Burma: Election Fundamentally Flawed

Burma's parliamentary election slated for November 8, 2015, is fundamentally flawed, depriving Burmese of their right to freely elect their government, Human Rights Watch said today. The electoral process is undermined by systematic and structural problems including the lack of an independent election commission, ruling party dominance of state media, the reservation of 25 percent of seats for the military, discriminatory voter registration laws, and mass disenfranchisement of voters in some parts of the country.

"Long lines of voters on November 8 won't make these fundamentally flawed elections free and fair," said Brad Adams, Asia director. "Burma's parliamentary election is the key test of the military-backed government's commitment to reforms and to building a democratic state. This election, however, suffers from critical flaws, such as a biased election commission, a ruling party-dominated state media, and laws and policies preventing Rohingya and others from voting and standing as candidates."

The election will be Burma's first contested national polls since 1990, when the military annulled an overwhelming victory by the opposition National League for Democracy (NLD).

Many internationally recognized elements for a free and fair election are missing from Burma's election process as detailed below. International standards include the rights to freedom of expression, association, assembly, and movement; candidates and voters participating in an environment free from violence, threats and intimidation; universal and equal suffrage; the right to stand for election; the right to vote; the right to a secret ballot; and freedom from discrimination. Enforcement of these rights requires an election administration that acts in an effective, impartial, independent, and accountable manner; equal access for candidates and political parties to state resources; equal access for candidates and political parties to unbiased state media; and an independent and impartial mechanism to resolve complaints and disputes.

One key concern is the lack of independence and impartiality of the Union Election Commission (UEC), both at the national and local levels. Chairman U Tin Aye, a former army general and member of parliament from the ruling Union Solidarity and Development Party (USDP) who stepped down immediately before taking the position of UEC chairman, has expressed views demonstrating a lack of impartiality. In June 2015, he said, "As a chairman, I am not supposed to have attachment to the party…. I have an attachment, but I don't put it at the forefront of my mind…. I want the USDP to win, but to win fairly, not by cheating."

In April, he defended the constitutional provision guaranteeing 25 percent of parliamentary seats to serving military officers, claiming the quota was needed to avert a future coup. While promising that the 2015 elections would be free and fair, he said they would be conducted in "disciplined democracy style," using rhetoric closely associated with past Burmese military governments. On March 27, during the annual Armed Forces Day parade in the capital, Naypyidaw, Tin Aye wore his military uniform during the ceremony, saying: "I would give up my life to wear my uniform. I wear it because I want to. That's why I wear it even if I have to quit [the UEC] because of that. But there is no law saying I should resign for wearing [my] uniform."

The election procedures also lack appropriate mechanisms for resolving complaints. Complaints will be brought before ad hoc tribunals set up under the UEC, with a panel of three arbiters comprised of election commissioners. But in violation of international norms, complainants can only appeal a tribunal's final decision to the UEC, whose ruling is final and made without judicial oversight.

The counting of ballots at the village level is also a matter of concern. Counting at the village level instead of mixing ballots with other villages and counting at the district or township level could lead to threats and retaliation against specific villages by the authorities on the basis of their vote.

"The sight of mass campaign rallies is a positive sign, but they don't make up for an electoral system that systematically favors one party over others," Adams said. "The system lacks an independent and impartial process to resolve complaints and major controversies once the voting has ended."

Under Burma's 2008 constitution, promulgated by the Burmese military after a sham referendum held to ensure the protection of its interests, only 75 percent of seats in Burma's parliament are up for election, while 25 percent of seats in both the upper and lower houses are reserved for serving military appointees. The military created and remains allied with the ruling USDP, meaning any opposition coalition must win over two-thirds of the remaining seats to form a majority in the parliament. In contrast, the USDP needs to win just over one-third of the seats to obtain an effective majority.

The constitution also dictates that the president, who will be elected in 2016 by the parliament established by the November 8 elections, cannot have a spouse or children possessing foreign citizenship, a provision aimed at opposition leader Aung San Suu Kyi, whose two sons hold foreign passports.

Even if Burmese opposition parties win a parliamentary majority in the election, they will be unable to amend the constitution without votes from among the 25 percent of MPs appointed by the military, as the constitution requires a 75 percent vote to amend the charter. A recent effort led by opposition party MPs to pass a constitutional amendment to reduce the threshold to 70 per cent, thereby removing the military's veto, was voted down.

The constitution also includes provisions that allow the military to dismiss parliament in the event of a "national emergency."

"An election can't be considered fair if 25 percent of the seats are handed to the military - and the party it supports - before a single vote is even cast," Adams said. "Just because Burma's political parties have no choice but to play against a stacked deck doesn't mean the deck isn't stacked."

Lack of Independence and Impartiality of the Union Election Commission

The UEC lacks independence and has demonstrated a pro-USDP and military bias. As discussed above, the UEC chairman, U Tin Aye, is a former lieutenant-general and USDP member of parliament, who has defended the military in an inappropriate way for a supposedly impartial official.

The UEC maintains an exceptional level of control over all election matters. Its operations are not subject to supervision by the judiciary or parliament. Its broad mandate, encompassing executive, judicial, and legislative functions, is defined in the 2008 constitution: "To monitor and decide the fate of political parties, arrange or postpone or cancel election schedules, hold elections, judge election-related cases, and investigate members of parliament if just one percent of their constituents complain and fire them if allegations are found true." Article 402 of the constitution further enshrines its unchecked authority: "The resolution and functions made by the Union Election Commission on the following matters shall be final and conclusive: (a) election functions; (b) appeals and revisions relating to the resolutions and orders of the election tribunals; (c) matters taken under the law relating to political party."

As described in a Carter Center monitoring report, "In all six states and regions visited, political parties and civil society expressed concern that sub-commissions might not act independently if put under pressure by local government officials."

A proposal from opposition parties calling for a three to five year interval between working for a political party and serving on the commission was rejected, citing the UEC's limited legislative scope.

The majority of commissioners are former military generals. The president, responsible for all UEC appointments without parliamentary oversight, has the authority to dismiss commissioners for various reasons including "misconduct," potentially silencing commissioners who might adopt positions contrary to the military or the government.

On August 29, 2015, the UEC announced a ban on any political campaign content that disrespects the military or the 2008 constitution in the official state media. In May 2014, in response to comments that Aung San Suu Kyi made at a rally calling for amending the military's constitutional veto power, the UEC threatened to reject the NLD's registration for the 2015 elections, claiming that challenging the military to prove its willingness to entertain constitutional reform violated the political party law.

On August 3, 2015, the UEC issued restrictions on election day coverage by journalists, limiting them to being accredited to one township, a regulation that was later extended to the district level after a complaint by the Interim Press Council.

Voter Disenfranchisement

The Burmese government has taken several steps to disenfranchise Rohingya Muslims and other religious and ethnic minorities in the lead-up to the election. Despite lack of citizenship, many Rohingya were allowed to participate in Burma's 2010 and 2012 elections. In February 2015, however, the government announced that temporary registration certificates ("white cards") provided to many minorities as provisional citizenship documents would expire in March, in doing so revoking their voter eligibility. The decision was aimed at the Rohingya and disenfranchised approximately 700,000 Rohingya, as well as tens of thousands of ethnic Chinese and Indians.

Displaced people and migrant workers also face a high risk of being denied access to vote. Internal migrants are required to provide certification that verifies their current residence for a minimum of 180 days, reinforcing their vulnerability to exploitation and intimidation by local authorities. Years of armed conflict and violence against religious minorities have led to an estimated 660,000 displaced persons nationwide, making the effects of this countrywide disenfranchisement severe. In addition, Burmese living abroad - refugees, migrant workers, and citizens-in-exile - were given limited access to advance voter registration. Only about 19,000 registered to vote absentee before the deadline, out of an estimated two to five million who live overseas.

Candidate Rejections

The UEC rejected a total of 88 candidates who submitted bids to run, citing election laws that bar candidates based on citizenship. One-third of the rejected candidates were Rohingya applicants from Arakan State, including several candidates who had run in prior elections without issue. Burma's discriminatory citizenship law effectively denies most Rohingya citizenship, even though many of their families have lived in Burma for generations.

Problems with Electoral Rolls

While the UEC has made efforts to improve the credibility of its election management, significant problems remain. Despite reaching the end of the voter roll review process, the lists continue to be plagued by numerous inaccuracies with missing and incorrect personal data, in spite of several million corrections to the digitized list being made so far. The intended release date of the final lists, set to take place on November 2, was postponed as officials attempt to integrate mass changes with limited office and staff resources.

Limitations on Election Observation

Election observers planning to monitor polls are challenged by limits on resources and training. Civil society monitors have been active only one year and will cover less than one-third of all townships. In rural areas, local military officials or leaders with military ties may have the ability to hold sway over how villagers vote, making it possible that independent and secret voting will be imperiled in parts of the country falling outside of national or international observation.

Ruling Party Dominance of State Media

Despite a flourishing and generally open print media sector in Burma since 2012, the government has used state media, including newspapers such as Myanmar Alin, New Light of Myanmar, and Kyemon; state television stations including the military-controlled TV station Myawaddy; and state radio to rigidly maintain government lines and promote internal candidates. In a media monitoring report of the election period, the Myanmar Institute for Democracy found that the state-owned sources have failed to present balanced or fair election coverage, with an absence of critical or independent viewpoints. State media has been used as a mouthpiece for updates on USDP projects and achievements, as well as a forum for positive coverage of the president, military, and USDP candidates. In government-funded newspapers, 96 percent of USDP coverage was positive in tone (3 percent neutral, 1 percent negative), while any coverage of opposition parties, including the NLD, was "very marginal."

Lack of Independent and Impartial Complaints Mechanisms

For pre-election complaints, plans to establish mediation committees at the state/region, district, and township levels were carried out in some locations, and state-level committees were involved in the resolution of disputes in Kachin and Arakan States.

However, overall the UEC has failed to develop appropriate procedures for handling complaints during the electoral process. In May, the development of election tribunals to handle post-election complaints was announced. The ad hoc tribunals will be set up under the purview of the UEC, with a panel of three arbiters comprised of election commissioners. Complainants can only appeal the tribunal's final decision to the UEC, whose ruling is final and made without judicial oversight.