(May 14, 2010) In the view of Human Rights Watch, the new election laws issued in Burma (Myanmar) in March 2010 by the ruling military regime, the State Peace and Development Council (SDPC) “are designed to exclude the main opposition party and ensure a victory for the ruling military.” (Burma: Election Laws May Shut Down Opposition Parties, Human Rights Watch (HRW), Mar. 10, 2010, available at http://www.hrw.org/en/news/2010/03/10/burma-election-laws-may-shut-down-
opposition-parties.) The main opposition party is the National League for Democracy (NLD), which won the 1990 elections but was denied power by the military junta. All five of the new election laws were adopted on March 8, 2010, in preparation for the 2010 elections, the first in the country in 20 years.
The Political Parties Registration Law
The Political Parties Registration Law (Law No. 2/2010) repeals the former Political Parties Registration Law issued in 1988, when the military seized control of the country and the regime was known as the State Law and Order Restoration Council (SLORC). (Burma Election 2010 (May 2010), 18: 5 THE IRRAWADDY (May 2010), available at http://www.irrawaddy.org/article.php?art_id=18395; ELECTION MONITOR NO. 16 (Mar. 12, 2010), available at http://euro-burma.eu/doc/EM-_no_16_12-03-10.pdf; Political Parties Registration Law [unofficial English translation] (hereinafter PPR Law) MIZZIMA NEWS, Mar. 11, 2010, available at http://www.mizzima.com/research/3643-political-parties-registration-law.
html.) Some highlights of the new Law follow.
1. Restrictions on Political Party Operation
News reports contend that provisions in the new Law were incorporated in particular with a view to preventing pro-democracy activist and NLD leader Aung San Suu Kyi from being a candidate in forthcoming elections. “The law requires the NLD to choose between participating in the elections and keeping its leader and hundreds of its unjustly imprisoned members,” stated Brad Adams, Asia director of Human Rights Watch, adding,”[t]his is a choice that no political party should have to make and is a transparent attempt to knock the main opposition party out of the running.” (HRW & ELECTION MONITOR, supra.)
Under article 12(a)(6)of the Law, a party will not be entitled to operate as a political party if it infringes, among other points, item 6: “[i]ntentionally concealing the fact of not ousting the party members who are not in conformity with the stipulations under section 10 of this Law.” According to article 12(b), the Union Election Commission “shall deregister the party which infringes a stipulation under subsection (a) (of this section) and this party shall be abolished.” (PPR Law, supra.) Article 10 lists the qualifications of political party members, among whom are disallowed those serving a prison term (item (e)). (Id.)
Suu Kyi had filed an application with Burma’s High Court to annul some articles of the new Political Parties Registration Law, but it was rejected. The filing challenged, among other provisions, the one that bars convicted persons from being members of a political party. Suu Kyi is currently under detention and has been under house arrest imposed by the military government for most of the past 20 years, and she was convicted in 2009 of illegally harboring an uninvited American visitor who had swum to her lakeside home. Some 2,100 other political prisoners would also be banned by the new Law from running for office. (NLD Holds Last Event as Legal Party, THE IRRAWADDY, May 6, 2010, available at http://www.irrawaddy.org/article.php?art_id=18389.)
The NLD has been forced to dissolve as a result of the new Law and others enacted on the same date. Terming the laws “undemocratic and unfair,” the NLD decided not to undergo registration as a party in 2010, a requirement under the new laws for contesting a projected upcoming election; the NLD reportedly considers its non-registration “tantamount to an election boycott.” (NLD Holds Last Event as Legal Party, supra.) Under article 25 of the Political Parties Registration Law:
Parties which are in existence under the Political Parties Registration Law (State Law and Order Restoration Council Law No. 4/88) shall apply to the Commission within 60 days from the date of enactment of this Law if they wish to continue as a political party. Unless they apply as aforementioned, these parties shall be presumed automatically null and void from the registration of political parties.(ELECTION MONITOR, supra.)
Paradoxically, earlier this year, the new election laws made it possible for branch offices of the NLD to reopen, after having been closed down by the government for some seven years. News reports indicate it is unclear whether the branch offices will be permitted to stay open once the NLD headquarters closes. (NLD Holds Last Event as Legal Party, supra.)
2. Politics and Business No Longer Clearly Separated
Another significant feature of the new Law is that it promotes the principle of a “disciplined multi-party democratic system” that apparently no longer demarcates politics from business, permitting political parties to form businesses as a means of garnering funds. (Burma Election 2010 (May 2010), supra.) Article 15, section (a), states, most notably in the atypical sub-section 3:
Political parties shall collect funds, and maintain financial records, through the following ways:
(1) membership and monthly fees collected in accordance with Article 11;
(2) donations in cash or kind from the official income of an individual, an organization, a company or a group of companies owned by Burmese nationals; and
(3) official income and profits from businesses owned by the party. (Id.)
It has been speculated that sub-section 3 was included by the junta specifically in order to enable the generals to “channel funds and property owned by military-aligned conglomerates into their political parties to finance candidates in as many constituencies as possible.” (Id.) Moreover, even though the Law gives the Union Election Commission the power to audit party financial accounts, the provision may have the effect of enabling businessmen “to merge and run businesses under the cover of a political party.” (Id.) Section b of article 15 exempts from taxation money and property earned from fees and donations in accordance with sub-subsections (1) and (2) above. (PPR Law, supra.)
Other New Election Laws
The other four newly adopted election laws are the Union [of Myanmar] Election Commission Law; the People’s Parliament Election Law; the National Parliament Election Law, and the State or Division Parliament Law.
The stated purposes of the Union Election Commission Law, which repeals the Multi-Party Democracy General Election Commission Law (SLORC Law No. 1/88), are to supervise political parties and to supervise the people’s exercise of their right to stand for election and to exercise their franchise (Preamble). The SPDC has the authority to appoint the Union Election Commission (art. 3). Among other qualifications, the chairman and members of the commission must be at least 50 years of age, not be members of any political party, not be drawing a salary or holding any office, and be persons the SPDC deems to have “a good reputation among the people” (art. 4). (Election Commis
sion Law in English, MIZZIMA NEWS, Mar. 9, 2010, available at http://www.mizzima.com/research/3634-election-commission-law-in-english.
html.) In the view of the ELECTION MONITOR (a publication of the Euro-Burma Office, “established in Brussels in 1997 to promote the development of democracy in Burma”), “[t]he appointment of the 17-member National Election Commission led by a former military advocate general is another clear signal indicating the military’s intent to select and appoint all political positions from within the military.” (ELECTION MONITOR, supra.)
A key provision of the People’s Parliament Election Law, article 91, appears to be aimed at ending continuing demands to honor the election results of 1990 by repealing the former Electoral Law 14/89. The People’s Parliament Election Law and the National Parliament Election Law, according to the ELECTION MONITOR, seek the continuation of military rule and the military’s domination of the country’s political future. The State or Division Parliament Law governs the formation of regional parliaments, including the election of members from autonomous regions and ethnic minority groups. (ELECTION MONITOR, supra.)
The release of the five laws is the penultimate step in the military government’s seven-step, long drawn out “Road Map to Disciplined Democracy.” (HRW, supra.) Step 7 is “building a modern, developed and democratic nation by the state leaders elected by the Hluttaw [parliament or assembly]; and the government and other central organs formed by the Hluttaw.” (7-Step Road Map (Including the 2010 Elections), Online Burma/Myanmar Library, http://www.burmalibrary.org/show.php?cat=2378&lo=&sl= (last visited May 13, 2010).)