Myanmar: Election Fundamentally Flawed

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A resident checks voting lists at an administrative office in Yangon ahead of Myanmar’s upcoming general election, July 25, 2020. 
© 2020 Sai Aung Main/AFP via Getty Images

(Bangkok) – Myanmar’s electoral process is undermined by systemic problems and rights abuses that will deprive people of their right to fairly elect their government, Human Rights Watch said today. Parliamentary, state, and local elections are scheduled for November 8, 2020.

The national elections will be Myanmar’s first since 2015, which resulted in a landslide victory for the National League for Democracy (NLD), and the second contested election since 1990, when the military annulled the NLD’s overwhelming victory. Electoral problems include discriminatory citizenship and other laws that bar most Rohingya Muslim voters and candidates; reservation of 25 percent of parliamentary seats for the military; criminal prosecutions of government critics; unequal party access to government media; and the lack of an independent election commission and complaints resolution mechanism.

“It’s a milestone for Myanmar to be holding a second multiparty election, but however long the lines are to vote, this election will be fundamentally flawed,” said Brad Adams, Asia director. “The election can’t be free and fair so long as a quarter of the seats are reserved for the military, access to state media isn’t equal, government critics face censorship or arrest, and Rohingya are denied participation in the vote.”

Although there has been a recent surge in Covid-19 cases in the country, election officials say the elections will take place as scheduled. The Union Election Commission said that it would increase the number of polling places to limit overcrowding and provide personal protective equipment to poll workers. Many opposition parties have said that the government should postpone the vote because they are unable to campaign in the current circumstances.

Because of the increase in Covid-19 cases, the authorities have issued stay-at-home orders in the commercial capital, Yangon, and parts of Mandalay, Rakhine State, Mon State, Bago, Ayeyarwaddy, and elsewhere. Only people engaging in “essential” business are allowed to travel between townships in affected areas.

On September 20, the government declared journalism a nonessential business, leaving many journalists subject to stay-at-home orders and creating significant barriers for their travel to election-related events and for publications to produce physical copies of newspapers and magazines. Many well-known media outlets have stopped selling newspapers, while the two state-owned newspapers, which are supportive of the government, have been able to continue printing.

“The NLD government, which suffered under military oppression for decades, should recognize that an election without media freedom isn’t fair,” Adams said. “The government should reverse its decision and declare media workers ‘essential.’”

The Myanmar government is using the discriminatory 1982 Citizenship Law and the Election Law to disenfranchise Rohingya and prevent them from running for office, even though most Rohingya families have lived in Myanmar for generations, Human Rights Watch said. Many Rohingya were hopeful that after the 2015 elections, NLD leader Aung San Suu Kyi would change these laws and policies. Instead, the NLD has supported the military as it carried out ethnic cleansing, crimes against humanity, and possible genocide against the Rohingya in Rakhine State.

None of the one million Rohingya refugees in Bangladesh and another several hundred thousand dispersed in other countries will be allowed to vote. The authorities have barred most Rohingya remaining in Myanmar, estimated at 600,000, from registering to vote in the election. This includes approximately 130,000 Rohingya detained in camps in central Rakhine State since 2012, where they endure the crimes against humanity of persecution and apartheid and other serious rights abuses. Voter lists, posted around the country in July and August, are absent from Rohingya camps and villages.

The Union Election Commission’s mVoter2020 app, developed with the support of international election organizations, includes unnecessary and inflammatory race and religion information about candidates and their parents. A candidate in Rakhine State, Dus Muhammed, also known as Aye Win, of the Democracy and Human Rights Party, is listed as “Bengali-Bamar.” Bengali is a racist term that Burmese nationalists widely use for the Rohingya.

“It’s appalling that Aung San Suu Kyi is determined to hold an election that excludes Rohingya voters and candidates,” Adams said. “She knows that real democracy cannot flourish in an apartheid regime imposed on the Rohingya.”

Key Election-Related Issues
Many internationally recognized elements for a free and fair election are missing from Myanmar’s electoral process. International standards include the rights to freedom of expression, association, peaceful assembly, and movement; participation by candidates and voters in an environment free from violence, threats, and intimidation; universal and equal suffrage; the right to run for office; the right to vote and cast a secret ballot; and freedom from discrimination.

Enforcement of these rights requires an effective, impartial, independent, and accountable election administration; equal access for candidates and political parties to state resources; equal access for candidates and political parties to unbiased state media; and an independent and impartial mechanism to resolve complaints and disputes.

Electoral Law Restrictions on Rohingya
Myanmar’s ethnic Rohingya population has been effectively denied the right to vote or run for office. Section 10 of the Election Law requires all candidates to be born to two Myanmar citizens. The 2010 Political Parties Registration Law was amended in 2014 to require that anyone forming or joining a political party be a full citizen. Despite the lack of citizenship, many Rohingya were allowed to participate in Myanmar’s 2010 and 2012 elections.

In February 2015, however, the then-military government announced that temporary registration certificates (“white cards”) provided to many minorities as provisional citizenship documents would expire, revoking their voter eligibility. The decision was aimed at the Rohingya and disenfranchised approximately 700,000 Rohingya, as well as tens of thousands of ethnic Chinese and Indians.

Many Rohingya candidates have been barred from running in the election under section 10 of the Election Law because authorities say they cannot prove the citizenship of their parents when the candidate was born. They include Abdul Rasheed, a Yangon resident whose father was a civil servant and who was born and has lived his whole life in Myanmar. Kyaw Min, the chairperson of the Democracy and Human Rights party, one of three Rohingya parties in Myanmar, has also been barred despite having run in the 1990 election and spending years as a political prisoner alongside thousands of other NLD activists and others.

Denial of Internet Access in Conflict Areas
Government-imposed internet restrictions in Rakhine and Chin States will have a serious impact on the ability of voters in the affected areas to access information about candidates, parties, and their positions. On June 21, 2019, authorities ordered a mobile internet shutdown across eight townships in Rakhine State – Mrauk U, Buthidaung, Rathedaung, Ponnangyun, Myebon, Maungdaw, Minbya, Kyauktaw – and Paletwa township in Chin State. The mobile internet restrictions were removed in Maungdaw township on May 2. Despite the upcoming elections they remain in place in the other eight townships, affecting about a million people.

Although the Transport and Communications Ministry announced on June 23 that internet restrictions were provisionally extended only through August 1, 3G and 4G services remain blocked, with only 2G data networks available. The 2G speed is drastically slower and does not allow services such as video calls, emails, or access to web pages with photos or videos, such as those from political parties and news sites. 

On August 1, the Norwegian mobile telecommunications provider Telenor issued a media release stating that the Transport and Communications Ministry had directed all mobile operators to extend internet restrictions on 3G and 4G mobile data services in the eight townships until October 31. Telenor expressed deep concern regarding the lack of “meaningful internet services, and for the impact on civilians.”

Armed Conflict Disenfranchising Voters and Candidates
Armed conflict between government forces and ethnic armed groups in many parts of the country has greatly complicated election planning, campaigning, and the possibility of free and fair elections in many localities. Fighting involving the Arakan Army, an ethnic Rakhine armed group, has prevented the election commission from posting voter lists in several areas across Rakhine State. Much of the administrative infrastructure necessary for carrying out free and safe elections has been dismantled over almost two years of steady fighting.

Decades of armed conflict has led to over 230,000 people living in long-term displacement camps nationwide and hundreds of thousands living as refugees across Myanmar’s border. An additional 200,000 have been displaced since January 2019 due to fighting in Rakhine and Chin States, according to estimates from local groups. Election rules require internal migrants to provide certification that verifies that they have lived in current residence for a minimum of 90 days. This will affect the participation of many Rakhine Buddhists, Chin, and Mro people.

People in parts of Kachin, Karen, and Shan States are unlikely to be able to vote. No voting will take place in Wa State, an autonomous region. The Union Election Commission has said that any necessary partial or whole-constituency cancellations will be made in October, based on recommendations from the military.

Criminal Prosecutions of Critics
Dozens of students have been charged or are facing arrest for offenses that could carry up to two years in prison after they distributed pamphlets and stickers demanding an end to the fighting in Rakhine State and immediate lifting of all internet restrictions. Members of the All Burma Federation of Student Unions said that the authorities charged many of the students under Penal Code section 505(b), while others were charged for failing to give notice of the protests.

Section 505(b) of the Penal Code is overly broad, prohibiting speech that may cause “fear or alarm in the public” and lead others to “upset public tranquility.” The law has long been used against speech critical of the government. Myanmar’s Peaceful Assembly and Peaceful Procession Law requires organizers to give notice to the authorities 48 hours before holding a protest or assembly. The law carries a maximum penalty of three months in jail and a fine. 

Htay Aung, an independent candidate, was charged with sedition under section 124(a) of the Penal Code after he accused Aung San Suu Kyi of misusing public funding to campaign. The charges were filed by a local administrator in Pazundaung township in Yangon. He is being held in Insein Prison.

Unequal Access to State Media; Limitations on Media Freedom
In July, the Union Election Commission announced that political parties would be permitted to deliver electoral speeches and explain party policies on state-owned television and radio stations during the two-month period leading up to the polls. However, the commission had to approve all political broadcasts in advance under overly broad and vague restrictions on what political parties can say, in violation of international standards for freedom of speech.

The NLD government has used state media regularly to promote its policies and deemed successes while the other parties are each given one chance to set out their platform on state-owned broadcast media. At the same time, at least four parties canceled the broadcast of their campaign speeches on state media due to what they said was the commission’s censorship of their speeches.

The Democratic Party for a New Society said it was banned from mentioning the controversial copper mine in Letpadaung and from referring to land rights issues elsewhere. The National Democratic Force party said it was censored from referring to the NLD’s huge current majority in parliament as a one-party system and from calling for a change from the first-past-the-post system to proportional representation. The People’s Party canceled its broadcast after being told to remove statements about creating job opportunities and the need for people to have a sufficient income, according to the chairman of the party. The Union National Democracy Party also canceled its broadcast after censorship by of the content by the UEC.

In September, the election commission chairman, Hla Thein, said he recognized the important role of journalists and media for elections to be free, transparent, and credible. However, persecution of journalists and ethnic media continued. Aung Marm Oo, chief editor of the ethnic Rakhine outlet Development Media Group, is facing charges under the Unlawful Associations Act more than a year after the case was declared “open.” The chief editor of the Voice of Myanmar, Nay Myo Lin, was charged under counterterrorism laws that were later dropped.

The government also issued a directive to internet services providers to block a number of ethnic news outlets, claiming national security concerns and publication of “fake news.” In August, the authorities ordered internet service providers to block the website of Justice for Myanmar, a group of activists working to expose corruption in the military, claiming that it was publishing “fake news.”

An Undemocratic Constitution
Under Myanmar’s 2008 constitution, promulgated by the military after a sham referendum held to ensure the protection of its interests, only 75 percent of seats in Myanmar’s parliament are up for election, while 25 percent of seats in both the upper and lower houses are reserved for serving military appointees. Any party not affiliated with the military must win over two-thirds of the remaining seats to form a majority in the parliament, while military-affiliated parties need to win just over one-third of the seats to obtain an effective majority.

In its 2015 landslide victory, the NLD took 86 percent of all eligible seats in the lower house of parliament. The NLD campaigned on a platform of constitutional reform. However, it was unable to amend the constitution without votes from among the 25 percent of members of parliament appointed by the military, as the constitution requires a 75 percent vote to amend the charter. Efforts since then to remove the military’s veto have failed.

To deny Aung San Suu Kyi the presidency, the military included a provision in the constitution that the president cannot have a spouse or children possessing foreign citizenship. Suu Kyi’s two sons hold foreign passports. Suu Kyi partially circumvented this after the 2015 election by creating a new office of State Counsellor, which she filled, but she remains barred from the presidency.

The All Burma Federation of Trade Unions and the All Burma Federation of Student Unions have called for a boycott of the election until the military-drafted constitution is amended to be more democratic.