Burma’s election process flawed from start

Tuesday, 23 March 2010 15:58 Larry Jagan (Commentary)

Bangkok (Mizzima) - Even though Burma’s election laws are still being rolled out, many in the Burmese opposition movement abroad have already decided that the forthcoming elections will not be free or fair. But many inside the country seem to feel that although flawed, these elections may provide an opening to create some political space and encourage reforms.

“We do not have the luxury of missing this chance,” Dr Nay Win Maung, co-founder of the Rangoon-based NGO, EGRESS and a newspaper proprietor, said in the sidelines of a seminar on Burma at Chulalongkorn University. “We must accept this opportunity to claw some improvements out of the regime, even if it’s only an inch.”

During times of change and uncertainty, the Burmese military regime can be caught off guard and surprised by the turn of events, and for some activists like the academic and former student leader Aung Naing Oo, this election may be one of those times. He believes the opposition, including the ethnic groups, should seize the opportunities that it presents. “But make no mistake this election process is not about democracy, it is Than Shwe’s aim through these elections to civilianise the government, but not to hand over power to an elected civilian regime,” he said.

This is one of the few things that analysts inside Burma and foreign experts seem to agree on. “The military wants to civilianise itself -- as in 1974 -- through the election process, but hold onto power indefinitely, as has been evident since 1962 when Ne Win seized power,” Professor David Steinberg, a Burma expert at George Washington University told Mizzima.

In the meantime the National League for Democracy (NLD), which convincingly won the last elections in 1990 but was never allowed to take power, faces the tough choice of whether to re-register as a political party and contest the polls or boycott the elections altogether. Unlike 1990, when the party belatedly entered the fray, this time they would have to do so without their charismatic leader Aung San Suu Kyi, as under the new political parties’ law activists serving “prison sentences” are prohibited from being members of any party or running for office.

Last year Aung San Suu Kyi was convicted on charges of violating her house arrest when an American man swam uninvited to her lakeside home. She has spent more than 14 of the past 21 years in detention, and is currently serving 18-months under house arrest. Her lawyers say she is considering submitting a final appeal to the Supreme Court, but is yet to do so.

“The main aim of the junta’s election laws is clearly to emasculate the NLD and prevent their leader Daw Aung San Suu Kyi from taking any part in the forthcoming electoral process,” said the British Burma expert and biographer of the pro-democracy icon, Justin Wintle.

Of course the government media has been quick to dismiss this suggestion. “Some say the law is designed to ban a certain person from contesting election,” said a commentary, “Road Map to Democracy”, which ran in all the state-run newspapers earlier this week. “If it is intended for the said person, an article would have been referred to a specific crime so that the person will be banned from the election forever.”

Any convicted criminals are free to join political parties when they are released, unlike Burma’s first constitution which barred convicted persons from being members of parliament in the five years after their release, said the commentary.

“Aung San Suu Kyi remains a massive thorn in the junta’s side,” said the former British Ambassador to Rangoon, Martin Morland. “No matter what they try to do to silence and marginalise her, she remains the ‘elephant in the room’ constantly exuding sweet reason - even in the court-room,” he told Mizzima recently.

But the NLD will have to ditch her, at least temporarily, if they are to contest these elections. The party’s central executive committee meets early next week to decide what to do. Many top NLD members favour re-registering and fighting the polls. Many in the international community understand the difficult dilemma the opposition parties face.

“If they [the democratic opposition and Burma's ethnic group] participate in the elections they risk legitimising a process they know to be flawed. Boycott the elections and they risk further marginalisation and exclusion from the political process,” a junior foreign office minister, Ivan Lewis, told the British parliament earlier this year.

That is exactly what the NLD will have to decide. But many inside Burma continue to insist the elections are an opportunity that cannot be ignored.

“Darkness has already covered us,” said social researcher and former political prisoner, Khin Zaw Win. “We have already lost more than 20 years and the people will only suffer more if we miss this opportunity.”

“People don't like the current military government of Burma,” a leader of the newly formed Democratic Party, Thu Wai recently told journalists in Chiang Mai. “Now we have a chance to change it by voting in the forthcoming elections.”

“These laws lay down relatively fair conditions for the election,” he said. The registration fee for each party - 300,000 kyat (or $ 300) -- is comparatively cheap, and more crucially the fee for candidates to register to run in the elections is 500,000 ($ 500) far below what was being predicted. Many politicians preparing for the elections had feared it would be at least $ 2,000.

“The most important condition is that the counting will take place at the polling stations, and the result announced there,” said a Burmese political pundit, who cannot be identified as it is still against the law in the country to comment on the election.

The count, as in 1990, will also take place in front of local scrutineers as representatives of all candidates will be allowed to watch the count and make sure there are no irregularities. This means that it will be harder for the regime to manipulate the results, like in the 2008 referendum, according to many analysts inside Burma.

Burma does have a history of free elections. In 1960 and again in 1990, there was no rigging of the vote. Once ballots were cast their integrity was respected. But some analysts fear that this may not be the case this time round.

“The problem is that with the military command structure and social hierarchy in Burma, many of the lower ranks may assume that it is necessary to ensure compliance with what they believe the leadership wants and thus tamper with the process, even if there is no clear order from the top to ensure the desired results,” said Professor Steinberg.

Bu in the end though the regime seems to be counting on setting up the conditions before hand so that they don’t have to manipulate the votes after they have been cast. “The junta is trying to win this election in such a way that it doesn't have to resort to crude vote-rigging come polling day,” warned Mr Wintle.

“Compared to many other international examples, the electoral laws would not be judged as particularly unfair,” a western diplomat based in Rangoon told Mizzima on condition of annoymity. “But it’s the context that matters -- a heavily controlled constitution-drafting process, a constitution in favour of the military, a sham referendum result, and 20 years of determined deterrence to would-be political actors,” she said.

Within this context, it is not unexpected that most analysts, diplomats and observers are reluctant to give the regime the benefit of doubt. So much in practice may in fact depend on the group of individuals who have been selected by the junta to oversee the election - the new Election Commission.

“The Election Commission has, as in many democratic elections elsewhere, been given a large degree of authority,” said a western diplomat who covers Burma. “The difference here is that the authority they have is superficial -- their authority will be limited to issuing decisions made behind the scenes at a higher level.”

There is little known about the 17 members of the electoral commission who were recently appointed, except from the president Thein Soe. He was a Vice Chief Justice of Burma’s Supreme Court and former Military Judge Advocate General - very much a military man, though no longer actually in uniform. Among the other members are also former military officers, judges, professors and a retired ambassador. Academics, civil servants and the judiciary have not all been severely cowed under the repressive military regime so are unlikely to try to be independent and much more likely to follow the instructions of the junta leaders.

Since 1962, and particularly since 1988, no court judgement in Burma has gone against the military regime. So there is no reason to assume their behaviour will change now. The previous election commission actually dismissed Aung San Suu Kyi as the National League for Democracy’s Secretary General, but the party ignored the instruction and she carried on in that role - even during her long periods of house arrest.

Now if they want to contest the next elections, they will have to be vetted by the new election commissioners. “The commission shall invite and interrogate any persons and examine relevant documents of anyone wishing to stand for election before accepting or rejecting their nomination,” says the election by-laws issued by the commission last week. Thus giving them enormous control over who is allowed to stand for election.

“They will certainly closely scrutinize anyone that the regime objects to and find ways of disqualifying them,” said a senior member of the Burmese pro-democracy movement in Thailand, Zin Linn.

“General Than Shwe has given the Election Commission extraordinary powers,” said the Australian MP, Janelle Saffin - Burma expert and constitutional lawyer. “The Election Commission is judge, jury, and final arbiter, in most matters. And it can involve itself in the internal matters of political parties,” she told Mizzima.

“And worse of all there is no possible appeal to an independent court -- the Commissioners can in effect do what they like with impunity,” she concluded.

So even if Aung San Suu Kyi is prevented from taking part in the elections, this in itself will not make the elections unfair or not free. They would certainly not be inclusive or credible.

What the electoral laws reveal is that the regime is putting into place systems whereby they can effectively control the results - even without actually rigging the vote.

The Election Commission is going to be the problem - as they can effectively determine the result and claim to be doing it on quasi-legal grounds.

But that apart, many academic, liberals and political activists are advocating giving the elections a chance. “It we don’t take this opportunity, we are denying the electors a choice,” said Dr Nay Win Maung. “And in so doing we are condemning the country to more decades of military rule.”

By participating in the elections, it will help to the creation of a “liberal authoritarianism” rather than pure military rule - and although imperfect - that would be better than the status quo, he said.