Political participation, governance and integrity of the state

Twenty-five civil society organisations have outlined some of the most pressing reforms necessary to protect human rights and democracy in Myanmar. An online platform will be launched on 9th October 2020, where election candidates from all parties will be able to sign up to these pledges and commit to taking action in the Hluttaw or in government, if elected. Members of the public will be able to see which candidates support the various legislative or policy reforms, helping to inform their choice at the ballot box. After the election, the platform will be used to monitor progress with reforms. To mark the launch of the platform we will be publishing a series of articles on the pledges between now and the elections on 8th November.

Article 21 of the Universal Declaration of Human Right, to which Myanmar is a signatory, states that everyone has the right to take part in the government of his country, directly or through freely chosen representatives; and that the will of the people shall be the basis of the authority of government expressed in periodic and genuine elections which shall be by universal and equal suffrage.

Democracy is more than holding elections. It requires an ongoing process of involvement of people in the decisions of government. Public participation in government is a human right. Laws and policies that have developed with the close involvement of a wide range of stakeholders will result in better outcomes, because the impacts on different groups and/or unintended consequences can be properly explored. Government is not democratic if it is not participatory, transparent and accountable. Governments which fail on these tests tend to produce poorly conceived laws and policies that serve elite interests and marginalise the principle of universal human rights.

The organisations consulted for this project felt that the policymaking process across government is poorly understood. There is a lack of understanding of the differences between strategies, polices, laws, regulations, guidelines, orders, notifications and other instruments. Policymaking is messy and confused, for example:

• government strategies contain broad objectives without any indicators to measure progress;
• government often jumps quickly to the conclusion that a new law is required without considering alternatives ways to achieve the objective;
• the Hluttaw passes law but little/no changes are made in regulations required for government officials to implement laws;
• New laws seldom make reference to past laws that need to be revoked or changed, creating a confusing patchwork of laws governing a single sector.

All organisations interviewed placed a high priority on the need for a right to information law as essential for democratic governance. But transparent disclosure about government budgets, court judgements, parliamentary proceedings, local committee decisions, and so on, remain the exception not the norm. A right to information law proposed under the previous government has been blocked. Civil society has therefore become sceptical about political will on the right to information. The Ministry of Information controls government messaging rather than facilitating information sharing. As such, the Ministry responsible for any future implementation of an RTI law has a vested interest in resisting it.

Most of the organisations talked about how they felt locked out of the policy-making process under the current government. Public participation in the drafting of policies and laws is extremely limited. When consultation does take place, carefully selected organisations or businesses are invited to give views – others are barred. Some noted a bias in favour of international technical experts to the detriment of local knowledge and expertise. There are no consistently applied open public consultation standards.

Over the past two terms, the Hluttaw has made significant progress in finding its feet as a legislative body capable of holding government to account. Some positive legislative changes were noted by civil society, such as revoking The Emergency Provisions Act (Section 5 (j), the Guest List Law, and amendments to Ward and Village Tract Administration Law and Election Law. Many MPs are taking a more proactive approach to engaging with civil society and seeking evidence to inform their interventions in parliamentary session. However, most CSOs raised a number of issues concerning Hluttaw proceedings, including about the quality of legislation, slow progress with laws to protect human rights, controls placed on MP’s autonomy to speak freely by their political party; and the secretive nature of Hluttaw committee meetings.

The current government has tended to centralise power away from states/region. In light of the importance of a federal settlement within the peace process, it is surprising more has not been done to grant further power to subnational and local government. Civil society feel there are unexplored avenues for empowering state/region and sub regional government bodies, even within the constraints of the current constitution.

All those consulted mentioned the positive move of the General Administration Department (GAD) from the Ministry of Home Affairs to the Office of the Union Government. Although there is yet much impact on the ground, the movement lays the foundation for effective local governance and future federalism. Many analyses of local governance in Myanmar have pointed to some of the positive elements of municipal laws and Development Affairs Committees, for example, so there is question of how to make these same more democratic models available in rural areas.

Civil society applauds some government moves against corruption, however the willingness to investigate and prosecute seems to be guided by political motivations. The definition of corruption appears to only concern graft / direct bribery; and is less concerned with grand corruption or the networks of patronage that often unfairly influence public policy decisions. More transparency of decision-making process is required. There remains a widespread practice of businesses making donations to government bodies. The risk of bringing a corruption case to the attention of the authorities is too great, due to the various defamation laws and risk of prosecution if allegations made turn out to be false. There is no protection for whistle-blowers.

The government bureaucracy has historically been focused on control, and giving out orders and instructions, and so civil society acknowledges the challenge of a massive cultural shift to human rights based, inclusive and open and policymaking. Government institutions should make concerted moves away from a culture of administration, rules, control and hierarchy; and towards a culture of openness, innovation and meritocracy.

In order to move towards a system of government that is democratic, participatory, transparent and accountable, candidates for this election are invited to commit or agree to the following:

• Government should pass a right to information law as a priority, developed in consultation with the public and civil society.
• Ahead of the adoption of an RTI law, Government departments and agencies must proactively increase the disclosure of information.
• The government will work to make the policy-making process clearer and more consistent, with clear guidance on differences between laws, policies, regulations, orders, etc.
• Government must ensure that policies at all levels of government are transparent and that public consultations are conducted in a systematic manner. A cross-govt consultation standards should include a minimum consultation period (eg 6 weeks), online publication of proposals, and government’s publication of its response to comments received and how it will take them into account
• Training will be provided to civil servants to strengthen their practice in consulting with civil society.
• The structure of Hluttaw committees will be reviewed to increase effectiveness, avoid overlap and facilitate more stakeholder consultation. Parliamentary committees will conduct regular public hearings to conduct pre-legislative and post-legislative analysis. Hluttaw committee meetings will be open to the public.
• Government will publish their intended legislative agenda at the start of the new government, and the Hluttaw will provide a clear legislative timetable so that elected parliamentarians have enough time to prepare and discuss bills.
• At the regular session of the Hluttaw, the limit on the amount of discussion time allowed to each Hluttaw representative will be amended.
• Newly enacted laws should be free from provisions that lead to further centralisation of power away from the states and regions.
• The appointment of state/region Chief Ministers should be based on the wishes of the electorate in the respective regions / states.
• The government will establish a local government review to explore options for sub regional government reform. Review could consider the need for a local government act, the Devolution of GAD as staff under new local councils, consideration of locally elected mayors, and a review of DAOs, TPICs, YCDC / MCDC – and how to apply good existing arrangements in other areas.
• Government will commit to open budget standards and require that all levels of government must routinely publish public budgets online in fully machine-readable formats.
• The Hluttaw will conduct the review of Anti-Corruption Commission.
• All government meetings/committees in which executive decisions are taken, at Union, State/Region and sub-regional level, should publish the rules/terms of reference they follow when making decisions and publish their minutes. The members must declare their interests
• A Whistle-blower Protection Law is needed, applicable to both government agencies and private companies.
• Government will formulate a procedure at all levels to practice the examination of interest conflict when accepting the ‘donations’ by business to government bodies.