Sunday, August 20, 2017

Teacher takes fight to Supreme Court

The Union Supreme Court is expected to hear arguments this week in a case that will examine whether a law used by the Ministry of Education to force a university professor to resign is unconstitutional.

Daw Kyi Htay at her residence in Yangon on April 24. (Kaung Htet/The Myanmar Times)Daw Kyi Htay at her residence in Yangon on April 24. (Kaung Htet/The Myanmar Times)

The ministry dismissed Daw Kyi Htay, a professor and head of the Department of Economics at Yangon Distance University, on March 29, 2013, under section 41 of the Civil Servants Law for allegedly having poor relations with her colleagues and students.

In December she submitted an appeal to the Union Supreme Court. On January 23, the Supreme Court agreed to accept the case, Daw Kyi Htay told The Myanmar Times last week.

“The Ministry of Education said in a statement it dismissed me under section 41 ... but I have not made any mistake. That’s why I am defending myself and appealing to the Supreme Court to annul the dismissal letter,” she said.

Her lawyer, U Mg Mg Soe, said he will argue that the section, which allows the government to fire civil servants without conducting an enquiry, is unconstitutional.

The case will be heard by Chief Justice U Tun Tun Oo and two judges, with the Attorney General’s Office acting on behalf of the Ministry of Education. U Mg Mg Soe said a decision is then expected within a month.

It remains unclear whether there were other reasons behind Daw Kyi Htay’s sacking. One teacher from Mandalay University, who asked not to be named, questioned how a distance education professor could have bad relations with students given the limited face-to-face contact.

While section 40 of the law, which was introduced by U Thein Sein’s government, allows civil servants to be dismissed following a preliminary enquiry and department enquiry, section 41 gives ministries the right to fire staff without an enquiry. Before the law was enacted, the government generally conducted an enquiry before dismissing staff, and teachers’ associations argue that the firing of Daw Kyi Htay has set a dangerous precedent.

Shortly after her dismissal, university teachers associations from Yangon, Mandalay and other cities issued a joint statement in which they said the ministry’s dismissal of Daw Kyi Htay violated chapter eight of the 2008 constitution - the “fundamental rights and duties of the citizens” - particularly section 375, which states that “[a]n accused shall have the right of defence in accord with the law”. The statement called for the case to be resolved “in line with the law”.

However, the ministry said in a statement in response that it had acted in accordance with the law.

During the seventh session of parliament in 2013, then-Minister for Education U Mya Aye, who has since passed away, confirmed to parliament that Daw Kyi Htay had been forced to resign, with full pension entitlements, and that no department inquiry had been conducted prior to her dismissal. He made the comments in response to a question from Pyithu Hluttaw representative U Thein Nyunt.

U Thein Nyunt said last week that he was not satisfied with the minister’s response but did not want to comment while the case is in progress.

Legal affairs writer Thaw Nay Zaw said the Supreme Court’s impending decision would set an important precedent for how the law is used against civil servants who are considered troublesome. He said that while some are fired, others are demoted or transferred to remote areas.

“This law is really controversial. Section 40 states that action can only be taken against government staff based on a complaint after seeking permission from the judiciary,” he said.

Section 41, however, enables the government to dismiss staff without an enquiry or any oversight.

“There is no clear definition for how the section can be used. The Ministry of Education said Daw Kyi Htay made problems with the students and also the departmental staff. But I think there are also problems in this law,” he said.

Daw Kyi Htay is not the only teacher to have been dismissed by the ministry in controversial circumstances.

In August 2013, Nay Pyi Taw teacher Daw Soe Soe Khaing was sacked for both taking leave and travelling to Yangon without permission from her superiors. Many observers noted that she had been fired after visiting Yangon to attend an event on August 8 to commemorate the 25th anniversary of the 1988 uprising, suggesting that the decision was based on her political activities rather than violation of government policy.

One teacher from the Mandalay University Teachers’ Association said that she is careful not to give her superiors any opportunity to punish her indirectly for her involvement in the association by citing poor attendance or policy violations.

“I always make sure my attendance is very good and if I take leave or travel I always do so with permission,” she said.