Not a Rubber Stamp: Myanmar’s Legislature in a Time of Transition

By International Crisis Group • December 13, 2013

Myanmar’s new legislature, the Union Assembly formed in 2011 on the basis of elections the previous year, has turned out to be far more vibrant and influential than expected. Both its lower and upper houses have a key role in driving the transition process through the enactment and amendment of legislation needed to reform the outdated legal code and are acting as a real check on the power of the executive.

Yet, some bills moving through the legislature have raised concerns that the authorities, both legislative and executive, may not be ready to give up authoritarian controls on the media, on civil society organisations and on the right to demonstrate. More broadly, the role of the 25 per cent military bloc and its impact on the legislature have been questioned. Serious individual and institutional capacity constraints and unclear procedures serve as a brake on effective, efficient lawmaking.

Several controversial pieces of legislation are being developed. The association bill under consideration would provide a framework for the registration and operation of social organisations and international non-governmental organisations (NGOs). Initial drafts were considered by local organisations and international experts to be highly restrictive and far short of global best practice. At the same time, there has been legislative willingness to consult with those local groups and listen to expert advice. The latest version is far less restrictive and addresses the majority of civil society concerns.

The law on peaceful assembly promulgated in 2011 has been widely criticised for imposing criminal penalties on those who demonstrate without permission. Scores of activists have been charged and dozens imprisoned under it, raising serious questions about the true extent of Myanmar’s new freedoms. Senior lawmakers have acknowledged that such imprisonment is inconsistent with the president’s pledge that there will be no more political prisoners by the end of the year. A proposal to amend the problematic provisions has been drawn up.

New media legislation to replace the old draconian restrictions is being debated. Again, some problematic provisions have been carried over into the draft bills, including the power to issue and revoke publishing licences and broadly-worded restrictions on content. There has been consultation with media representatives, including the press council, but so far it is not clear to what extent their concerns will be taken into account. The government has expressed some unease about having an unregulated media when many journalists still do not well understand professional and ethical standards.

What emerges is a picture of a lawmaking process with flaws but in general willing to consult with stakeholders and make use of expert inputs. Authoritarian reflexes and concerns in some quarters about opening up too far, too fast are now tempered, though not erased, by other considerations, such as public demands for consultation and a desire to meet international standards. The shape of media legislation and whether the announced amendments are made to the peaceful assembly law will be the next concrete tests of whether it is the old reflexes that hold sway or the new openness.

The 25 per cent of seats reserved for the military under the constitution has been a source of concern to many. While the reservation is not consistent with fundamental democratic principles, the military bloc has generally taken positions supportive of the reform process. There have been some tensions with other lawmakers, as the bloc has sometimes voted in support of the executive and the president and against the majority Union Solidarity and Development Party (USDP), established by the old military regime.

More broadly, lawmaking is constrained by representatives’ lack of experience and institutional weaknesses in what is the first independent legislature in Myanmar for 50 years. Lawmakers have little knowledge of democratic practice, and there is very little institutional support. Without offices or staff, with no policy and research help, and with committees lacking internal experts to report on and analyse the issues, efficient, effective lawmaking is impossible. Under such circumstances, and with a crowded legislative agenda, it is impressive how much has been achieved. But as the transition proceeds, far greater investments are needed if this critical branch of government is to meet public expectations.

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