By Burma Partnership
2 December 2010
"Although we don’t like the USDP, all the villagers including me voted for the USDP since we were ordered by the town authorities to vote for the USDP. We were afraid while we were voting since the authorities were watching on us at the polling station, to see if were voting for them or not."
Throughout the elections, the regime exercised gross abuses of authority in a widespread attempt to dominate and manipulate the elections to their advantage. From publically supporting the regime-backed Union Solidarity and Development Party (USDP), to employing the Union Election Commission to unlawfully influence voters, to forcing vast numbers of voters to support the USDP or face consequences such as fines, demotions, or arrests, the regime was involved in the elections at all levels. The Election Commission’s blatant favoritism highlights the way in which the elections have been structured to further the regime’s plans to entrench military rule. Certainly, the regime’s handpicked Election Commission and undemocratic election laws are indicative of the severe lack of rule of law in Burma – where laws are structured to be used against the people, rather than to protect their rights.
Government interference largely manifested in the regime’s extensive involvement in USDP’s campaign. The regime heavily supported the USDP from the very beginning; formed by Prime Minister Thein Sein and leading ex-military generals, the USDP was intrinsically tied to the regime from inception. The party capitalized on its role as the regime’s party and exploited government resources, materials, infrastructure and authority. Such violations took place on a widespread and systematic basis. During the elections, Burma Election Tracker documented over 200 incidents of unlawful government interference out of a total of 500 incidents – an indicative sampling of the kinds of violations that occurred throughout the country.
Direct Regime Involvement in USDP Campaigns
The State Peace and Development Council (SPDC) was heavily invested in the USDP’s election campaign, and local authorities were systematically involved in campaigning for the party. Such campaigns were in complete violation of the election laws as the regime used intimidation, threats, coercion and bribery to force the public to cast votes for the regime-backed party. Such threats took place early on in the pre-election period. In May 2010, the regime donated one hundred million kyat to the USDP to build an office in Falam Township, Chin State; one month later, the local authorities conducted forced membership campaigns in Falam, demanding that one member per household join the USDP.
The regime’s involvement in the USDP’s campaigns increased as election day grew closer. In Rangoon, village heads conducted door-to-door campaigns, forcing households to cast votes for the USDP in advance, while in Arakan State, local authorities threatened to withhold humanitarian aid from populations affected by Cyclone Giri if they voted for the Rakhine Nationalities Development Party rather than the USDP.
On the day of the elections, local authorities in Kachin State were present at the polling stations. One voter reported, “The Chairman of the Quarter-Level SPDC [was] in front of the polling station watching and telling the voters that 'You must vote for U Sakhont Tainyein [USDP candidate] and we know who you voted for so watch out!' Therefore people had to vote for him.” Moreover, government employees throughout the country were forced to vote for the USDP and report to their superiors or face demotion.
Government interference did not end with election day; SPDC intimidation, threats and manipulation of government services continued in the post-election period as the regime sought to punish those who had defied orders to vote for the USDP. In Mon State, a citizen reported to Burma Election Tracker that after the USDP had lost in their township, the USDP and the village head assembled local villagers to interrogate them on why they voted for the Mon party. Seven villagers openly declared that they were Mon people so would vote for the Mon party despite the odds; all seven were fined 5,000 kyat (US$5). In Pauktaw Township, Arakan State, the local authorities cut off necessary electricity and water supplies to areas that had voted for the USDP. Days later, authorities continued to harass communities that had failed to vote for the USDP by destroying an embankment designed to protect the fields from salt water damage. One thousand acres of paddy fields were ruined, directly affecting those villagers’ livelihoods.
Election Commission Bias and Uneven Application of Election Laws
During the elections, the Election Commission (EC) was involved in the regime’s efforts to secure a victory for the USDP at all levels. Throughout the election process, the EC turned a blind eye to the USDP’s election law violations. The EC’s bias was not unexpected given that the regime personally handpicked its members. Two EC members are on the European Union blacklist for their leading role in extending Daw Aung San Suu Kyi’s house arrest sentence in 2009, demonstrating that they are willing prioritize the regime’s demands above the rights of their citizens.
The regime’s election laws and notifications were structured to marginalize opposition parties and restrict democratic space. The ban on political prisoner participation ensured that parties such as the National League for Democracy (NLD) must expel members from their party who were currently serving a sentence in order to compete in the elections, excluding vital stakeholders such as Daw Aung San Suu Kyi [Political Parties Registration Law, articles 4 (e) and 10(e)]. Furthermore, the EC placed significant restrictions on campaign space, including a ban on flags, marching, shouting slogans or criticizing the 2008 Constitution [Union Election Commission, Notification No. 91/3010]. Notably, the USDP conducted nationwide campaigns using flags, marches and slogans, with no repercussions.
The EC was moreover directly involved in USDP’s campaign process on the day of the elections. In Pegu division, EC officials blatantly campaigned on behalf of the USDP at the polling station, chanting, “Vote for lion, vote for lion" (the lion is USDP symbol), while officials in Rangoon tampered with ballots and changed them in favor of the USDP.
Citizens also reported restricted access and intimidation. In Irrawaddy Division, authorities and the EC refused to allow a citizen to vote after learning that the voter intended to cast a ballot for leading democracy party, the National Democratic Force (NDF). Another citizen in Rangoon was told their name would only be placed on the voting list if they pledged to vote for the USDP. Such blatant favoritism directly violates voter’s rights by any international standard, as well as those set out in the election laws [see Amyotha Hluttaw Electoral Law, Pyithu Hluttaw Electoral Law and Regions and States Hluttaw Electoral Law Chapter XIII].
In essence, the election laws, and the Election Commission were structured to ensure that the regime would be able to manipulate the process throughout the elections. While the restrictive election laws ensured that opposition parties were vulnerable to accusations of election violations for carrying out campaign activities typical in a multiparty election, the EC ensured that regime backed parties would be immune from such pressure. The election laws were constructed to be used against the people, rather than to protect their rights.
Flawed Election Complaint System
The problematic nature of the election laws and the Election Commission is also clearly evidenced in the structure of the election complaint system. In order to file an election complaint, a party must pay a fee of one million kyat (US$1,000) before the EC will investigate the complaint. This fee is well beyond the capability of many political parties, who have spent the majority of their funds on the exorbitant candidate registration fees of 500,000 kyat per candidate (US$500). These fees are extremely expensive in Burma where 500,000 kyat is approximately one-year’s salary of an average civil servant. Only after submitting the complaint with the one million kyat fee will the EC form an Election Tribunal to investigate the complaint. If the petitioning party finds the Election Tribunal’s decision to be flawed, the EC has the final decision making power on the verdict.
The maximum penalty for an election violation such as “violence, threat, undue influence, cheating, taking or giving of bribes to prevent a person from exercising the right of voting and the right to stand for election” is 100,000 kyat (US$100) and/or one year imprisonment. Given that those committing election violations must pay a maximum of one-tenth of the fee for submitting a complaint, the election complaint fee is absurd and simply geared towards deterring parties from filing complaints.
Moreover, article 64 in the election laws states that:
Whoever is found guilty of dishonestly and fraudulently lodging any criminal proceedings against any person regarding offences relating to election shall, on conviction be punishable with imprisonment for a term not exceeding three years or with fine not exceeding three hundred thousand kyats or with both.
The regime has exploited this law, warning opposition parties that wrongfully filing an election complaint would result in a penalty three times more severe than committing a violation. This warning was publicized in the state-run media, which claimed that, “allegations through foreign radio stations and print media on the grounds that their candidates were not elected in the elections… go against the Article 64 of the respective Election Laws.” As article 64 only refers to fraudulent criminal proceedings, not general criticism in the media, this statement highlights the regime’s exploitation of the election laws to control the population through threats and intimidation.
The numbers speak for themselves. One million kyat to file the complaint, 300,000 kyat if the accusation is deemed unfounded, and only 100,000 kyat if the defendant is found guilty of malpractice or other violations of the election laws. Furthermore, the EC is fully exempt from any prosecution:
No civil or criminal action shall be taken against the Commission and members of the Commission, Sub- commissions at various levels and their members, Election Tribunals, members of the Election Tribunals, members of the polling booth teams including polling booth officers who in the exercise of the powers conferred lawfully discharge their duties according to law, in good faith and to the best of their ability. [Amyotha Hluttaw Electoral Law, Pyithu Hluttaw Electoral Law and Regions and States Hluttaw Electoral Law, article 87].
This highly flawed and problematic legal structure speaks to the larger issues of rule of law in Burma. Much like the election laws, state laws have been used time and time again to repress and control the population instead of honoring and protecting their rights. As noted by the Asian Legal Resource Centre:
The country lacks a normative framework to protect human rights under article 5 and articles 8 through 13 of the Universal Declaration of Human Rights… Two major obstacles to implementation of human rights are the State’s perception that the rule of law is a function of the executive and therefore that the role of the judiciary is to enforce policy rather than law; and, the accompanying systemic corruption in all parts of the State apparatus, especially in the judiciary and police.
Certainly, Burma’s authorities have routinely employed laws such as the Electronic Translation Law (2004), the Printers and Publishers Act (1962) and Unlawful Association Act (1908) to criminalize peaceful dissent and detain political prisoners.
The 2008 Constitution will be enacted by the incoming parliament. This document will not only grant the military independence from civilian rule, entrench military dominance in parliament and grant the president full authority to void all basic human rights in a state of emergency, but will further grant the SPDC and all future governments complete immunity from prosecution. The Constitution further states that all existing laws will remain in place unless they are repealed or amended by the respective parliaments. Since the Constitution ensures that the military will hold 25% of the parliamentary seats, military-backed parties must only gain a minority of the electoral seats in order to have veto power over all legislative acts; this will impact all future incoming parliaments unless this article is amended. China’s state news, citing the Election Commission, reported that the USDP won 76.5% of the parliamentary seats, ensuring that the regime will be able to unilaterally amend the constitution or pass any legislative acts.
Even more alarming are the new laws as reported by the Associated Press which restrict freedom of speech in parliament. Signed by Senior-General Than Shwe, the laws allow parliamentarians freedom of expression unless they “threaten national security, the unity of the country or violate the Constitution.” Those who hold protests in the parliament compound or physically assault a lawmaker in parliament will face a two-year prison sentence.
These new laws will further limit the capacity of democracy and ethnic members of parliament to represent those who had elected them into power and their constituencies. As noted by the chairman of Burma Lawyers Council (BLC) U Thein Oo, “This law is like a trap—putting pressure on the representatives. If MPs want to amend a law or an article, they will have to challenge the Constitution. The representatives simply won’t have a chance to speak.” Parliamentarians will be prevented from fully carrying out their duties in representing the interests of the public. The new laws exist merely to further restrict elected parliamentarians who may seek to challenge the military, again ensuring complete control over the incoming government.
The regime’s involvement in the USDP’s campaign speaks to the fact that the USDP exists to serve the current regime’s interests and does not represent a change of government. In the lead up to the elections, the USDP failed to demonstrate any interest in protecting the rights of the people or serving citizen’s interests, and rather colluded with the regime to fraudulently dominate the elections. Coupled with the 2008 Constitution, the results of the elections guarantee that the military and their affiliates will continue to govern Burma with a complete absence of rule of law; the same officials will be able to carry on instituting abusive laws while manipulating their own laws, thereby continuing to criminalize dissent, repress freedom of speech and control the people of Burma.