Posted in Political Institutions on Mar 25, 2019

Myanmar’s Union Parliament recently announced the abrupt closure of the so-called ‘Legal Affairs and Special Cases Assessment Commission chaired by U Shwe Mann. The Ananda team is currently taking a look back at the 3-year lifetime of the Commission, examining its role and its achievements.

This is leading us to ask: What are Commissions, and how do they differ from Hluttaw Committees? And what principles should apply to the establishment of such groups to ensure they make a positive – and importantly, democratically accountable – contribution.

Around the world, all systems of democratic government have in place mechanisms that allow smaller groups of politicians to work together on particular issues, sometimes with input from external experts.

Within most legislatures (including Myanmar’s Hluttaw, the UK Parliament, and the US Congress), these commonly take the form of Committees, established to look at legislation in detail and to scrutinise the work of the government. The basic idea is that full plenary sessions of parliament will never have time to look at every issue in detail, and not every MP has the time to become a specialist in every subject.

In Myanmar, within the Hluttaw there are no fewer than 38 Hluttaw Committees, established in accordance with the 2008 Constitution (Articles 115-117/147-149), according the 2017 Hluttaw Brochure, to “closely study the laws for recommendations, to analyze impacts on people and on different issues, and to spare time for discussions with the public, experts, civil societies, and academia.”

These Committees are made up of elected representatives and are therefore democratically accountable to the Hluttaw. Whilst they may hear evidence and take advice from non-elected citizens, only MPs can formally be appointed as members of a Committee.

Under the Constitution, the Hluttaw can also establish ‘Commissions’ (Articles 118 and 160). To date, the current Hluttaw has used this provision just once, establishing in March 2016 the now-defunct Legal Affairs and Special Cases Assessment Commission.

Whilst the Special Commission was established by Parliament, a number of other bodies also called ‘Commissions’ have been formed by the Executive under specific pieces of legislation, as follows: • Anti-Corruption Commission, established under the 2013 Anti-Corruption Act • Union Election Commission, established under the 2010 Union Election Law • Myanmar National Human Rights Commission, established initially by Presidential notification and later enshrined in the 2014 Myanmar National Human Rights Commission Law • Myanmar Investment Commission, originally established by the SLORC in 1994, and now formed under the 2016 Myanmar Investment Law

Whilst the English words ‘committee’ and ‘commission’ might sound similar, we can start to see from the above that there are some key distinctions.

In general, committees tend to operate internally within the Hluttaw, acting as ‘parliaments within parliament’, as important cogs within the legislative machine. Commissions, on the other hand, tend to be appointed by the ruling Executive, under specific laws that allow for their creation, to act in an advisory capacity. They tend to be focused on a specific task or area of interest, and involve, as the 2008 Constitution puts it, ‘suitable citizens’ who are not MPs.

Based on this distinction, the Legal Affairs and Special Cases Assessment Commission appeared to defy convention.

On the one hand, the Commission had characteristics in common with a Hluttaw committee – appointed by the Pyidaungsu Hluttaw and occupying one of the grand buildings in Nay Pyi Taw normally reserved for Committees.

But the Commission was established with an unusually broad mandate. ‘Legal affairs’ and ‘special cases’ could cover anything and everything. Indeed, it appears as though the Commission used this broad remit to dip into many different topics during its 3-year tenure. Since the commission is formed mostly with persons who are not sitting MPs, it is unclear from where the Commission drew its democratic mandate to participate in the legislative process. Hence the submissions to the constitutional tribunal questioning the legality of the commission.

Without a clear remit, and without a democratic mandate, it was perhaps inevitable that the Commission would become unpopular with MPs. By examining other parliamentary systems around the world, it is possible to draw out a number of recommendations that might help the Hluttaw and the ruling Government avoid future pitfalls in the establishment of Commissions and stay true to democratic principles:

  • In other countries, ‘commissions’ tend to fall into two categories. Either they perform a particular ongoing function as set out in existing legislation, much like the anti-corruption commissions and the electoral commission in Myanmar; or they are asked to look into a particular, often high-profile issue on behalf of the ruling government or head of state (eg Royal Commissions in the UK, or Presidential Commissions in the US). In this way, it is clear that such bodies are answerable to the government of the day, and have no role in the legislative functions of Parliament. Therefore, the newly established Constitutional Amendment Committee should consider the removal of Articles 118 and 160 from the constitution, which currently allow for the Hluttaw to form Commissions.

  • The above would not prevent the Hluttaw from bringing in the advice of people from outside government when examining legislation or scrutinising government performance. Hluttaw Committees may frequently deem it necessary to consult with subject experts, or the general public, in the course of developing their advice to the Hluttaw. Clear mechanisms for conducting inquiries and gathering evidence should be put in place. This would counter any tendency to form new ‘special cases’ commissions or groups each time Hluttaw members feel they need external support. When a Committee establishes an inquiry, invitations can be sought via the Hluttaw website to make written submissions, and experts from business and civil society, for example, can be invited to sit before the Committee and give evidence in person.

  • Funding and human resources must be made available to support research and consultation on behalf of the Committees. A relatively small investment here may save the public purse the potentially much larger costs associated with hastily approved legislation.

  • All public bodies, and especially those involved in the legislative process such as Hluttaw Committees, should be fully open to public scrutiny with all their proceedings published on the Hluttaw website in both accessible and machine-readable formats, and where the technology is available, live-streamed. Committees serve an extremely important parliamentary function to ensure that before legislation is put to the Hluttaw all evidence has been considered and any unintended consequences of seemingly well-meaning legislation can be avoided – it is important that the public is aware of their role.

  • The Hluttaw should give consideration to reorganising the current Hluttaw Committee structure to remove duplication of effort. Under the UK model, the lower house (House of Commons) generally has Committees that mirror the government ministries and scrutinise the business of government. The upper house (House of Lords) has fewer Committees that look instead at more cross-cutting issues and provides strategic advice to government, as in the case of the ‘Economic Affairs Committee’. Clear demarcation of roles and responsibilities of different committees can avoid costly duplication of work and improve democratic accountability. For example, both the Pyithu and Amyotha Hluttaws currently have an ‘Education Promotion Committee’, but is it commonly understood how their roles differ?

  • If the government is to establish Commissions, they should do so only under specific legislation (as with the Anti-Corruption Commission’s establishment under the Anti-Corruption Law 2013). This ensures that the terms of reference for any such Commission have been open to democratic oversight by the Hluttaw before their formation.

  • Where the ruling Executive wishes to directly appoint a Commission, outside the Constitution or other existing laws (as with Royal or Presidential Commissions in the US and UK), this should only be done where the necessity of such a Commission can be clearly established on the basis of significant public interest or urgency to advise government on a particular issue. The work of any Commissions of this nature should be time limited (eg 3-6 months maximum) and conducted in public (i.e. members of public and the press can attend all meetings).

  • Where Commissions are to be established, in each case a transparent mechanism for appointment of the Chair and other Members should be based on the skills and experience required for it to fulfil its specific mandate. The Chair should ideally always be an elected representative.

  • All politicians and the general public should be wary of the ways in which, all over the world, governments may use the establishment of commissions, task forces, special inquires and so on, as a means to protect themselves from criticism or to further their own political agenda. Such bodies can, and are, established to delay taking decisions; to deflect blame for failings away from the ruling party or head of state; or as a means to create roles for political allies. These is problems the world over and not criticisms directed solely at Myanmar. Democracy is not a fixed system, but an ongoing struggle and duty of all citizens to question the purpose and motives behind the way things work and to question our elected representatives on issues of concern.

Overall, where their role is clear and there is democratic accountability, Committees and Commissions can play an important role in improving our laws and holding government to account. Myanmar must of course find its own way in making these mechanisms work in the interests of all citizens. However, international examples may provide some clues about ‘what works’ in some of the longer-established democracies.