses of the commission. However it may be done practically, it just indicates that the commission relies on the government for financing. If the law allows the commission to request its own budget to the parliament as a separate agency, it will become better financially independent. Handling corruption cases
The commission can form the preliminary inspection team, working committees and task forces as necessary and carry out investigations into corruption cases. The commission can specify ranks of the public officials for declaration their assets to them once a year.
False information in disclosures is punishable with imprisonment and/or with fine. So, the commission is well backed up by the law in this regard.
In case the commission is investigating the high-level official, he/she will be suspended from the office since the day the commission decided to put forward a litigation against the official.
The commission can form an enquiry committee led by a member of the commission and composed of suitable citizens to investigate into a corruption case. The enquiry committee shall report to the commission chairman about its findings. The commission has to meet within 30 days on receipt the enquiry committee’s report to pass a decision. Based on the report, the commission can close the case if there is no firm evidence or can continue the persecution. The commission has to immediately report the president and the house speakers its verdict on litigation. Enquiry Committee or the Chief Investigator tasked to litigate a public office holder or MP shall obtain prior permission from the government or from the parliament.
The commission can also form the preliminary investigation teams comprising of suitable citizens for confiscation of assets accumulated through corruption. The preliminary investigation team has to submit findings to the commission whether the assets should be seized by the State. The commission can pass an order to carry out confiscation of the assets if it is convinced that they are accumulated through corruption.
The president and the house speakers can task the commission to launch investigations into corruption cases. MPs have the right to submit a proposal to the relevant house requesting investigation into a corruption case involving a public office holder, triggering an investigation through the house speaker. Citizens are also allowed to file complaints. One thing he or she might consider before filing complaint is a criminal charge on deliberate false complaint which is quite tricky.
Public participation in anti-corruption initiatives and the neeed for more transparency
Ensuring check and balance among different institutions and transparency are key to eradicating deeply-rooted corruption practices and ensuring clean government and good governance in democratic countries. The role of the commission is very important for ensuring better accountability and more integrity in public administration and the rule of law and greater transparency in administrative sector. The commission, which is responsible for keeping asset disclosures of public officials, should consider increasing public access to these kind of information. By doing so, there will be greater transparency and participation of citizens, civil society organizations and media in more meaningful manner.
The commission has to submit its findings in corruption cases and annual report to the president and the house speakers. The Anti-Corruption Law should allow the people to have access to these findings and reports. That would sure pave the way for greater civic engagement in the fight against corruption.
Selected amendments to anti-corruption commission law (Currently Under Debate)
According to the original law, “public office holder” means a person who is declared by the commission as one with the consent of the parliament. The proposed amendment specifies the public office holder as a deputy minister or equivalent and above.
The original law says that the president can form the commission office as necessary. The proposed amendment says that the commission has to seek the approval of the government to extend the office operation and open more branches. It is obviously seen that the situation indicates the commission’s independence and financial dependence of the commission on the government.
The original law allows the commission to pass the order to carry out confiscation of the said money and property if it is convinced that they are accumulated through bribery. The proposed amendment allows the owners to appeal at the government which can reverse the commission’s decision. The executive appeal of the commission’s decision is rather a tricky system to just weaken its position.