Countries at the Crossroads 2011 - Laos
|Publication Date||10 November 2011|
|Cite as||Freedom House, Countries at the Crossroads 2011 - Laos, 10 November 2011, available at: http://www.refworld.org/docid/4ecba64bc.html [accessed 31 July 2015]|
Martin Stuart-Fox is Emeritus Professor of History in the University of Queensland, Brisbane, Australia. He is the author of several books on Lao politics and history, plus more than seventy articles and book chapters.
In December 1975, after a thirty-year struggle, the Lao People's Revolutionary Party (LPRP) seized power from the former Royal Lao regime, abolished the monarchy, and established the Lao People's Democratic Republic (LPDR). The new institutions of government were modeled on those of the former Soviet Union and Laos is today one of only five remaining Marxist-Leninist states, two of which (China and Vietnam) are its powerful neighbors. It is also one of only five Theravada Buddhist countries, three of which (Burma/Myanmar, Cambodia, and Thailand) comprise its other three neighbors. The paradox of Laos today reflects its position on this fault line between communist leadership and Buddhism.
During its first 10 years in power, the LPRP pursued orthodox socialist policies: it nationalized industry and cooperativized agriculture. But plummeting production and peasant opposition forced a reconsideration. In 1986, the ruling party introduced what it called the "new economic mechanism." Over the next decade, land rights were returned to peasant owners, state-owned industries were privatized (except for a few strategic industries), the economy was opened up to foreign capital, and development aid welcomed. Laos reduced its close dependency on Vietnam, and in 1997 both countries joined ASEAN, the Association of Southeast Asian Nations.
Like other countries in the region, Laos was affected by the Asian economic crisis of 1997-98. Capital inflow collapsed, inflation mushroomed, and some, but not all, of the economic gains of the previous decade were lost. From 2000 on investment picked up, with China emerging over the past five years as a principal player, along with Vietnam and Thailand. In 2009, a prime ministerial decree established two special economic zones in northern Laos, to be developed by foreign companies.1 While most foreign direct investment has gone into hydropower, mining, plantation agriculture, light industry for export, and tourism, China has also invested in infrastructure development to improve transport links between southern China, Laos, and northern Thailand. A new bridge will be constructed across the Mekong at Ban Houeixai and a rail link is planned. Elsewhere road construction designed to make Laos a transport hub in mainland Southeast Asia is being funded by the Asian Development Bank as part of its Greater Mekong sub-region development plan. Improved infrastructure is stimulating development, and the current economic outlook is healthy, with projected GDP for 2010 estimated at 7.8 percent. But there is a downside. Benefits are unevenly distributed,2 and land grabbing by corrupt officials has fueled popular resentment.
The LPRP has not relaxed its grip on power. Taking China and Vietnam as its models, the party has presided over the change from a centrally planned to a free-market economy while refusing to contemplate even the most minimal democratic reforms. The LPRP is the sole political party. It determines who may stand for election to the National Assembly (NA), controls the government, and directs all mass organizations. The bureaucracy is a highly politicized arm of the party, as is the media. As a result, what passes for civil society is severely stunted. Corruption has become endemic, and rule of law is honored more in the breach than in the observance.
The degree of control exercised by the LPRP is not readily evident to visitors to Laos, however. While the tiny Christian community is suspect for its overseas links, Buddhism is encouraged. Lines of orange-clad monks make their daily begging rounds, while members of the Politburo make their obeisance to senior monks at important Buddhist festivals. Most Lao pursue their daily lives as they have always done: the power of the party is felt mainly by those who would challenge it. No criticism, or even political debate, is permitted outside the confines of the highly secretive party, which recruits its membership from the elite and the educated. Without the support of the party, promotion in government and the bureaucracy, or success in business, is impossible. As everyone knows in Laos, a powerful political patron is the key to advancement.
ACCOUNTABILITY AND PUBLIC VOICE
For the first 15 years of the Lao PDR, the LPRP ruled without a constitution. During this period revolutionary justice prevailed: the party was the law. The 1991 constitution was extensively amended in 2003, the better to reflect the political and economic reality of contemporary Laos. The amended constitution was passed by the NA and promulgated by presidential decree, but only after first being endorsed by the Politburo. In fact, the president of the Politburo was also the state president who decreed the promulgation of the constitution. Such is the overlap between the ruling party and the organs of state in Laos.
Article 3 of the 2003 constitution states that the political system ensures the rights of the multiethnic Lao people "with the Lao People's Revolutionary Party as its leading nucleus."3 Article 5 stipulates that the parliament (the NA) and "all other state organizations" function by a process of "democratic centralism." What this means is that they are organized in the same way as the ruling party, as hierarchical organizations in which information (about social issues and concerns, for example) flows up the hierarchy, and decisions flow down. This effectively concentrates all power in the hands of a tiny ruling elite at the apex of the party and the state. The degree of concentration of power is all the more apparent when it is remembered that all but one of the 29 ministers comprising the government, all but four of the 132 deputies in the NA, and almost all senior bureaucrats are party members, subject to the party discipline implicit in the concept of democratic centralism.
Articles 3 and 5 of the 2003 constitution essentially define the political system, for they define the role of the LPRP and the mode of functioning that enables it to monopolize political power. While they remain in place, it is difficult to see how multiparty democratic processes could constitutionally be introduced. In any case the LPRP leadership has repeatedly stated it has no intention of initiating democratic reforms.
Because the ruling party is all-powerful in Laos, it is necessary to understand how it works before turning to the NA or the government. The LPRP has a typically Leninist cellular structure. Party branches exist at all administrative levels, from the village through to the district and province. Cells also exist in all government ministries, in the four officially sanctioned mass organizations (the Lao Front for National Construction, the Lao Women's Union, the Lao People's Revolutionary Youth Union, and the Federation of Lao Trade Unions), and in the military and security apparatus. Theoretically each lower level delegates a representative to the next level up. In practice, delegates are appointed through the patronage of senior party officials, who thus gain networks of clients to support their ambitions to gain membership of the higher organs of the party.
Patron-client relationships are central to Lao political culture, and they function in communist Laos as traditionally they have always done. Clients include, first and foremost, members of the patron's extended family. They also include personal friends and their relations from the patron's region of origin (still very important in regionally divided Laos), from school and university, and through party connections and business interests. At the higher levels, patron-client networks may be cemented by intermarriage between families. Patronage is provided in a variety of ways, for which gratitude is shown in monetary form. The culture of patronage encourages intervention in staffing and promotion issues in the civil service, in cases of law, in business dealings, even in school and university enrollments and health care. Political advantage is gained by placing members of one's network in key positions in the party or the government or the bureaucracy. Thus, much of the matter of politics is about whose clients get what positions, for which trade-offs are essential. As a result, the public service is corrupt and incompetent, with officials loath to make decisions or take responsibility. Political maneuvering within the LPRP is highly secret and nothing is discussed in the press, so rumors abound in response to important political events, as when former Prime Minister Bouasone Bouphavanh resigned in December 2010.4 Party cohesion is maintained because all members concur that as the LPRP provides their principal, if not sole, access to power and wealth, it must be preserved.
The most significant events in the Lao political calendar are the five-yearly LPRP congresses, the eighth of which took place in 2006 and the ninth in March 2011. It was expected that several aging generals who had dominated the Politburo for the previous decade would retire at the eighth congress, but the only one to do so was the party (and state) president, General Khamtay Siphandone, who made way for Lieutenant-General Choummaly Sayasone to take his place (in both offices). At the ninth congress, two more generals did retire, and disgraced former prime minister Bouasone Bouphavanh lost his position. This allowed the promotion of three new members to the 11-member Politburo. The Party Central Committee was expanded from 55 to 61 members, and a nine-member Secretariat was named. Needless to say, no democratic political reforms eventuated.
Within weeks of the Ninth Congress, NA elections were held, to enable the new assembly to endorse a new government. Suffrage in Laos is universal for all aged over 18. All NA candidates require endorsement by the party-controlled Lao Front for National Construction, whose structure parallels that of the party. Only a handful of independent candidates were permitted to stand, four of whom were elected. The other 128 are members of the LPRP, including a number of senior party officials slated to become key figures in the new government. The entire electoral process was closely supervised by the party, with no outside observers permitted. At its first sitting, the new NA elected Thongsing Thammavong as prime minister.
Though the elections in Laos are not free and fair in a democratic sense, individual candidates can try to convince people to vote for them, mostly by promising to present local issues at the national level. Candidates try to outbid each other, but voters are not coerced into voting for one candidate or another. Each slate contains three or four more candidates than seats, but from the party's point of view it matters little who gets elected as all candidates are either party members or committed to supporting the party. Preferred candidates head each provincial list, which is enough to ensure their election as many voters vote down the slate. Nevertheless a substantial number of new deputies is usually elected (as high as sixty percent in 2006). No elections are held for other levels of government. A proposal a decade ago that elections should be held in the larger municipalities has been shelved. Village chiefs, district leaders, and province governors are all appointed by the party. So are senior members of the public service. Upper echelons of the judiciary are appointed by the NA, which simply endorses party nominees. The total dominance exercised by the party thus effectively eliminates any checks and balances that might apply between the executive, legislative, and judicial branches of government.
The first acts of the newly elected NA members are to appoint the state office holders (president and vice president) and endorse the composition of the government that had already been decided upon by the ruling party. Though constitutionally the government is answerable to the NA, in reality it is answerable only to the LPRP Politburo, of which the prime minister and his four deputy prime ministers are all members. A majority of the remaining 24 ministers are members of the party Central Committee. Though the new ministers appointed in 2011 are younger and better educated than those they replaced, their appointments are unlikely either to improve governance or promote transparency. All policy is decided by the party without public discussion. As the media are tightly controlled, no criticism or even discussion of party policy is permitted. NA members have, however, begun to exercise their right to question government ministers and criticize government failings in general terms. For example, deputies have questioned what the government is doing about the increasing disparities of wealth and rising levels of corruption. As all but four are party members, criticism seldom specifies details or names names – but at least the debate does get reported in the Lao media.5
Civil society hardly exists in Laos. Organizations such as the Lao Bar Association, established by government decree in 1996,6 or the Lao National Chamber of Commerce and Industry, established by a statute passed by the NA in December 2001, are semi-governmental and not fully independent.7 The only popular associations permitted in Laos prior to 2009 were organizing committees for religious functions, peasant producer and water-user associations, school associations, and sporting clubs, none of which were remotely political. Even attempts to set up cultural and historical associations failed to receive permission from the Ministry of Information and Culture (MIC), for fear discussions might become political.
After three years in the drafting, however, in May 2009 a Decree on Associations was finally signed into law, which provided the legal basis for establishment and registration of local nongovernmental organizations (NGOs).8 The decree, which came into effect in November 2009, permits two or more Lao citizens to set up an association to promote economic and professional interests, creative endeavors, and social welfare. Registration provides legal status for as many as 100 such organizations believed already to be in existence, though it brings them under closer official scrutiny by the Public Administration and Civil Service Authority. It does not free them of political control. Foreign NGOs are free of such control, but they must apply to and be registered by the Ministry of Foreign Affairs.9
The MIC controls all media in Laos. There is no freedom of the press and no legal protection for Lao journalists who fail to reflect the party line. Most Lao journalists are actually party members attached to the MIC. Even though the NA finally passed a Media Law in July 2008 (that took seven years to draft), there have been no improvements in media freedom since. Laos still ranked 169 out of 175 countries on the Reporters Sans Frontières Press Freedom Index for 2009.10 Official censorship does not apply prior to publication, but self censorship is very evident, which is hardly surprising given that "slandering the State, distorting party and state policies, inciting disorder, or propagating information or opinions that weaken the State" can all be applied to journalists under the Lao penal code.11 The new media law does permit foreign media organizations to establish an office in the Lao PDR, but under such strict constraints that none has yet done so.
Use of the internet has increased rapidly in urban areas over the past four years. An estimated 527,400 Lao were using the internet by December 2009, representing a 7.5 percent penetration rate, though connections were entirely confined to urban areas.12 In 2002, the Lao National Internet Committee installed filters to block unwanted information. Anyone attempting to bypass the filters can be fined, while anyone circulating news reports critical of the party or the government can be prosecuted under the penal code. The internet is not being used by young Lao for political organization – except by expatriates who are opposed to the regime and who have little traction in country. Television is a more popular form of entertainment, and satellite TV dishes are widely available on payment of a license fee. As content on the Lao state channel is of limited interest, most Lao viewers along the Mekong tune in to Thai TV stations.
In addition to monitoring the internet, the government keeps an eye on cultural expression to ensure that no political criticism creeps in. The Lao Writers' Association, with a membership of just over one hundred, is closely tied to the Ministry of Information and Culture. Visual and performing arts sound two themes, traditional and revolutionary, and eschew social criticism. Effectively, therefore, though the government does promote traditional Lao and ethnic minority culture, there is no artistic freedom.
Civil liberties for Lao citizens are set out under Chapter 4 of the 2003 amended constitution, which covers obligations and fundamental rights. Four of the 18 articles were new additions to the 1991 constitution – the rights to vote, to work, to lodge complaints and petitions, and to be free of arrest or search without a court order. Of these, the third is disregarded, but the fourth does provide some assurance against arbitrary arrest and so reinforces the slow evolution toward rule of law.
The constitution guarantees Lao citizens equality before the law, in terms of "gender, social status, education, beliefs and ethnic group" (Article 35). A separate article stipulates gender equality, while another guarantees freedom of religious belief. These constitutional guarantees are reassuring, but a large gap exists in Laos between the letter of the law and the reality of the limited human rights enjoyed by Lao citizens.
Take, for example, "the right and freedom of speech, press and assembly" that Article 44 guarantees Lao citizens, along with the right "to set up associations and to stage demonstrations which are not contrary to the laws." As one of the constitutional obligations of all citizens is to respect the laws of the land (Article 47), and as the penal code has very broad definitions of what constitute "betrayal of the nation," rebellion, and improper gathering and use of intelligence (Articles 51, 52, and 53),13 the state effectively has the means to curtail any or all of these rights at any time.
Often administrative procedures are sufficient for the state to exert control. Public demonstrations of any kind, for example, require a permit. As such permits are never issued, the constitutional right to stage demonstrations is effectively denied. Even planning a peaceful demonstration is prohibited. On November 2, 2009, Lao security forces detained and questioned some 300 "farmers and others" planning to submit petitions to the government during the Southeast Asian Games due to be held in Vientiane the following month. The petitions expressed grievances over land seizures by party officials and poor rural services.14 Nine leaders were reportedly arrested before any petitions could be presented, though Lao authorities denied their arrests. Nothing has been heard of them since.
Given the heavy hand of the state, it is hardly surprising that Lao citizens are most reluctant to test any of the rights they supposedly enjoy. While a degree of freedom of speech is permitted in private,15 no public freedom of speech exists. The last time an actual public demonstration took place was in October 1999, when a small group of about 30 students tried to unfurl a banner calling for greater political freedom. The demonstration was immediately broken up by police, who arrested five ringleaders. The five were sentenced in June 2001, though the Lao authorities have never officially confirmed that a trial took place. Since then one student has reportedly died, apparently from mistreatment, while the whereabouts of three of the others is unknown.16
Some progress was made on the civil liberties front, however, when in September 2009, nine years after it had signed up to the International Covenant of Civil and Political Rights, Laos finally ratified the treaty. At the same time it ratified three other conventions, on the rights of people with disabilities, on economic, social and cultural rights, and against corruption. It remains to be seen, however, whether the government is serious with respect to implementation. The state does protect citizens from crime and terrorism, and it cooperates with neighboring states to prevent human trafficking (though not very effectively). New highway construction threatens to facilitate human trafficking, as it has drug smuggling, prostitution, and HIV/AIDS. Threats to the rights and liberties of citizens comes more from state authorities than from non-state actors, however, and for these there are no means of redress.
Access to prisons in Laos is denied to human rights organizations, but former inmates report that conditions are appalling. Amnesty International has long accused the Lao government of using torture and other degrading treatment on prisoners, charges which the Lao authorities reject.17 Political prisoners may be held incommunicado for long periods, even before charges are laid. Families of prisoners with the right political connections (and enough money) may provide additional food and medicines to inmates and even arrange to have their cases brought to the appeals court. Prison authorities always require payment for any service performed, even to act upon an order for release. Prisoners who have completed their sentences may be released only if they have paid all the costs they are deemed to have incurred in prison.
Several political prisoners known to be held in Lao jails are Hmong. The Hmong insurgency goes back to the earliest years of the regime and has its roots as much in fear of reprisals as in political opposition. It has been kept alive largely through support from Hmong resettled in third countries, principally the United States. After a quiescent period, a series of attacks on buses in 2003 was blamed on Hmong "bandits" and led to a crack-down by government security forces. The following year, the first Western journalists managed secretly to make contact with Hmong insurgents and brought their plight to public attention. After that small groups of mainly women and children surrendered to Lao authorities. Others fled to join Hmong in Thailand who had been given refugee status by the UNHCR. Thailand refused to accept the newcomers as refugees, and under an agreement with Laos, repatriation began in 2006 and was completed in December 2009 when more than 4,700 Hmong were sent back to Laos from camps in Petchabun and Nongkhai provinces in Thailand. These included a group of 158 who, according to the UNHCR, were eligible and been accepted for resettlement in third countries. After insistent demands for international access to resettled Hmong, a visit to a resettlement village was stage-managed for UNHCR and diplomatic representatives in March. The presence of Lao officials made it impossible to discover whether former refugees had been mistreated.18 Since then access has continued to be restricted.
The Hmong are only one of 49 ethnic groups listed in the 2005 census, though with a population of 451,946 they are the second largest minority, after the Khamu (with 613,893), out of a total population of 5.62 million. During the Vietnam War, the Hmong were divided: some were recruited into the CIA's secret army; others fought for the Pathet Lao revolutionaries. While most Hmong associated with the secret army were either airlifted out with their leader, General Vang Pao,19 or fled as refugees, those who fought for the Pathet Lao were rewarded. Hmong have risen through the Lao People's Revolutionary Party to become province governors and members of the Central Committee, and in 2006 a Hmong woman (Pany Yathothu) was elected to the powerful Politburo. She is now president of the National Assembly, and another Hmong is minister of justice.
Other upland ethnic minorities have also been resettled from hilltop villages, where they practiced slash-and-burn agriculture, to land where supposedly they can practice permanent agriculture and have better road access. There has been considerable criticism of this internal resettlement program, whose stated purpose is to preserve forest resources and improve government services, but whose actual effect is to threaten minority cultures.20 Resettlement is supposed to be voluntary, but coercion has been used at times. Promised government services have not materialized, and poverty has increased.
Minority representatives are, like the Hmong, recruited into the party and the army, and some have reached positions of power. Additional political influence has been exerted by minorities through membership of the Lao Front for National Construction (LFNC). Over the past few years, however, the LFNC has been losing political influence. It is now little more than an arm of the party whose principal task is to quell any political criticism or social unrest. So far the government has done little to improve living conditions and opportunities for ethnic minorities, despite proclaiming its good intentions. Neglect, rather than discrimination, is the problem, and as a result disparities between urban and rural standards of living and incomes continue to grow.
Many ethnic minorities are animists of one kind or another, but some have converted to Buddhism or Christianity. Indeed, while a large proportion of Catholics are ethnic Lao, the majority of Protestants (most members of the Lao Evangelical Church) are from ethnic minorities (including Hmong and Khamu). All Christians are regarded with some suspicion because of their international links, though most is focused on minority Protestants.21
Churches previously closed have been reopened, but evangelization, though theoretically permitted by the 2002 decree on religious practice, is effectively prohibited on the grounds that it would create social division.22 By contrast the first ordination of a Lao Catholic bishop took place in April 2010.
Other religions have not been so targeted. There are tiny congregations of Baha'i and Muslims in Laos, but almost two thirds of the population (including virtually all ethnic Lao) are Buddhists. The remainder is classed as animists, whose religious practices are accepted as part of their culture. Freedom to practice their religious beliefs has improved for both groups.23
The Lao United Buddhists Association functions under the watchful eye of the party, but monks no longer have to study Marxism-Leninism. Buddhism is even encouraged as being central to Lao culture and history by a ruling party seeking to bolster its ideological appeal through embracing Lao nationalism. There is reason to believe that the party takes a hand in deciding who becomes head of the Lao monastic order, but as Buddhism in Laos becomes increasingly free of direct party control (provided it remains apolitical), direct intervention appears to be decreasing.
Another minority is the roughly 8 percent of the total population who have some form of disability.24 A declining proportion of people with disabilities suffered war injuries. In the more than 55 percent aged between 6 and 18 years who were born after the war ended, disabilities are overwhelmingly congenital (36 percent) or due to illness (41 percent). In only 1 percent were they due to unexploded ordnance (UXO), though these accounted for 65 percent of all amputees, plus 13 percent of all cases of paralysis.25
Very little is being done to assist these people. There is some physical and mental rehabilitation for UXO victims, especially children, but little in the way of special training or employment for the disabled. A decree has been issued on the rights of people with disabilities and a national strategy has been drawn up, coordinated by the Ministry of Labor and Social Welfare, but most assistance is provided by international NGOs, UN agencies, and some aid programs of friendly states. Meanwhile Laos has taken a lead in applying the recent convention on cluster munitions, and in clearing UXO, though officials doubt that the job can be done in ten years. So in the meantime there will be more victims.
The Lao government has been more active in proclaiming its commitment to gender equality than in promoting programs aimed at improving the lot of women. The 2004 Law on the Development and Protection of Women26 enshrines the leading role of the Lao Women's Union (LWU) in promoting both goals. It defines development as ensuring "good health, knowledge, capabilities and revolutionary ethic." In November 2005, the Gender Resource Information and Development Center, a project of the LWU, published the first Lao PDR Gender Profile.27 This comprehensive report was drawn up to provide the basis for all future policies with respect to women in Laos. It sets out the enabling legal environment for gender equality, the role of women in the economy, their health and education, their special vulnerabilities, and their involvement in decision making.
This was a good first step, but since 2005 progress has been mixed. Of the practical measures recommended in the Profile, programs to empower women through increasing educational participation to parity by 2015 and to enhance gender awareness among senior (male) officials have made slow progress. Other programs to promote socioeconomic development, especially among ethnic minority women, and to increase political participation by women have had more success. According to the 2005 census, 31 percent of government employees are women, though they were disproportionately represented at the lower levels. A quarter of the members of the NA are women; three government ministers (out of 29) are women, and one woman is a member of the Politburo (out of 11). At the provincial and district levels, however, female participation in decision making is far less evident. Progress has also been made in women's health, and in the treatment of HIV/AIDS.
The Profile took special note of the growing problem of trafficking of women and proposed a number of legal and educational measures to combat it. Though the Profile provided no figures, it is believed that up to 20,000 Lao are trafficked annually to neighboring countries. About a third are men who are exploited as bonded labor. Some women and girls are sold as wives, but most end up in prostitution. The Lao government is aware of the problem but has done little about it. In 2005, the government amended the penal code to include child trafficking and imposed penalties of 20 years' imprisonment.28 A few cases have been prosecuted, but outside Vientiane some local officials are believed to be protecting the perpetrators. Most of the impetus for the government to improve matters and to provide care for victims of trafficking has been due to pressure from international organizations.
Workers' rights are supposedly protected and promoted by the Federation of Lao Trade Unions. But this is an organization under close party control, whose purpose is rather to keep wages to levels that will attract foreign investment. All unions are organized by the party, and workers are not free to form their own trade unions.
RULE OF LAW
Upon coming to power, the LPRP replaced all the laws of the former Royal Lao regime with its own "socialist law" administered by people's courts controlled by the party. Not until January 1983 was a Supreme People's Court (SPC) established that could act as a court of appeal to review decisions taken by these people's courts. Civil and criminal codes were not promulgated until 1989 and 1990, respectively. Only when the constitution of the LPDR was finally enacted in August 1991 was the Lao legal system provided with a proper constitutional underpinning.
Under the amended 2003 constitution, the NA appoints the president of the Supreme People's Court and the supreme public prosecutor, on the recommendation of the state president. They in turn appoint and preside over a supposedly independent judiciary. Judges are appointed by the National Assembly Standing Committee, on the recommendation of the president of the SPC, but the party decides on the names to be submitted. Judges may have limited legal training and experience, but over recent years several foreign-assisted programs have helped improve their command of the law and legal procedures.
The Public Prosecutor's Office (PPO) is supposed to monitor implementation of all laws by the government, the civil service, and mass organizations and to take them to court for any transgressions. This is an impossible task, both because the PPO is understaffed and because it too is an arm of the party (which has been most reluctant to prosecute itself or its members). Not surprisingly, no government department or instrumentality has been charged with any breach of any law. The legal provisions of the constitution make no mention of either the ruling party, which is supposedly policed by its own Control Commission, or the security apparatus or the military (which has its own courts.)
Inadequate channels exist for making new laws known to the people, apart from a column in the party newspaper. Among urban professionals, knowledge of the growing body of laws and decrees is often sketchy, although increasingly, educated and informed Lao citizens do refer to the law to defend themselves or others against arbitrary decisions or actions by party or government officials. As a large proportion of the rural population is illiterate and ignorant of the law, however, peasants tend not to use it. Instead they resort to the methods they understand: the influence of relatives, friends, and patrons and the payment of bribes. So in rural areas the party still determines the law. The deficiencies in the dissemination of information about legal rights, especially with respect to land, are widely recognized and are the focus of several NGO and government programs.29
The interpretation of many laws requires testing, but in Laos there is no constitutional court in which to do this. Whether or not a law is constitutional or an interpretation valid is decided by the Standing Committee of the National Assembly, composed of the president and vice-president, plus the presidents of the six NA commissions. In any case, the application of the law seldom depends on the letter of the law and its legal interpretation. Three other factors influence judgments: payment of bribes; conformity with party policy (in Lao nayobay, a term that has taken on the additional meaning of bending the law in cases where a "policy ruling" is made in favor of an individual); and extralegal pressure in the form of intervention by politically powerful friends or relatives. This is the most efficacious means of winning a legal case, especially a civil dispute. So, as the Lao say, it all depends on who has "the strongest string." Those who have the right connections, or who bribe the right people, routinely escape sentence or are lightly punished – to the increasing anger of ordinary Lao.30
From the point of view of legal authorities, political intervention in sensitive cases may be a two-edged sword, for they may find themselves evaluating a case not on the basis of law but on which of two conflicting sets of phone calls and other private interventions represents the more powerful political interests. Failure to get this right has reportedly cost at least one justice official his job.
For those arrested, there is no presumption of innocence even in criminal cases, much less in political ones. Prisoners may be held for months while prosecutors assemble their case against them. There is no legal aid program, though the United Nations Development Program is assisting in establishing one. Finally, it should be noted that judgments on all cases with political or security ramifications are routinely submitted to senior party leaders before being handed down. Despite frequent statements by the party and government that they are committed to establishing the rule of law, until the court system is fully independent of the party, this will remain a chimera.
In the meantime, the rule of law in Laos is highly compromised. The police and security forces are under close party control and are beyond the reach of public scrutiny. They are not held accountable for any abuse of power they commit, and there is no means by which they could be, for no independent body exists to investigate complaints against the police. It is routinely assumed that anyone charged with an offence by the security forces must, prima facie, be guilty – otherwise they would not have been arrested in the first place. Judges, whatever the level of their training, are not free and independent in cases "endangering the security of the state:" they are expected to hand down guilty verdicts. Politically sensitive trials are often held in secret, with no announcement of the sentence. It can be difficult, in the face of a wall of official silence, to discover whether a trial has taken place at all, or even whether a political prisoner has been released after serving his or her sentence.31 Needless to say, the accused have no access to independent counsel in such cases.
Lao citizens do enjoy the protection of law with respect to crimes against person and property, including their homes and personal possessions. Land is another matter. For two decades land titling has been underway for urban areas, beginning with Vientiane. This has led to a large number of disputes, which are resolved by a court of arbitration. Once again payments and influence are crucial to obtaining a desired outcome, so disputed land frequently ends up in the hands of the wealthy and well connected.
In the rural areas, most farm land reverted after cooperativization to its original owners, who were given 'use rights', which can be transferred (through sale or exchange) or passed on to designated family members. The ownership of all land resides in the 'national community' and is managed by the state. All land not in agricultural use belongs to the state, including forest land traditionally used for slash-and-burn farming by ethnic minorities.32
This "protected forest" can be leased for a fee to villagers (provided they can pay) but most often to loggers or large companies for plantation agriculture.33 Across Laos large areas of land have been lost to local villagers in this way, while party officials pocket substantial bribes for signing off on the long-term lease of the land to Chinese entrepreneurs. The topic of arbitrary appropriation of land has produced much anger and social conflict, and the matter has been raised in the NA.34 In 2007 the government decreed a moratorium on land concessions, and the NA passed a law designed to strengthen the State Inspection Authority, which is responsible for monitoring the activities of civil servants. Implementation has been patchy, however.
This is not so say that incremental improvements are not being made in introducing and enforcing the rule of law. A body of law is slowly being developed and applied in the courts. For people to have more confidence in the legal system and the courts, however, a rigorous separation will be necessary between the judiciary and the party. It is not sufficient for the LPRP to urge its cadres to respect the law: senior party members must not interfere in legal procedures. Wide acceptance and application of the rule of law will also require an improved level of education and better understanding of individual rights than exists at present among the general population. Conservatively, it will require another generation before the rule of law holds sway in Laos – and even then law is unlikely to be free of patronage politics, even if the LPRP eventually loosens its hold on power.
ANTICORRUPTION AND TRANSPARENCY
What counts as corruption depends to a large extent on how it is defined and what is considered acceptable or unacceptable in a given culture. In traditional Lao society, it was considered natural for resources (wealth) and power to be concentrated in the hands of the ruling elite (the nobility), by virtue of their karma, which determined their birth and social status. Power is derived from networks of obligation and loyalty given in return for protection and assistance in times of need; in other words, for the judicious distribution of resources. But for that to happen, ruling elites had to gain control over resources to distribute.
Under the French, the traditional structure of Lao society hardly changed, except that the punitive tax regime encouraged evasion and contempt for the law. Once Laos obtained independence, the flood of American aid provided the opportunity for those in positions of power to enrich themselves. So scandalous did corruption become that it provoked U.S. congressional investigation. Criticism of the corruption of wealthy families gained the Pathet Lao considerable public support and became a factor in their campaign to seize power in 1975.
Under the Lao People's Democratic Republic, corruption was initially limited to the exercise of power rather than the accumulation of wealth, but within a decade, with the introduction of a free-market economy, party cadres began using personal power for financial gain. Some middle-level bureaucrats were imprisoned in 1983-84 on charges of corruption, but this was political payoff.35 Over the decade from 1986 to 1996, corruption became widespread within the LPRP and it was clear that the party's internal watchdog, the Party Control Committee, was completely ineffectual. Two new anti-corruption bodies were thereafter established: the State Audit Organization (1998) reporting to the minister of finance, and the State Inspection Authority (2001) reporting to the prime minister. In 2005 the NA passed an anti-corruption law,36 and in 2009 Laos ratified the UN Convention against Corruption. Other measures include establishment of a State Audit Authority, a Customs Law (2005), and a new Taxation Law (2005).
None of the measures introduced has had much effect on the prevalence or level of corruption.37 In the year 2007-2008, just 25 people were prosecuted for minor offenses such as smuggling timber and soliciting bribes for issuing identification papers.38 No senior officials were prosecuted. In both China and Vietnam, high-ranking officials convicted of corruption have been given long prison sentences or even executed (in China) as a warning to others. All that has happened by way of punishment of corrupt officials in Laos is that they have been quietly transferred to another position in the bureaucracy. Party cadres guilty of massive corruption have been demoted in the party ranking, only to be restored later to powerful positions in the party and government.39
By the time Laos entered the 21st century, corruption had become deeply rooted in the political culture of the country.40 Apart from the usual bribes and evasion of duties and taxes, the most damaging forms have been the plunder of the banking system by those with political connections, who obtain loans, often by way of state-owned enterprises, that are never repaid; and debasement of the legal system through rulings decided by bribery and political pressure. Illegal timber smuggling (especially by the military), cronyism in the awarding of contracts, and land grabbing are also widespread, lucrative forms of corruption. In tertiary education, the powerful make sure that their children obtain good marks and overseas scholarships, which means that more talented but less well-connected students miss out.
Despite being nominally Marxist-Leninist, direct state involvement in the economy in Laos has been reduced to some two dozen 'strategic' state-owned enterprises (SOEs), including natural monopolies such as electricity generation and distribution and water supply, plus enterprises like the state printer. The financial management of the remaining SOEs is non-transparent, but it is known that they have received substantial government loans. Meanwhile the military pursues its own economic interests with minimal scrutiny. The involvement of individual party and government officials in the economy is widespread, since businesses often protect themselves from repeated demands for bribes through buying the protection of a powerful senior party cadre. In this way members of the Politburo and Central Committee and their families build up extensive business interests.
One area in which there has been improvement is in the registration and regulation of foreign business ventures. Delays and corruption associated with foreign investment were reduced by passage in October 2004 of a Law on the Promotion of Foreign Investment,41 which streamlined application procedures through a Planning and Investment Committee, presided over by a senior minister. Subsequently responsibility for foreign investment was taken over by the Department of Domestic and Foreign Investment located within the Office of the Prime Minister. This limited the bribery required for investment applications to be approved, but shifted the focus of corruption to the land and facilities necessary to operate. Party officials misappropriate payments made to lease land, which in the case of plantation agriculture has often been fraudulently seized from traditional owners. Most foreign enterprises operating in Laos routinely ensure that they obtain the cooperation of local party officials through generous donations to party functions, a portion of which finds its way into the pockets of individuals.
Ironically, some laws have actually increased corruption because officials can demand larger bribes not to apply them, or more officials can demand payment to turn a blind eye. For example, the Environment Protection Law has done little to protect the environment. Officials responsible for its enforcement are still paid off, and it has added another layer of local officials to those at the district and provincial levels – in this case the rangers appointed to police 'protected areas.' The laws on customs and taxation passed in 2005 have had a similar effect.
As no protection is provided by the state (in the form of an ombudsman's office or legislation protecting whistleblowers) for those who report corruption, no one does. It is assumed that whatever is happening has been cleared with someone in authority (in the party), and so people prefer to mind their own business. And speaking of business, senior public officials from the president on down have business interests on the side, to which no conflict-of-interest rules apply. As no public official in Laos is required to reveal personal assets, rumor and word of mouth are the only means of knowing who owns what.
In such an environment, permeated by the power of a single ruling party, no auditing system can be independent of political pressure. Instead, auditors simply become complicit in the corruption they are supposed to contain. The State Audit Organization is not independent of either the government or the party: any action in response to its reports requires a political decision. So great have been the losses of some state-owned enterprises, however, that their financial management has been taken over by the Ministry of Finance. State-owned banks have twice had to be recapitalized as the extent of unpaid loans to state-owned enterprises and party officials brought them to the brink of bankruptcy.42
Under the constant urging of international organizations such as the World Bank and the Asian Development Bank, the government has instituted a number of reforms designed to improve governance and transparency (such as establishing an Audit Office). More information is being published, in the form of policies, reports, and legal statutes and decrees (by the Lao Bar Association, with support from the UNDP). Lack of effectiveness is due to poor enforcement – which comes down to a lack of political will on the part of the LPRP.
Nothing is publically available on the deliberations of the party, except for bland statements of decisions adopted. And there is no free media able even to speculate on what might be going on – let alone a freedom of information law.
This lack of transparency extends from the party to the government to the bureaucracy. Even relatively senior civil servants are reluctant to take decisions in their areas of competency, preferring to refer them up the (party) hierarchy. When decisions are made, no reasons are given. It is expected that they will be acted upon in the spirit of "democratic centralism;" that is, unquestioningly. This equally applies to areas where corruption is prevalent, such as the award of government contracts and other decisions with financial implications, including tax rulings and exemptions – with the result that revenue collection is often severely compromised.
International financial institutions have long criticized the lack of transparency in Laos. Under such pressure a procurement monitoring office was established in 2003 within the Ministry of Finance, which is supposed to improve procurement processes, and since 2002 documentation on the budget has been regularly published in the official government gazette. The budget itself is debated by the NA, but its provisions are seldom questioned, and it is always passed as presented, along with the financial statements of government ministries. Extra-budgetary expenditures are not reported, and military expenditures are completely opaque and subject to no public scrutiny.
Only in the areas of foreign investment (see above) and foreign aid have attempts been made to provide more transparent procedures – for the obvious reason that senior Lao authorities want the projects and programs to go ahead. Investment provides employment and aid improves living conditions and services, for both of which government officials not only take credit, but also recommend employees. So the system perpetuates itself, without checks and balances, but with indirect foreign support through the aid that Western governments continue to provide, despite leakages, in preference to permitting Laos to slip entirely into China's widening orbit.43
The Lao authorities should further amend the 2003 constitution to eliminate both the special role allotted to the Lao People's Revolutionary Party and all reference to democratic centralism in order to allow the organization of other political parties and their participation in NA elections.
The government should permit citizens to exercise their freedoms as set out in the constitution and should refrain from using penal provisions to punish them when they do so.
The government should introduce measures to protect citizens from abuse by the security forces, including defining the powers of the police by law and establishing a complaints tribunal or an independent ombudsman's office.
The government should enforce the provisions of its anticorruption legislation and prosecute corrupt officials in the courts.
The media should be permitted freely to discuss government policy and decisions, and should be allowed to investigate and report on corrupt practices.
1 "Lao Govt approves decree on special economic zones," Vientiane Times, November 27, 2009, http://www.asianewsnet.net/home/news.php?sec=2&id=8835.
2 Ekaphone Phouthonesy, "Assembly: unbalanced wealth distribution limits benefits of growth," Vientiane Times, June 16, 2010, http://laovoices.com/2010/06/16/assembly-unbalanced-wealth-distribution-limits-benefits-of-growth/.
3 Constitution of the Lao People's Democratic Republic, http://www.un.int/lao/constitution.htm.
4 Martin Stuart-Fox, "Family Problems," Inside Story, January 19, 2011, http://inside.org.au/family-problems/.
5 See, for example, Ekaphone Phouthonesy, "National Assembly conference opens," Vientiane Times, June 15, 2010, http://laovoices.com/2010/06/15/national-assembly-conference-opens-na-president/.
6 See http://www.laobar.org/index.html. This site disseminates useful legal documents, in English and Lao, in an attempt to increase awareness by Lao of their legal rights.
7 For a list of member associations of the Lao National Chamber of Commerce and Industry, see http://www.laocci.com/index.php?option=com_content&view=article&id=46&Itemid=53&lang=en.
8 For the text of the Decree, see "Decree on Associations," Prime Minister's Office of Lao People's Democratic Republic, April 29, 2009, http://www.iccsl.org/pubs/Lao_PDR_Decree_Law_on_Associations.pdf.
9 Foreign NGOs play an important role in Laos, but most are careful not to be too critical of the government. At last count 66 foreign NGOs were operating in Laos; see http://www.directoryofngos.org/pub/ngoindex2.php for listing. The decree permitting foreign NGOs to operate in Laos can be found at http://www.mofa.gov.la/decrees/DecreeOnNGO.htm. See also "A Study of NGOs-Lao People's Democratic Republic," Asian Development Bank, 1999, http://www.adb.org/NGOs/docs/NGOLaoPDR.pdf, accessed August 18, 2011.
10 "Press Freedom Index 2009," Reporters Without Borders, http://en.rsf.org/press-freedom-index-2009,1001.html, accessed April 26, 2011.
11 Quoted in http://www.rsf.org/country-50.php3?id_mot=577. For Lao Penal Code, Preliminary Provisions, see http://www.apwld.org/pdf/lao_penalcode1989.pdf.
12 "Asia Marketing Research, Internet Usage, Population Statistics and Facebook Information," Internet World Stats-Usage and Population Statistics, http://www.internetworldstats.com/asia.htm#la, accessed August 11, 2011.
13 Accessible at Lao People's Democratic Republic, Penal Code: Preliminary Provisions, November 23, 1989, http://www.apwld.org/pdf/lao_penalcode1989.pdf.
14 "Laos: Peaceful protestors must be released immediately," Amnesty International, December 7, 2009, http://www.amnesty.org/en/library/info/ASA26/004/2009/en; "Corruption High in Laos As SEA Games Approach in Vientiane," Online PR News, November 18, 2009, http://www.onlineprnews.com/news/11963-1258560873-corruption-high-in-laos-as-sea-games-approach-in-vientiane.html.
15 Laos is not a police state. The authorities do not attempt to prevent Lao citizens from complaining to each other about the government in private, or even to foreigners.
16 "Lao People's Democratic Republic: Submission to the UN Universal Periodic Review, Eighth session of the UPR Working Group of the Human Rights Council," May 2010, http://www.amnesty.org/en/library/info/ASA26/003/2009/en.
17 Laos has so far failed to ratify the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment.
18 Some did, however, ask for resettlement. See "Old wars never die: The unhappy fate of the Hmong," Economist, July 15, 2010, http://www.economist.com/node/16592276?story_id=16592276&fsrc=rss.
19 In 2007 Gen. Vang Pao was charged with leading a conspiracy to overthrow the government of the Lao PDR. See Tim Weiner, "Gen. Vang Pao's Last War, New York Times Magazine, May 11, 2008, http://www.nytimes.com/2008/05/11/magazine/11pao-t.html.
20 See, for example, Olivier Evrard and Yves Goudineau, "Planned Resettlement, Unexpected Migrations and Cultural Trauma in Laos," Development and Change 35, no. 5 (2004): 937-62, http://laos.efeo.fr/IMG/pdf/EFEO_Resettlement_evrard_goudineau.pdf.
21 There are approximately 45,000 Catholics in Laos and roughly 100,000 Protestants ("Laos: International Religious Freedom Report 2007," U.S. State Department-Bureau of Democracy, Human Rights, and Labor, http://www.state.gov/g/drl/rls/irf/2007/90142.htm, accessed May 2, 2011). In 2007, the first Lao Catholic priest in 50 years was ordained ("More than 3,000 attend the ordination of a Laotian Oblate," AsiaNews.it, January 10, 2008, http://www.asianews.eu/news-en/More-than-3,000-attend-the-ordination-of-a-Laotian-Oblate-11214.html), followed by two more in 2008 and 2009. By contrast, restrictions on Protestants, including forced renunciations of faith, led the U.S. Commission on International Religious Freedom to return Laos to its watch list in 2009 (after dropping it in 2005). See "Annual Report 2010," United States Commission on International Religious Freedom, May 2010, http://www.uscirf.gov/images/ar2010/laos2010.pdf.
22 Under Article 9 of the constitution, all acts "creating divisions between religions and classes or people" are banned. So on these grounds requests for permission to proselytize, required under the 2002 decree that permits such proselytizing, can be routinely rejected.
23 For a useful report on the religious demography of the Lao PDR, see "International Religious Freedom Report 2009," U.S. Department of State-Bureau of Democracy, Human Rights, and Labor, October 26, 2009, http://www.state.gov/g/drl/rls/irf/2009/127276.htm.
24 United Nations Secretariat of the Economic and Social Commission for Asia and the Pacific (UNESCAP), Disability at a Glance: A Profile of 28 Countries and Areas in Asia and the Pacific (Bangkok: UNESCAP, 2006), http://www.unescap.org/esid/psis/disability/publications/glance/disability%20at%20a%20glance.pdf. If this estimate is correct, as many as 400,000 people in Laos suffer from some form of disability.
25 Japan International Cooperation Agency, Country Profile on Disability: Lao People's Democratic Republic (Tokyo: Japan International Cooperation Agency, 2002), http://www.jica.go.jp/english/global/dis/pdf/lao_eng.pdf.
26 For the text of the law passed by the Lao National Assembly, see "Decree of the President of the Lao People's Democratic Republic On the Promulgation of the Law on Development and Protection of Women," November 15, 2004, http://www.na.gov.la/docs/eng/laws/soc_cult/Development%20and%20Protection%20of%20Women%20%282004%29%20Eng.pdf.
27 Lao Women's Union-Gender Resource Information and Development Centre (GRID), Lao PDR Gender Profile (GRID, 2005), http://siteresources.worldbank.org/INTLAOPRD/Resources/Lao-Gender-Report-2005.pdf.
28 Laos Penal Code (2005 Update), Chapter 6: Breach of Marital and Family Relationships and of Customs, http://www.protectionproject.org/wp-content/uploads/2010/09/Laos_Penal-Code-TiP_2005.pdf, accessed August 18, 2011.
29 See, for example, the program outlined in "Rights-Link Lao: Rights, Land, Information and Knowledge in Laos," Village Focus International, January 13, 2007, http://www.villagefocus.org/programs/environment/RightsLINK%20Lao%20Program%20Concept.pdf. The Asia Foundation is one organization active in this area. See "The Asia Foundation-Projects," The Asia Foundation, http://asiafoundation.org/project/projectsearch.php?country=|laos&programLimit=11&year=, accessed April 26, 2011.
30 Somsack Pongkao, "NA questions court sentences," Vientiane Times, June 23, 2010, http://laovoices.com/2010/06/23/na-questions-court-sentences/.
31 "Lao People's Democratic Republic: Submission to the UN Universal Periodic Review, Eighth session of the UPR Working Group of the Human Rights Council," May 2010.
32 See Amended Land Law (2003) at "Decree of the President of the Lao People's Democratic Republic: On the Promulgation of the Amended Land Law," November 5, 2003, http://www.la.emb-japan.go.jp/jp/laos/Law_on_Land_&_Decree.pdf. Some land was distributed to villages under the Land and Forest Allocation Program, in accordance with the 1997 Land Law. See http://sunsite.nus.edu.sg/apcel/dbase/laos/primary/laalnd.html.
33 A good study of the issues involved is Cor. H. Hanssen, "Lao Land Concessions, Development for the People?," September 2007, http://www.recoftc.org/site/fileadmin/docs/Events/RRI_Conference/Proceedings/Paper_20_Hanssen.pdf.
34 See also Beaumont Smith, "Golf and the great Lao land grab," Asia Times Online, January 21, 2010, http://www.atimes.com/atimes/Southeast_Asia/LA21Ae01.html. No one knows how much land has been leased to foreigners, but estimates go as high as 15% of the total land area, according to Brian McCartan: "Farmers forgotten in oil-for-food deals," Asia Times Online, July 31, 2009, http://www.atimes.com/atimes/Southeast_Asia/KG31Ae04.html.
35 Martin Stuart-Fox, A History of Laos (Cambridge: Cambridge University Press, 1997), 188.
36 The text is available at "Decree of the President of the Lao People's Democratic Republic: On the Promulgation of the Law on Anti-Corruption," May 25, 2005, http://www.mfa.gov.sg/vientiane/Laws/Anti%20Corruption%20Law%20&%20Decree%20FINAL%2014-03-06.pdf.
37 Transparency International ranks Laos at 158 out of the 180 countries it surveyed in 2009: "Corruption Perceptions Index 2009," Transparency International, http://www.transparency.org/policy_research/surveys_indices/cpi/2009/cpi_2009_table, accessed August 16, 2010.
38 According to a senior official from the Supreme Public Prosecutor's Office. See UNAFEI, the Office of the Attorney General of Thailand, and the UNODC Regional Centre for East Asia and the Pacific, CorruptionControl in Public Procurement (Tokyo: December 2008), http://www.unafei.or.jp/english/pdf/2nd_Regional_Seminar.pdf.
39 For example, Sisavath Keobounphanh was dropped from the Politburo at the Fifth Party Congress in March 1991 and demoted to 15th position on the LPRP Central Committee. No reason was given, but popular rumor focused on corruption. Yet at the Sixth Party Congress in March 1996, Sisavath regained his place in the Politburo and was appointed vice-president of the LPDR. In the government reshuffle of 1998, which saw Khamtay Siphandone become state president, Sisavath took his place as prime minister.
40 See Martin Stuart-Fox, "The Political Culture of Corruption in the Lao PDR," Asian Studies Review 30, no. 1 (March 2006): 59-76; see also Patrick Keuleers, Corruption in the Lao PDR: Underlying causes and key issues for consideration (Bangkok: United Nations Development Programme [UNDP], March 2004).
41 Lao People's Democratic Republic, Law on the Promotion of Foreign Investment, October 22, 2004, http://www.invest.laopdr.org/investlaw04.pdf.
42 See "Banking" in Martin Stuart-Fox, Historical Dictionary of Laos, 3rd edition. (Lanham: Scarecrow Press, 2008).
43 Martin Stuart-Fox, "Laos: The Chinese Connection." Daljit Singh, ed. Southeast Asian Affairs 2009. Singapore: Institute of Southeast Asian Studies, 2009, 141-169.