The Burmese junta never fully reveals its hand. And the main thrust of any announcement or policy is to keep the opposition and, to a lesser extent, the international community guessing. The junta supremo, Than Shwe is a master of psychological warfare; and he has certainly used the rolling out of the electoral laws, bit by bit, to keep the opposition on the back-foot.
Unfortunately the international community has reacted predictably by totally rejecting the laws that have been unveiled – even before all of them were published – and confidently pre-determining that the election would be neither free nor fair. The US and the UK both took a very hard line without looking carefully at the regulations. For them there is only one issue – the detained opposition leader Aung San Suu Kyi must be freed and allowed to contest the elections for the process to be credible and inclusive.
So far, few of the real nuts and bolts of the forthcoming election have actually been revealed, especially the campaign conditions. So it is a little premature to already completely condemn the election. Except for the players – those political parties and politicians inside the country who may be considering contesting the elections – it would be prudent to take a deeper look at the electoral laws.
“These laws laid down relatively fair conditions for the election,” said a senior member of a party that plans to register candidates to contest the election. The registration fee for each party – 300,000 kyat or $US300 – is comparatively cheap, and more crucially the fee for candidates to register to run in the elections is 500,000 kyat (or $US500); far below what was being predicted. Many politicians preparing for the elections believed it would be over $US2,000 and possibly as high as $US5,000.
“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 will also take place in front of local scrutinizers as representatives of all candidates will be allowed to watch the count and make sure there are no irregularities.
This means that that it will be harder for the regime to manipulate the results, like in the 2008 referendum, according to many analysts inside Burma. But the junta has made it abundantly clear that no international election monitors will be allowed in the country. Only last month, the interior minister, attorney general and the chief justice, all told the UN envoy on human rights Tomas Ojea Quintana in no uncertain terms that international observers were not needed. So doubts about the transparency of the process will remain, particularly as seems highly unlikely that foreign journalists will be allowed into the country to cover the campaign or the polls.
“Compared to many other international examples, these laws would not be judged as particularly unfair,” a Western diplomat based in Rangoon told DVB on condition of anonymity. “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 in this context, it is not unexpected that most analysts, diplomats and observers are reluctant to give the regime the benefit of the 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 seventeen members of the electoral commission who were recently appointed, except from the president U 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.
The fact that the 1990 election results have now been formally annulled should also come as no surprise. The fact that the regime has drawn up a new constitution, rammed through a referendum and scheduled fresh elections all in essence made the 1990 elections redundant. Of course this is a disappointment for the NLD and other opposition politicians who toiled so hard to win 20 years ago – and suffered harassment, intimidation and in many cases detention ever since.
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 on Thursday, 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 pro-democracy movement in Thailand, Zin Linn.
There are also severe limits to the amount of money a party and candidate can use in their election campaign. Each candidate can only spend up to 10 million kyat ($US10,000), either from party funds or their own finances. All parties and candidates are strictly prohibited from receiving money from abroad – which is no different from most countries, including the United States. But election finances will certainly be meticulously examined by the EC which can outlaw candidates or political parties for electoral infringements.
Of course the biggest problem with the laws remains the fact that all political activists currently in prison, including Aung San Suu Kyi – though some observers like the former British Ambassador to Thailand and Vietnam, Derek Tonkin, now a leading commentator on Burmese affairs suggests she should actually be exempted as she is under house arrest and not in jail – not only cannot run for election, but cannot be members of a political party. This undoubtedly is unfair – as these people are in prison because they were politically active. Most also have been unfairly convicted and usually on trumped-up charges.
“This [provision] is a gratuitous flouting of the junta’s authority,” said Benjamin Zawacki, Amnesty’s Bangkok-based Burma researcher. “For the election to be credible, all political prisoners must be released and allowed to participate.”
This is a crucial point that many governments and human rights groups have been making loudly all along. For if the elections are to be inclusive and transparent as representatives of the regime have been insisting, including the foreign minister Nyan Win at an Non-Aligned Movement meeting in the Philippines this week, all political prisoners must be freed.
The UN envoy for human rights told DVB that throughout his recent visit to Burma, he continued to stress the need to release all political prisoners before the elections if the process was to at all believable. “These are well-educated and capable people who could participate in the election and help make the whole process credible, I told the authorities,” he said.
While this is completely true, and the election will not be seen internationally as free and fair if they remain in detention, this does not make the election laws unacceptable. At present there are more than 2,000 political prisoners, including more than 400 NLD members. Though it is highly likely that many of them will be released in a mass amnesty once the election date is announced – it is almost certain that Aung San Suu Kyi and the imprisoned activists in the 88 group will not be among them.
But if Aung San Suu Kyi is prevented from taking part in the elections, this in itself will not make the elections unfair or unfree. They would certainly not be inclusive or credible. But what the laws reveal is that the regime is putting into place systems whereby they will can effectively control the results. 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.