A commentary concerning The Commission for the Assessment of Legal Affairs and Special Issues asserts that its “wings have been clipped.”
This is not surprising given that it is presided over by ’political heavy weight’ Thura Shwe Mann, including other members such as U Win Htein and Bo Ko Ko Naing. The real story is more mundane, but just as newsworthy. It speaks to institutional strengthening, advancing Sustainable Development Goal 16, (strong institutions, peace and justice) and democratic development.
As the capacity of the three Union level Hluttaws strengthens, they are recalibrating the rights and responsibilities of the Committees, Commissions and Procedures. Such developments are also underway in the State and Region Hluttaws. The changes to the Commission’s rights and responsibilities signals this recalibration.
The lack of publicly available information about the Commission’s operations, described by some commentators as “opaque”, underlines the need for review of how this information could be provided. One solution is for the Commission reports to be prepared, protecting identities, and authorised for publication by the Pyidaungsu Hluttaw.
Public and parliamentary knowledge would also be enhanced if all legal instruments were accompanied by explanatory memoranda setting out policy purpose, rationale, objects, consequences and impact assessments.
The Commission’s current role is to be found in Pyidaungsu Hluttaw Notification 30/2016. It was designed to be a technical body with two primary functions - legislative development and special issues to be assessed from a legal point of view. Notification 87/2016 clarified some rights and responsibilities making its legal basis clearer.
Notification 87/2017 was a further calibration, removing clause (e) that required the Commission to undertake a public role in the promotion of the rule of law. The Commission’s responsibility as a technical body is to ensure that the rule of law underpins its work and to articulate a rule of law guide they devised in collaboration with the Hluttaws, Union Attorney-General’s Office and other stakeholders.
The same Notification made it clear that the Commission does not itself draft rules and regulations and that, while the Pyithu and Amyotha Speakers could request opinions, reports on special issues are submitted only to the Pyidaungsu Hluttaw. Procedurally this better aligns with the rights and responsibilities of the Hluttaws.
The Commission currently fills the gap of bills drafting that in other common law countries would be carried out by a central autonomous legislative drafting unit (an Office of Parliamentary Counsel) with expertise in bills drafting, legal development, constitutional and legal jurisprudence and technical drafting skills.
Curiously, at present the Supreme Court drafts some bills, stating its authority comes from Section 100 of the 2008 Constitution. To give effect to the separation of powers and the rule of law, the Supreme Court should abstain from such legislative activity.
The Commission has also standardised the form that bills take including title, purpose, objects, operative sections. etc. Whilst both the bills format and rule of law guide require more substantive clarification, they are welcome developments.
Rigorous parliamentary oversight of bills, assessed according to legislative standards in form and substance and rule of law criteria, improves the area of legislative development. Rules and Regulations are not yet scrutinised by the Hluttaws. Such scrutiny is critical to rule of law acculturation, as many rules and regulations can be ultra vires their enabling law.
The Commission has developed criteria to determine ‘special issues’, using the characterisations of ‘national interest’ and ‘national dignity’, interpreted as large damage to an individual or group. The special issues that come to the Commission do so due to a lack of due process, poor administration, maladministration, egregious breaches of law, misinterpretation of the law and the use of obsolete laws or no law applied where it should be. This failure of administration and the Courts leaves citizens without redress or remedies.
At the end of 2017, the Commission had 397 existing laws under consideration with twenty-seven (27) for repeal, eighty-seven (87) for replacement, forty-six (46) for amendment and forty (40) bills to draft. Nine (9) bills were drafted, ten (10) amended, and eleven (11) replaced, and they had received over 2,000 complaints.
The Commission itself has no determinative power and works to encourage others to take corrective action, with successful outcomes. The Commission is also filling the gap where no systematic administrative procedures, review or correction takes place and where the courts do not dispense justice to all. It is expected that the Commission’s reports to the Hluttaws would recommend systemic action to address these gaps.
Tatmadaw MPs raised two objections regarding the Commission’s Constitutional basis and its responsibilities (or powers). The Constitutional Tribunal decided that it was intra vires (with power) not ultra vires (without power) as claimed. The second objection was that the Commission’s powers caused an overlap with the work of the Bills Committee. However, the Bills Committee is not a central legislative drafting unit and that would be an irregular function of a Bills Committee. Its primary function is an oversight (scrutiny).
The prevailing thinking is that a central legislative drafting unit will eventually be established. Some favour it to be in the Parliament, but more prefer the traditional way of being attached to the Attorney General’s Office and autonomous. In either case, the body would draft bills (amendments etc) generally initiated from the Cabinet with a policy brief.
The Commission is publicly recognised as an interim Union level body and the Commission Chair, Thura Shwe Mann, refers to it in this manner. It may morph into something more policy focused.
The changes to the Commission’s rights and responsibilities are necessary measures as the Hluttaws better articulate their own rights and responsibilities. These democratic developments should be welcomed and supported.
Janelle Saffin is a International Practitioner Parliament, Government, Law & Policy
Lawyer & Migration Agent