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100311 VDI PB3 Election Commission Law a Political Analysis

100311 VDI PB3 Election Commission Law a Political Analysis

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Published by Jutta Pflueg

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Published by: Jutta Pflueg on Mar 18, 2010
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Introduction
 Twenty years after the unconsummated elections in 1990, the Burmesemilitary government will organize a multi-party elections by the end of 2010. Thepopulation, keenly desiring a change, quickly grabbed the newspapers on March 9 tostudy the five electoral laws announced by the regime. To the frustrations of many readers and observers, the government newspapers have so far only carried thedetailed transcript of “Election Commission Law (01/10) and Political Party Registration Law (02/10),” leaving the three remaining laws to be published at a laterdate. The two recently announced laws will determine the nature of two very important electoral institutions—the election commission and political parties—that will be critical in shaping fundamental processes of political and economicdevelopment in Burma. While the subsequent laws that will cover politicalcampaigns, the electoral management and the presidential election are important, thefirst two laws that determine the nature of institutions may be more significant indetermining the credibility of any electoral proccess or operations that follow them. As a result, the laws have already drawn strong criticisms against two very serious implications. First, the US government has come out early in denouncing the laws for their exclusionary stand against political prisoners. As State Departmentspokesman Philip Crowley told reporters, “[T]he political party registration law makes a mockery of the democratic process and ensures the upcoming election willbe devoid of credibility.”
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Second, a few NLD leaders have also expressed theirfrustrations against the laws that require them to disown their party leaders andmembers who have sacrificed their lives behind bars due to their advocacy fordemocratic changes. Unlike the 1989 Political Party Registration Law (PPRL), thecurrent law not only requires that the parties do not recruit members who arecurrently serving sentences, but also requires that they not retain them.
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  The laws also have other implications. One condition, which threatenssmaller political parties that may only plan to contest the sub-national elections,requires that they recruit 500 party members (as opposed to the requirement of 1,000 members for parties contesting at the national level) within 90 days. It is notonly logistically difficult for smaller parties to recruit 500 due-paying members but itis even more challenging to do so in the next ninty days given the uncertain politicalenvironment. Another condition is set to favor political parties with businessconnections that they can, under the new rules of PPRL 2010, run party-ownedbusiness operations legitimately to finance the party. This not only undermines alevel-playing field among political parties but can also potentially fuel conflicts of interests and policy corruption in the future.
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Agence France Presse. “Myanmar polls ‘devoid of credibility’: US,” 10
th
Mar 2010. The laws cameout ahead of the planned visit to Myanmar by US Assistant Secretary of State Kurt Campbell, whocriticized the laws even before his arrival in the country.
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NLD Central Executive Committee Member U Ohn Kyaing and U Aung Thein both criticized thelaw requiring the NLD to expel Daw Aung San Suu Kyi and other jailed members. Burma’s neighborssuch as Thailand and Malaysia have faced similar challenges when political leaders such as ThaksinShinawatra and Anwar Ibrahim were convicted. During the parliamentary period in Burma before1962, a few political leaders were elected while they were still serving sentences in prison.
Policy
No. 3
Mar 2010
Brief
SPDC’s Election Commsion Lawand Political Party Registration Law
 
A Political Analysis (Draft)
   P  o   l   i  c  y   B  r   i  e   f
Vahu Development Institute
PO Box 32Chiang Mai University POChiang Mai 50202
 
Policy Brief 
Election Laws: Political Analysis 
 
March 2010
2
Election Commission Law: Some Salient Points
Most of the provisions in the 2010 Election Commission Law (ECL) are in line with the 2008Constitution as well as the previous Election Commission Law enacted in 1988. The law stipulates familiarprovisions contained in the 1988 law. However, there are a few provisions that have particular signficanceand ramifications:1)
 
 A subtle but very important implication is that the 2010 ECL repealed the 1988 ECL (which was thebasis of the 1990 elections). This, by extension, is tantamount to declaring the 1990 elections nulland void. This has compelled the National League for Democracy, winner of the 1990 elections, torequest a clarification on this point. If no explanation is forthcoming, they will take a stand againstthis law. According to U Win Tin, a CEC member of the NLD, the party will stick to their earlierdeclaration that demands that the results of the 1990 election be honoured.2)
 
Regarding the appointment of the members of the Election Commission (EC), the 2010 ECL hasexpanded on Article 398 of the 2008 Constitution, which requires that members of the EC have“legal professional backgrounds” (either a supreme court judge, high court judge or law officer) andother basic requirements of a parliamentary candidate. Setting aside other provisions of Article 398,the current ECL picked the easiest condition of the Article 398 that “EC members will be composedof individuals deemed by 
the SPDC 
(in Article 398, it is
“deemed by the President”)
as eminent persons.” This provides a wide latitude for the SPDC to appoint EC members.3)
 
 The ECL stipulates that the EC, rather than the SPDC, will set the date for elections, which will thusbe determined at a later date). This will relieve the SPDC from answering repeated questions fromthe international community about the exact date of the elections.4)
 
 Although the EC is a transitional body, its term will be ended only when the future President forms anew EC with the mandates given by the 2008 Constitution. This provides an influential role for theEC to shape political party development (through its power of de-registration) during the crucialperiod right after the elections.
1990 Election Results: Null and Void
 According to Article 91 of Pyithu Hluttaw (lower house) Electoral Law 3/2010, which wasannounced on Thursday in state newspapers, the SPDC has officially annulled the results of the 1990elections. Article 91 of the law reads: “Pyithu Hluttaw Electoral Law 14/89 issued by the State Law andOrder Restoration Council [the former name of the State Peace and Development Council] has beenrepealed by this law. The result of the multi-party general elections [in 1990] in accord with the repealed law is invalid because the result does not conform with the [2008] Constitution.” However, one puzzling development is that local authorities in a few cities and towns have summoned NLD leaders to allow the re-opening of some party offices, meaning that the NLD can now organize party activities for the new elections.
Clauses of Interest from the 2010 Political Party Registration Law 
Compared to the ECL, the 2010 Political Party Registration Law (PPRL) has many interesting andperhaps sweeping provisions that can determine the nature of party development and electoral processes inBurma during the next ten months. The following is an unofficial translation and interprertation of theseprovisions. The Vahu Development Institute (VDI) has also compared and contrasted these provisions with those stipulated in the 1988 PPRL. The phrases and clauses written in italics are new additions that arenot found in the preivous law enacted in 1988.
 
Policy Brief 
Election Laws: Political Analysis 
 
March 2010
3
Clauses of InterestPolitical Analysis and Interpretation
 Article 4.
Those who want to establish a party mustmeet the following criteria:(a)
 
Nationals,
 guest nationals, foreign nationals whohave been granted national status or temporary ID holders 
.(b)
 
 Above 25 years of age(c)
 
Religious servants (defined in Article 2 asBuddhist monks, novices, hermits andnuns, Christian ministers, clergy members and pastors and Hindu priests,but no reference is made to Muslimclerics) are prohibited.(d)
 
Civil servants are prohibited.(e)
 
 Those serving prison terms or appealing ajudge’s decisions are prohibited.(f)
 
Rebels, terrorists, members of unlawfulassociations, and any individuals who arein direct or indirect contact with or aresupporters of such associations areprohibited.(g)
 
 Those who are linked to drug offenses areprohibited.(h)
 
Foreigners and those who have assumedforeign citizenships are prohibited.Para (a) is not only interesting but intriguing, and itcan be re-deeming for those whom successivegovernments in Myanmar have not recognized ascitizens. Particular reference can be made to Chineseand Indian descendents who hold foreign residencecards, ethnic nationals living in border areas, andminority Rohingya muslims.Para (c) makes no mention of Muslim clerics.Para (e) will implicate an estimate of 2,000 politicalprisoners and their existing political parties such asthe NLD, SNLD, ALD and UNLD. The secondclause appears to be specifically referring to Daw  Aung San Suu Kyi who is still appealing to theSupreme Court against her sentence.
 Article 5f.
Parties that want to organise in the whole union must agree that they will have at least 1,000 party members within 90 days from the day of registering as a political party, political parties that will organise only within regions or states [sub-national level] must agree to have at least 500 party members within 90 days from the day of registering as a  political party.
  The recruitment of 500 due-paying party membersmay be a daunting task for ethnic and smaller parties. The 1988 PPRL does not have this stipulation.
 Article 6.
Compliance with the following criteriamust be stated in the [party] registration applicationin accordance with Article 5.(c) [Parties] must protect the Constitution of theUnion of Myanmar.(f) [Parties] must not accept
the influence 
, or directly orindirectly receive financial or material support from, aforeign government or religious organisation or any other organisation or person.Para (c) is a common clause in many constitutionsaround the world. However, this can be problematicfor the NLD and a few ethnic political parties thathave demanded the review, amendment and/orabolishment of the 2008 Constitution.In para (f) the meaning of influence (“
 Awza 
inBurmese) is quite broad. It will be interesting toknow how the EC will determine if a particularpolicy of a political party that happens to be in line

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