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SPDC’s Election Commsion Law

and Political Party Registration Law Policy No. 3


A Political Analysis (Draft)
Mar 2010 Brief
Introduction
Twenty years after the unconsummated elections in 1990, the Burmese
military government will organize a multi-party elections by the end of 2010. The
population, keenly desiring a change, quickly grabbed the newspapers on March 9 to
study the five electoral laws announced by the regime. To the frustrations of many
readers and observers, the government newspapers have so far only carried the
detailed transcript of “Election Commission Law (01/10) and Political Party
Registration Law (02/10),” leaving the three remaining laws to be published at a later
Policy Brief
date. 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 economic
development in Burma. While the subsequent laws that will cover political
campaigns, the electoral management and the presidential election are important, the
first two laws that determine the nature of institutions may be more significant in
determining 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 Department
spokesman Philip Crowley told reporters, “[T]he political party registration law
makes a mockery of the democratic process and ensures the upcoming election will
be devoid of credibility.”1 Second, a few NLD leaders have also expressed their
frustrations against the laws that require them to disown their party leaders and
members who have sacrificed their lives behind bars due to their advocacy for
democratic changes. Unlike the 1989 Political Party Registration Law (PPRL), the
current law not only requires that the parties do not recruit members who are
currently serving sentences, but also requires that they not retain them.2
The laws also have other implications. One condition, which threatens
smaller 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 not
only logistically difficult for smaller parties to recruit 500 due-paying members but it
is even more challenging to do so in the next ninty days given the uncertain political
environment. Another condition is set to favor political parties with business
connections that they can, under the new rules of PPRL 2010, run party-owned
business operations legitimately to finance the party. This not only undermines a
level-playing field among political parties but can also potentially fuel conflicts of
interests and policy corruption in the future.

1 Agence France Presse. “Myanmar polls ‘devoid of credibility’: US,” 10th Mar 2010. The laws came
out ahead of the planned visit to Myanmar by US Assistant Secretary of State Kurt Campbell, who
criticized the laws even before his arrival in the country.
2 NLD Central Executive Committee Member U Ohn Kyaing and U Aung Thein both criticized the
Vahu Development Institute law requiring the NLD to expel Daw Aung San Suu Kyi and other jailed members. Burma’s neighbors
PO Box 32 such as Thailand and Malaysia have faced similar challenges when political leaders such as Thaksin
Chiang Mai University PO Shinawatra and Anwar Ibrahim were convicted. During the parliamentary period in Burma before
Chiang Mai 50202 1962, a few political leaders were elected while they were still serving sentences in prison.
 
Policy Brief 2

Election Commission Law: Some Salient Points

Most of the provisions in the 2010 Election Commission Law (ECL) are in line with the 2008
Constitution as well as the previous Election Commission Law enacted in 1988. The law stipulates familiar
provisions contained in the 1988 law. However, there are a few provisions that have particular signficance
and ramifications:
1) A subtle but very important implication is that the 2010 ECL repealed the 1988 ECL (which was the
basis of the 1990 elections). This, by extension, is tantamount to declaring the 1990 elections null
and void. This has compelled the National League for Democracy, winner of the 1990 elections, to
request a clarification on this point. If no explanation is forthcoming, they will take a stand against
this law. According to U Win Tin, a CEC member of the NLD, the party will stick to their earlier
declaration 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 has
expanded 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) and
other 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 composed
of 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 thus
be determined at a later date). This will relieve the SPDC from answering repeated questions from
the 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 a
new EC with the mandates given by the 2008 Constitution. This provides an influential role for the
EC to shape political party development (through its power of de-registration) during the crucial
period right after the elections.

1990 Election Results: Null and Void

According to Article 91 of Pyithu Hluttaw (lower house) Electoral Law 3/2010, which was
announced on Thursday in state newspapers, the SPDC has officially annulled the results of the 1990
elections. Article 91 of the law reads: “Pyithu Hluttaw Electoral Law 14/89 issued by the State Law and
Order Restoration Council [the former name of the State Peace and Development Council] has been
repealed 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 and
perhaps sweeping provisions that can determine the nature of party development and electoral processes in
Burma during the next ten months. The following is an unofficial translation and interprertation of these
provisions. 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 are
not found in the preivous law enacted in 1988.

Election Laws: Political Analysis March 2010


Policy Brief 3

Clauses of Interest Political Analysis and Interpretation


Article 4. Those who want to establish a party must
meet the following criteria:
(a) Nationals, guest nationals, foreign nationals who Para (a) is not only interesting but intriguing, and it
have been granted national status or temporary can be re-deeming for those whom successive
ID holders. governments in Myanmar have not recognized as
(b) Above 25 years of age citizens. Particular reference can be made to Chinese
(c) Religious servants (defined in Article 2 as and Indian descendents who hold foreign residence
Buddhist monks, novices, hermits and cards, ethnic nationals living in border areas, and
nuns, Christian ministers, clergy minority Rohingya muslims.
members and pastors and Hindu priests,
but no reference is made to Muslim Para (c) makes no mention of Muslim clerics.
clerics) are prohibited.
(d) Civil servants are prohibited. Para (e) will implicate an estimate of 2,000 political
(e) Those serving prison terms or appealing a prisoners and their existing political parties such as
judge’s decisions are prohibited. the NLD, SNLD, ALD and UNLD. The second
(f) Rebels, terrorists, members of unlawful clause appears to be specifically referring to Daw
associations, and any individuals who are Aung San Suu Kyi who is still appealing to the
in direct or indirect contact with or are Supreme Court against her sentence.
supporters of such associations are
prohibited.
(g) Those who are linked to drug offenses are
prohibited.
(h) Foreigners and those who have assumed
foreign citizenships are prohibited.
Article 5f. Parties that want to organise in the whole union The recruitment of 500 due-paying party members
must agree that they will have at least 1,000 party members may be a daunting task for ethnic and smaller parties.
within 90 days from the day of registering as a political party, The 1988 PPRL does not have this stipulation.
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.
Article 6. Compliance with the following criteria Para (c) is a common clause in many constitutions
must be stated in the [party] registration application around the world. However, this can be problematic
in accordance with Article 5. for the NLD and a few ethnic political parties that
have demanded the review, amendment and/or
(c) [Parties] must protect the Constitution of the abolishment of the 2008 Constitution.
Union of Myanmar.
(f) [Parties] must not accept the influence, or directly or In para (f) the meaning of influence (“Awza” in
indirectly receive financial or material support from, a Burmese) is quite broad. It will be interesting to
foreign government or religious organisation or any know how the EC will determine if a particular
other organisation or person. policy of a political party that happens to be in line

Election Laws: Political Analysis March 2010


Policy Brief 4

with a policy of a foreign government is under


foreign influence.3 The inclusion of religious
organizations (with particular ramifications for
Christian networks), other organizations (no
clarification is made here) and foreign individuals
under this clause can have sweeping effects.
Section 3 – The deregistration [of political parties]
Article 12 (a) – If a party violates the following Fielding candidates in at least in three constituencies
criteria [the party] will be discontinued: can be a daunting task for a smaller party. However
there was a similar clause in the 1988 PPRL.
(1) The inability of a party to put forth legislative
representatives from at least three constituencies of Sub-clause (3) includes potentially serious but vague
the regional or state legislatures, the People’s wording about being “in contact with.” This
Legislature or the National Legislature to contest the wording was not included in the 1988 PPRL, and
general election. may cover social contacts and other non-political
(2) Having been declared an illegal association communication.
under existing law.
(3) Having been in contact with or received The exemptions in para (5) may favor the Union
support either directly or indirectly from members of Solidarity and Development Association and other
rebel groups opposing the state with arms or groups political parties previously affiliated to the
which have been declared by the state to be terrorist government that can now legally inherit funds,
organisations or that have been declared illegal properties, vehicles and other institutional support to
organisations. boost their electoral resources.
(4) Not following the agreement contained in
Article 6. Para (6) could complicate existing political parties
(5) Organisations that are discovered to be such as the NLD, Shan National League for
either directly or indirectly using money, land, Democracy and Arakan League for Democracy
houses, buildings, vehicles or materials belonging to whose party members are currently under detention.
the state. This stipulation requires these parties disown their
Exemptions: members; otherwise they can be subject to de-
(i) Party members who the country legally registration if the EC interpret that they knowingly
supports with money as a salary or expenses for have not removed “those who are serving in prisons
work done for the benefit of the country are not from party membership.” Any party that wants to
included. keep itself safe from this particular violation needs to
(ii) In the clause about the land, houses, buildings, set up an entirely new political party – as the EC can
vehicles and materials belonging to the state, claim that any prisoners previously affiliation to the
those party members who are granted permission (targeted) political party are current members. This
to use land, houses and buildings or who rent may explain why a few major political parties linked
rooms, aeroplanes, trains, ships, cars, materials, to former Prime Minister U Nu and associates,
etc. from the country are not included. including Shan independent politician U Shwe Ohn,
(6) Intentionally keeping, and not removing from the and former leftsts, have all set up new political
party, those people who do not agree with any of the parties, rather than revive their old organizations.
criteria included in Article 10.

3Ironically, “influence” can cover almost anything including positive advocacy about economic reforms. If a political party
supporting conventional reform ideas such as those advocated by the US government and Nobel laureate economists, this can be
deemed to be the “tutelage” of foreign powers and individuals.

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Policy Brief 5

(7) It is found out that a party is unable to organise


the specified number of party members in
accordance with the criteria in Article 5 para (f).

Article 15 (a) - Parties must collect their funding and For the first time, the PPRL’s financing provision
keep accounts in accordance with the following: allows a political party to legitimately run businesses
(1) Membership fees and monthly dues must be and other profit-oriented economic activities. This
collected in accordance with Article 11. stipulation is quite broad, implying that such
(2) Money or materials that are received as economic activities may include any businesses other
donations from nationals within the country, than ‘contributions or fund-raising activities’ during
organisations, national companies or national the campaign period. This is against international
company associations must be legal. norms of party financing permissible under
(3) Revenue and money that is legally received from a democratic systems.
party’s economic (business) activities.
Article 24 - This article is one of a few stipulations that provides
(a) If the commission discovers that a party has overarching and draconian power to the EC to
not followed any of these laws, regulations, threaten any political party with the suspension of its
procedures, directives or orders or any existing laws, registered status. The article provides for any person
then the commission can give the party a set period (even if they are not a member of the respective
of time and directions to follow the requirements. party) to lodge a complaint, which could trigger an
(b) If a person submits a complaint to the commission intrusive mechanism of investigation. This new
about a internal affairs of a party, the commission can stipulation gives extra power to the EC to influence
investigate and if necessary for the benefit of the the activities of political parties even after the
country can give that party a set period of time and elections. Unlike election commissions elsewhere,
directions to follow the requirements. the EC that is to be established under the SPDC’s
(c) If the commission finds out that a party fails laws can also police elected political parties in order
to precisely follow the directions, the commission to restrain their behavior inside the parliament.
can temporarily suspend that party’s registered status
for up to three years.
(d) In accordance with sub-clause (c), if a party’s
registration is temporarily suspended, within that
period, except for those activities which are directed
by the commission, all of the party’s remaining
activities must stop.
(e) In accordance with sub-clause (c) until the
end of that period in which it has been temporarily
halted, if the party fails to follow in accordance with
the directions, the commission will de-register that
party and the party will be disbanded.

Article 25 – Those political parties that are registered This article essentially makes all existing political
in accordance with the political party registration law parties unlawful unless they reapply to the
(State Law and Order Restoration Council, Law commission for registration before May 7, 2010. The
4/88) and want to remain as a political party in existing political parties need to make a decision
accordance with this law, must apply to the within sixty days on whether they will re-register their
commission within 60 days from the date on which party status.
this law was promulgated. Upon receiving

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Policy Brief 6

permission from the commission, a party will have


the right to continue operating in accordance with
this law. In that way, it must be understood that
political parties which do not apply will be
automatically disbanded.

Conclusion

The recently released series of election laws have set a very restrictive and unlevel playing field for existing
political parties to contest the elections. The laws have pushed the NLD into a corner and it will have to
come up with a critical decision regarding re-registration before May 7, 2010. However, two conditions may
prevent the NLD from re-registering as a political party. First, the NLD may not swallow its earlier
commitment about reviewing the 2008 Constitution; the party cannot abide by the requirement that political
parties must “protect the constitution.” Second, the NLD will more than likely not disown Daw Aung San
Suu Kyi and other members who are serving time in jail. In this regard, it is urgently important that the
SPDC shows its good will toward the NLD and other existing political parties by releasing all political
prisoners before May 7. In the absence of such a plan, the only solution for the NLD’s dilemma is to set up
a new political party to register at the EC. Likewise, other existing political parties such as the SNLD and
ALD will also have to set up new political parties with new leaders. Therefore, it will be important to observe
both how the SPDC will stand on the issue of political prisoners and whether the NLD will prepare to
estblish a new political party.

The recently released election laws will set the institutional framework of political contestation for the 2010
elections in Burma. At the time of writing, many articles of the law so far released do not contribute to a
conducive environment for political parties to evolve into well-functioning political institutions, let alone
contesting free and fair elections. In the coming weeks, the newly appointed Election Commssion will have
to adopt the next set of rules and regulations that will govern the operational environment of election
processes; and, unfortunately, this might become a moot point once the institutional parameters of 2010
make it almost impossible for many existing political parties to exist, let alone competing in the upcoming
elections.

Election Laws: Political Analysis March 2010