Countries at the Crossroads 2007 - Laos
|Publication Date||25 September 2007|
|Cite as||Freedom House, Countries at the Crossroads 2007 - Laos, 25 September 2007, available at: http://www.refworld.org/docid/47386926c.html [accessed 10 March 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)
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 institutions of government of the new regime were modeled on those of the former Soviet Union. Today the LPDR is 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 contemporary Laos – a country whose communist leaders at the same time portray themselves as good Buddhists – reflects its position on this fault line.
During its first 10 years in power, the LPRP pursued orthodox socialist policies: it nationalized industry and cooperativized agriculture. However, 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 their peasant owners, state-owned industries were privatized (except for a few designated as strategic), the economy was opened up to foreign capital, and development aid was welcomed from any country prepared to give it. Over this period 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. Since 2000 investment has again picked up – mainly in tourism, hydropower, and mining – and the economic outlook is relatively rosy, with projected GDP for 2007 estimated at 7.1 percent.1
Over all this time the LPRP has never 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 controls the National Assembly, the government, and 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 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 ambitious 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 for any individual and his or her family – and for such party connections, citizens in communist Laos give thanks to the Buddha.
Accountability and Public Voice – 1.16
Free and fair electoral laws and elections: 0.50
Effective and accountable government: 1.75
Civic engagement and civic monitoring: 1.00
Media independence and freedom of expression: 1.38
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 National Assembly and promulgated by presidential decree, but only after first being endorsed by the Politburo. In fact, the president of the Politburo was the same 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 rights of the multiethnic Lao people are exercised and ensured by the political system (as set out in the constitution) "with the Lao People's Revolutionary Party as its leading nucleus."2 Article 5 stipulates that the parliament (the National Assembly) 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, while 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 one considers that all but one of the 28 ministers comprising the Cabinet, all but two of 115 National Assembly deputies, 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 of the Lao PDR, 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 any significant reform in the direction of democratic processes can even be introduced.
Because the ruling party is all-powerful in Laos, it is necessary to understand how it works before turning to the National Assembly or the government. The LPRP has a typically Leninist cellular structure. Party branches exist at all administrative levels from the village through the district and province to the Central Committee of the party, which is elected by party congresses held every five years. 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. 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 supporters within the party.
Patron-client relationships include, first and foremost, members of the client's extended family. They may also be based upon home region (still very important in Laos), school class, party connections, and common business interests. At the higher levels, patron-client networks may be cemented by intermarriage between families. Patronage is provided in a variety of ways (see below), for which gratitude is shown in monetary form. Political advantage is gained by placing members of one's network in key positions (in the party, the government, or the bureaucracy). Thus, much of the substance of politics is about whose clients get what; for agreement, trade-offs are essential. How all this works is highly secret, though rumors abound in the lead-up to important political events. Patronage politics constitutes the core of Lao political culture.
The most significant events in the Lao political calendar are the five-yearly LPRP congresses, the last of which, the eighth, took place in March 2006. It was expected, and hoped, that several aging generals who had dominated the Politburo for the last decade would retire. But the only retirement was of General Khamtay Siphandone as party (and state) president. He made way for Lieutenant-General Choummaly Sayasone to take his place (in both offices), but all the other old generals remained. As one had died in office, two places became vacant in the 11-member Politburo. They went to the long-serving former foreign minister and to the first woman, and the first Hmong, to be elected to the Politburo. The only hopeful sign was that 19 out of the 55 members of the Party Central Committee were new faces. They are not likely to endorse any democratic reform, but being younger and better educated they may be persuaded to back some further economic or legal reforms.
Within weeks of the congress, elections were held for the National Assembly; these occurred 10 months early in order to bring them into line with the congress and allow a new assembly to endorse a new government. All NA candidates require endorsement by the party-controlled Lao Front for National Construction, whose structure parallels that of the party. A handful of independent candidates were permitted to stand, two of whom were elected. The other 113 are members of the LPRP, including a few senior party officials slated to become key figures in the new government.
The elections were relatively fair, in the sense that individual candidates could try to convince people to vote for them, and voters were not coerced into voting for one candidate or another out of the slate of candidates presented in each province. From the party's point of view it did not much matter who got in, as all party members would toe the party line; however, preferred candidates headed each provincial list, which was enough to ensure their election. In the event, over 60 percent of those elected comprised new faces, though there was little prospect that the new assembly would be any less politically accommodating than previous ones. Its first acts were to put in place the state office holders (president and vice-president) and endorse the government already decided upon by the Party Central Committee.
Most ministers in the new government are not members of the National Assembly and are not answerable to it. In reality, no matter what the constitution says, the government is answerable only to the LPRP Politburo, of which the new prime minister, Bouasone Bouphavanh, and his four deputy prime ministers are all members. Another 13 ministers are members of the Party Central Committee. Again, however, the dozen new ministers tended to be younger and better educated than those they replaced and therefore, perhaps, more open to arguments that improved governance is necessary to prevent Laos from falling further behind its ASEAN partners.
What is unlikely to change is the prevailing political culture, which encourages political intervention in staffing and promotion issues in the civil service, in cases of law, in business dealings, even in school enrollments and health care. Nor will there be any encouragement of civic or nongovernmental organizations (NGOs) free of political control. No criticism of the party is permitted, and no public discussion of party policy takes place either. All is decided by the ruling elite.
As a result, civil society hardly exists. Foreign NGOs are allowed to function only in accordance with government controls,3 and there is no such thing as a Lao NGO. Organizations such as the Lao Bar Association, established by government decree in 1996,4 or the Lao National Chamber of Commerce and Industry, established by a statute passed by the National Assembly in December 2001, are semi-governmental and not independent.5 The only popular associations permitted in Laos are organizing committees for religious functions, peasant producer and water-user associations, school associations, and sporting clubs. None are remotely political. Even attempts to set up cultural and historical associations have failed to receive permission from the Ministry of Information and Culture (MIC), presumably because they were potentially political.
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. In fact, most Lao journalists are party members attached to the MIC. There was an understandable note of weariness, therefore, in the 2006 report on Laos by Reporters Without Borders, which began: "Nothing changes in Laos."6 Foreign correspondents are treated as spies and prevented as much as possible from making contact with any person or group who might be critical of the government or the party. Two Hmong who assisted foreign journalists in contacting Hmong dissidents still holding out against the Lao People's Army are serving long prison sentences for "obstructing justice" and "possession of arms."7
In an open letter to President Choummaly Sayasone soon after his appointment to office, Reporters Without Borders called for "radical reforms" that would both establish an independent press in Laos and protect journalists. It wants these provisions included in the media law that the government has been in the process of drafting since 2001 but which has yet to come before the National Assembly. The letter also called for a presidential pardon for the two Hmong and for a Lao author arrested in 1999 for prodemocracy activities and imprisoned in a secret location.8 There is no likelihood that any of these requests will be met. What is more likely is that "slandering the State, distorting party and state policies, inciting disorder, or propagating information or opinions that weaken the State" will continue to draw a penalty of imprisonment for journalists under the Lao penal code.9
Use of the internet is slowly increasing in urban areas, stimulated by the demands of foreign backpackers. Estimates for 2006 were that 25,000 Lao were using the internet, with connections entirely confined to urban areas.10 In 2002, the National Internet Control 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. Satellite TV dishes are more readily available than internet connections, on payment of a license fee, but most Lao confine their viewing to Thai soap operas.
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 MIC. 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.
In conclusion, the Lao PDR remains entirely under the control of the LPRP, which permits no form of political opposition. Civil society is virtually nonexistent, and the media is tightly controlled by the ruling party.
- 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, to allow the organization of other political parties and their participation in National Assembly elections.
- The National Assembly and its Standing Committee should undertake the full range of activities set out in the 2003 constitution, in particular the new articles permitting questioning of government ministers (Article 63) and the drafting of laws by the new National Assembly Standing Committee for presentation to and debate by the National Assembly (Article 59).
- The Lao authorities should eliminate political interference in the civil service and introduce a competitive, merit-based system of appointments and promotions.
- The Lao authorities should permit the establishment of independent professional and cultural organizations and associations and encourage the development of a vibrant civil society.
- The government should enact a media law that permits the establishment of independent media outlets, enshrines press freedom, and protects working journalists from politically motivated prosecution.
Civil Liberties – 2.39
Protection from state terror, unjustified imprisonment, and torture: 1.14
Gender equity: 3.25
Rights of ethnic, religious, and other distinct groups: 2.75
Freedom of conscience and belief: 3.00
Freedom of association and assembly: 1.80
Civil liberties for Lao citizens are set out under Chapter 4 of the 2003 amended constitution, which covers obligations as well as fundamental rights. Four of the 18 articles are new – 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 last is the most significant, for it provides some guarantee against arbitrary arrest and reinforces the slow evolution toward rule of law.
The constitution guarantees Lao citizens equality before the law, notably in terms of gender, ethnicity, and personal beliefs. A separate article endorses 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 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),11 the state effectively has the legal means to curtail any or all of these rights at any time. And it does so by the simple expedient of requiring permits for any media outlet, association, or public demonstration of any kind. As such permits are never issued, attempts to claim these constitutional rights are effectively denied.
Given this Catch-22 situation, it is hardly surprising that Lao citizens are most reluctant to test the extent of the rights they supposedly enjoy. The last time any form of 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 apparently sentenced in June 2001, though the trial and its outcome were never reported in the Lao press. Since then one student has died from mistreatment.12 The Lao authorities have refused officially to confirm any of this. Indeed, they claim not to know the whereabouts of two of the students (who may be known under alternative names.) The other two are in Vientiane's notorious Samkhe prison, where a number of political prisoners are held along with the worst criminal offenders.
Access to prisons in Laos is denied to human rights organizations, such as Amnesty International, but conditions are considered to be very poor. Amnesty has long accused the Lao government of using torture and other degrading treatment on prisoners, charges which the Lao authorities reject. Some idea of conditions can be gained from the experiences of Kay Danes, an Australian held with her husband for 11 months in 2001 on charges of embezzlement in relation to a failed business venture. They were incarcerated not in Samkhe, but in the Phonhong detention center for foreigners, which comes under the jurisdiction of the Ministry of Foreign Affairs. Other prisons are run by the Ministry of Security. If conditions are as bad in Phonhong as the torture and deprivation Kay Danes reported, one can only imagine what they are like in Samkhe prison.13
Political prisoners in particular may be held incommunicado for long periods, often without charges being brought. Prisoners who have completed their sentences may be released only if they have paid any costs incurred in prison. Families of prisoners with the right personal and political connections (and money) may provide additional food and medicines to inmates and even have their cases brought to the appeals court. Payment is always required by prison authorities for any service performed, even to act upon an order for release.
The usual Lao government response to concerns expressed about the lack of safeguards against mistreatment of citizens by the state, including unjustified imprisonment, is simply to deny that any such abuses take place. Therefore, the Lao authorities argue, there is no reason to define procedures to redress such nonexistent abuses. As a result, the only defense anyone has, in the face of a defective legal system, is through whatever influence can be brought to bear by means of personal and political networks and judicial bribery.
Several political prisoners known to be in Lao jails are Hmong. The Hmong insurgency dates back to the earliest years of the regime and had its roots as much in fear of reprisals as in political opposition. It has been largely kept alive through support from Hmong refugees outside Laos. After a quiescent period, a series of attacks on buses in 2003 was blamed on Hmong "bandits" and led to a crackdown 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. Since then small groups of mainly women and children have surrendered to Lao authorities, while others have fled to join more than 6,000 Hmong refugees still in Thailand who have been resisting both repatriation to Laos (under the auspices of the UNHCR) and resettlement in the United States.14
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 populations of 5.622 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, 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 provincial governors and members of the Central Committee, and in 2006 a Hmong woman (Pany Yathothu) was elected to the powerful Politburo. Two other Hmong are government ministers, one the minister of justice and the other an adviser to the prime minister.
Many Hmong have been resettled, along with other upland ethnic minorities, from hilltop villages, where they practiced slash-and-burn agriculture and grew opium poppies, to land where they can supposedly practice permanent agriculture and have better road access. There has been considerable criticism of this internal resettlement program,15 whose stated purpose is to preserve forest resources and improve government services, but whose actual effect is to threaten minority cultures. Resettlement is supposed to be voluntary, but coercion has been used at times. Promised government services have not materialized, and poverty has increased.
Other 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 in the Lao Front for National Construction (LFNC). Over the past few years, however, the LFNC has been losing political clout. 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. Indeed, 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,16 the majority of Protestants (most members of the Lao Evangelical Church) are from ethnic minorities (including Hmong and Khamu). But Christians are regarded with some suspicion because of their international links, and evangelization, though theoretically permitted by the 2002 decree on religious practice, is prohibited on the grounds that it might create social division.17 Some Christians have been arrested and reportedly forced to renounce their faith.18
Other religions have not been so targeted. There are small congregations of Baha'i and Muslims in Laos, but almost two-thirds of the population (including virtually all ethnic Lao) are Buddhists. The remainder are classed as animists, whose religious practices are accepted as part of their culture.19
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 the embrace of Lao nationalism. There is reason to believe that the party took a hand in deciding who became head of the Lao monastic order, but as Buddhism in Laos becomes increasingly free of direct party control (provided it remains apolitical), it may refrain from direct intervention in the future.
Another minority is the officially estimated 1 percent of the total population who have some form of disability.20 Of these, a declining proportion suffered war injuries (8 percent). In fact, over 55 percent were aged between 6 and 18 years and so were born after the war ended. Their disabilities were overwhelmingly congenital (36 percent) or due to illness (41 percent). Only 1 percent were disabled by encounters with unexploded ordnance, but these amounted to 65 percent of all amputees, plus 13 percent of all cases of paralysis. The total number of UXO victims was 5,094.21
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. A national strategy for people with disabilities is supposedly in place, 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.
The Lao government has been more active in protecting women and in demonstrating its commitment to gender equality. The 2004 Law on the Development and Protection of Women enshrines the leading role of the Lao Women's Union (LWU) in promoting both goals.22 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.23 This comprehensive report brings together all the literature on women in Laos and sets out an enabling legal environment for gender equality, the role of women in the economy, women's health and education, women's special vulnerabilities, and women's involvement in decision making. It will provide the basis for all future policies with respect to gender.
While a good first step, there is a long way to go. The Profile recommends a series of practical measures to be adopted, including programs to enhance gender awareness among senior (male) officials and to promote socioeconomic development, especially among ethnic minority women. It also aims to increase the social status and political participation of women. According to the 2005 census, 31 percent of government employees are women, but they are disproportionately represented at the lower levels. Twenty-nine women were elected to the 2006 National Assembly (23 percent); two are government ministers (out of 28), and one 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.
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 been slow to act. In 2005, the government amended the penal code to include child trafficking and imposed penalties of 20 years' imprisonment.24 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 donors.
Workers' rights are supposedly protected and promoted by the Federation of Lao Trade Unions. However, this is an organization under close party control, whose purpose is rather to keep wages at levels that will attract foreign investment. Groups of workers are not free to form their own trade unions.
- The government should refine the penal code to limit the comprehensiveness of what constitutes anti-state activity.
- The government should permit citizens to exercise their freedoms as set out in the constitution and refrain from using penal provisions to punish them when they do so.
- The government should provide access to its prisons for international inspection and should investigate all prisoner complaints of abusive treatment.
- The government should establish mechanisms to ensure that its resettlement programs for ethnic minorities do not contravene their essential human rights.
- The government should allow access by human rights organizations and international NGOs to all former Hmong insurgents who surrender to the Lao authorities.
Rule of Law – 1.99
Independent judiciary: 1.80
Primacy of rule of law in civil and criminal matters: 1.17
Accountability of security forces and military to civilian authorities: 1.00
Protection of property rights: 3.00
Equal treatment under the law: 3.00
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. 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 National Assembly 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. They do receive some legal training, and there are foreign-assisted programs to 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 is not going to prosecute itself). 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.)
No 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. However, as the rural population is largely illiterate and ignorant of the law, they 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 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, comprising the president and vice-president, plus the presidents of the six NA commissions. In any case, application of the law seldom depends on the letter of the law and its proper interpretation. Three other factors influence judgments: payment of bribes; conformity with party policy; 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."
From the point of view of legal authorities, political intervention in sensitive cases may be a double-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, with failure carrying severe professional risk.
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 the case against them. There is no legal aid program, though the UNDP is assisting in establishing one. Finally, it should be noted that judgments in 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 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. 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.
Lao citizens do have property rights in relation to their dwellings and personal possessions. But land is another matter. Over the past decade a land titling project 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 land ends up in the hands of the wealthy and well-connected.
In rural areas, most farmland reverted after cooperativization to its original owners in the form of '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.25 All land not in agricultural use belongs to the state, including forest land traditionally used for slash-and-burn farming by ethnic minorities. Since 1996, a proportion of this land has been distributed to villages under the Land and Forest Allocation Program in the form of both individual and communal use rights.26 While the program provides some security of tenure, it also effectively limits access to land previously used for slash-and-burn farming or to gather forest products – a vital part of the economy of poor villagers.27 Areas of "protected forest" remaining in the hands of the state can be leased for a fee, either to villagers (if they can pay) or to loggers or large companies for plantation agriculture – to the benefit not of local villagers but of party officials.
This is not so say that incremental improvements are not being made in implementing the rule of law. A body of law is slowly being developed and applied in the courts. For it to be more broadly accepted, however, a rigorous separation of powers will be necessary between the judiciary and the party. Moreover, general acceptance and application of the rule of law will require a much better-educated population than exists at present. Conservatively, it will require another generation before the rule of law is widely accepted and applied in Laos – and even then law is unlikely to be free of patronage politics.
- The LPRP should penalize party members who are determined to have interfered in any way in legal processes.
- The government should devote more resources to educating the population, rural and urban, about new laws as they are promulgated and about relevant legal procedures.
- 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.
Anticorruption and Transparency – 1.64
Environment to protect against corruption: 1.80
Laws and ethical standards between private and public sectors: 1.75
Enforcement of anticorruption laws: 1.00
Governmental transparency: 2.00
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 derived from networks of obligation and loyalty given in return for protection and assistance in times of need; in other words, from 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, financial corruption began to increase. Some mid-level bureaucrats were charged with corruption and imprisoned in 1983-84,28 but this was partly political, and no high officials have been charged since, not even after the National Audit Office reported mismanagement and irregularities in the construction of irrigation and other infrastructure projects (in its 2003 report to the National Assembly).29 This compares with much more recent trials and convictions of high-ranking officials for corruption in both China and Vietnam. All that has happened by way of punishment of spectacularly corrupt high Lao party officials is that they have been quietly reprimanded, transferred, and/or demoted in the party ranking, which has not precluded their later return to powerful positions in government and the party.30
By the time Laos entered the 21st century, corruption had become deeply rooted in the political culture of the country.31 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 is limited to some two dozen 'strategic' state-owned enterprises (SOEs), including natural monopolies such as electricity generation and distribution and water, plus enterprises such as Air Lao and the state printer. Indirect involvement is pervasive, however, in the form of bureaucratic registration and regulation of all business ventures, which allows officials to demand payment for almost everything they do. Delays and corruption associated with foreign investment have been reduced, however, by streamlining procedures under the Planning and Investment Committee, presided over by a senior minister.
The passage of new laws has done little to help, as the problem of lax enforcement remains. In fact, in some cases the effect of new laws has actually been to increase corruption because more officials have to be paid not to apply them. For example, environmental protection laws have done little to protect the environment: they just require that rangers appointed to look after "protected areas" be paid off in addition to the usual provincial party officials.
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, which everyone needs to supplement their meager government incomes, and to which no conflict-of-interest rules apply. As no public official in Laos is required to reveal his or her personal assets, however, word-of-mouth and rumor 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. Their proceedings are wrapped in the secrecy that envelops everything the party does. The National Audit Office (established in 2001) is not politically independent: it reports to the Office of the Prime Minister, and any action taken on its findings requires a political decision. So great has been the financial mismanagement of some state-owned enterprises that oversight has been tightened by the Ministry of Finance. Also, the government is progressively publishing more information, in the form of policies, reports, and statistics (for example, the results of the 2005 national census), but nothing appears on the deliberations of the party. And there is no free media able even to speculate on what might be going on.
This lack of transparency extends from the party to the government to the bureaucracy. No one knows how decisions are made. Even relatively senior civil servants are reluctant to take decisions in their areas of competency, preferring to refer them up the hierarchy. When decisions are made, reasons tend not to be given. They are acted upon in the spirit of "democratic centralism"; that is, unquestioningly. This especially applies to the award of government contracts and other decisions with financial implications, such as tax rulings or exemptions.
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 National Assembly, but its provisions are seldom questioned, and it is always passed as presented, along with the financial statements of government ministries. Extra-budgetary expenditures escape any scrutiny, and military expenditures are completely opaque and not subjected to public audit.
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; allowing government officials not only to take credit, but also to recommend employees. So the system perpetuates itself, without checks and balances, but with indirect foreign support, which Western governments continue to provide, despite 'leakages', in preference to permitting Laos to slip entirely into China's widening orbit.
- The government should ensure that the provisions of all anticorruption legislation are fully implemented and that corrupt officials are prosecuted in the courts.
- Public finances should be made more transparent and debated more freely by the National Assembly.
- More information should be made available by the government, and the media should be permitted freely to discuss government policy and decisions.
- The press should be allowed to report freely on corrupt practices, and anonymity and protection should be provided for whistleblowers.
Martin Stuart-Fox is Emeritus Professor at the University of Queensland, Australia. He has written six books and more than fifty articles and book chapters on Lao politics and history.
1 According to the IMF. See http://www.imf.org/external/country/LAO/index.
2 Constitution of the Lao People's Democratic Republic, http://www.laoembassy.com/news/constitution/constitution.htm.
3 For a list of foreign NGOs in Laos, see http://www.directoryofngos.org/. The decree permitting 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 (Manila: Asian Development Bank [ADB], 1999), http://www.adb.org/NGOs/docs/NGOLaoPDR.pdf.
4 There are currently 56 members (as of 22 January 2006). See http://www.laobar.org/about_lba.html. This site, which includes a number of useful legal documents, was unavailable on 3 May 2007, but is to be re-established.
5 For a list of member associations and business groups of the Lao National Chamber of Commerce and Industry, see http://www.lncci.laotel.com/Page%20Associations%20and%20Groups.htm.
6 At http://www.rsf.org/country-50.php3?id_mot=577.
8 A copy of this letter can be found at http://www.rsf.org/print.php3?id_article=18109.
9 Quoted in ibid.
10 According to http://www.internetworldstats.com/stats3.htm
11 Accessible at http://www.apwld.org/pdf/lao_penalcode1989.pdf.
12 Annual Report – 2006 (London: Amnesty International [AI], 2006), http://web.amnesty.org/web/web.nsf/print/8CFC832FF2D820CB802571650031837C, states that this death was the result of torture.
13 Kay Danes, Nightmare in Laos (Bangkok: Maverick House, 2006); see also http://www.phaseloop.com/foreignprisoners/prison-phonthong.html.
14 See Annual Report – 2006 (AI); see also http://www.huntingtonnews.net/national/061221-kinchen-hmong.html, accessed 24 January 2007.
15 See, for example, Olivier Evrard and Yves Goudineau, "Planned Resettlement, Unexpected Migrations and Cultural Trauma in Laos," Development and Change 35, 5 (2004): 937-62.
16 There are 42,000 Catholics in Laos and a roughly similar number of Protestants. In Pakse recently, the first local priest in 50 years was ordained. See http://www.zenit.org/english/visualizza.phtml?sid=101595, accessed 25 January 2007.
17 This is another Catch-22 situation. Under Article 9 of the constitution, all acts "creating divisions between religions and classes or people" are banned. On these grounds requests for permission to proselytize, required under the 2002 decree that permits such proselytizing, are routinely rejected.
18 See Annual Report – 2006 (AI).
19 The Report on Religious Freedom – 2005 (Washington, D.C.: U.S. Department of State, 2005), http://www.state.gov/g/drl/rls/irf/2005/51517.htm, accessed 25 January 2007, includes a useful section on the religious demography of the Lao PDR.
20 This estimate is based on 1995 data, giving a figure of around 56,000. Country Profile on Disability: Lao People's Democratic Republic (Tokyo: Japan International Cooperation Agency, March 2002), http://www.jica.go.jp/english/global/dis/pdf/lao_eng.pdf, accessed 25 January 2007.
21 UXO continue to cause injuries, especially among children. The United States government has refused to accept responsibility for UXO remaining in Laos and has provided very little assistance to get rid of it.
22 The law was passed by the Lao National Assembly in November 2004. The March 2006 UNDP draft translation can be found at http://www.na.gov.la/eng/laws/wmn_law.pdf.
23 Accessible at http://siteresources.worldbank.org/INTLAOPRD/Resources/Lao-Gender-Report-2005.pdf.
24 See Trafficking in Persons Report (Washington, D.C.: U.S. Department of State, 2006), http://www.state.gov/g/tip/rls/tiprpt/2006/65989.htm.
25 See Amended Land Law (2003) at http://www.na.gov.la/eng/laws/econ/land_law.pdf
26 See the 1997 Land Law, http://sunsite.nus.edu.sg/apcel/dbase/laos/primary/laalnd.html.
27 See, for example, Yayoi Fujita and Khamla Phanvilay, "Land and Forest Allocation and Its Implication on Forest Management and Household Livelihoods," and Daovorn Thongphanh, "Does Decentralisation Meet the Needs of Local People? Implementing Land and Forestland Allocation in Two Local Communities, Lao PDR," (Oaxaca, Mexico: International Association for the Study of Common Property, Tenth Biennial Conference, papers, 9-13 August 2004), http://dlc.dlib.indiana.edu/, accessed 30 January 2007.
28 Martin Stuart-Fox, A History of Laos (Cambridge: Cambridge University Press, 1997), 188.
29 Rarely does the Lao press report on corruption. This report in Le Rénovateur, 9 October 2003, was in the context of an article on the National Assembly. On 27 November 2003, Le Rénovateur returned to the subject of corruption in a report on a two-day anti-corruption seminar by its editor, Khamphout Xayasomroth, entitled 'La corruption, cheval de bataille du Gouvernement'. More recently, in an opinion piece for the Vientiane Times entitled 'New hope for media freedom', Ekaphone Phouthonesy pointed to the role the press could play in combating corruption.
30 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.
31 See Martin Stuart-Fox, "The Political Culture of Corruption in the Lao PDR," Asian Studies Review 30, 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).