Posted in Legislative Analysis, Political Institutions on Aug 07, 2019

Free and fair elections are a foundation of political freedom and justice in a democratic system. The rules and procedures for elections are therefore extremely important.

Amendment Bills currently posted to the Pyidaungsu Hluttaw website propose changes to the Pyithu Hluttaw Election Law, Amyotha Hluttaw Election Law and Region/State Hluttaw Election Law. Ahead of the debate on the Bills by lawmakers, it is worth considering the motives behind these proposed changes, especially as the general election draws near.

The Bills represent the fifth of a series of election law Amendment Bills submitted since 2010. In each of three Bills (Pyithu, Amyotha, Region/States) are five amendment clauses. The first amendment clause is to change the title of the law to The Fifth Amendment of the Pyithu, Amyotha, Region/State Hluttaw Election Law.

The second amendment clause is to replace the term “making voter list” by township and ward/village sub-commissions, with “making, changing and adding voter list”. The second clause is likely intended to give more responsibility to township and ward/village sub-commissions to ensure there is a precise voter list.

The third amendment clause is to add “being able to conduct voter education” to the responsibility of Union Election Commission (UEC). Regarding the third clause, it is worth questioning why the clause is included in the Bill, since this could just as well be included as a by-law under existing powers of the UEC.

The fourth amendment clause is to change the current law so that voters can only submit a reasonable complaint (rejection form) that an election has not been free and fair, in their own constituency. Many may consider this a sensible move, as the previous law allowed any voter to make such a complaint about any constituency in the country – creating an avenue for vexatious or politically motivated complaints.

Fifth amendment clause

The fifth amendment clause is concerned with the process for holding by-elections where an MP’s seat becomes vacant (in the event of their death, conviction of a criminal offence, or a successful recall petition, for example). It replaces specific time limits on when by-elections must be held with simply: “the election should be held within the Hluttaw regular session, according to the law”.

This same clause in the election bills has been changed in both first and second Hluttaws, since 2010. While the original 2010 law had no specific time constraints for when by-elections should be held, the 3rd amendment law established that the election should be within 6 months of the Speaker informing the UEC chair of the vacancy, and that a by-election should not be held within 1 year of the end of the Hluttaw (i.e. the forthcoming General Election would provide the opportunity to fill the vacated seat).

In the 4th amendment law, approved at the beginning of the second Hluttaw, the only change proposed was to the by-election clause. The clause was changed again to state that if the vacancy occurs in the first year of the Hluttaw, the UEC has 1 year, rather than 6 months, to hold a by-election. In the second, third and fourth years, the rules were unchanged and the election held within 6 months. This change was introduced by the UEC on the basis that the year immediately following the General Election would be a busy time for the UEC, with the examination of rejection forms from the election, and the formation of various sub-commissions.

This 5th Amendment Bill(s) posted on the Pyidaungsu Hluttaw website, aims to remove any time limit for holding the by-election. In this way it is reverting to the original 2010 law.

Will this amendment support voters?

The series of amendments, during the second Hluttaw, was submitted by the UEC, which should lead us to question the motives behind such a policy change.

When the 4th amendment bill was submitted, UEC explained the objective of submission, citing the busy periods immediately following and preceding General Elections as reasons for imposing the time limits. In this Bill there is a removal of the time limits, which effectively hands the UEC full discretion to hold by-elections whenever they see fit.

Holding a by-election for vacant seats is essential in order that voters from that constituency have political representation in the Hluttaw. The importance of members of the public remaining properly represented in their parliament should be the core consideration when reviewing any changes to by-election rules. Handing full powers to the UEC to determine when to hold by-elections, without clear time limits, makes the UEC less accountable to constituents and risks leaving the UEC open to manipulation for political ends. For example, might a ruling party be tempted to try to influence the UEC to delay, or bring forward, a by-election, in order to manipulate the parliamentary arithmetic in advance of some key vote in the Hluttaw?

Remembering why we amend laws

The purpose of amending laws is to produce better outcomes for society, adapt to change, and ensure all people have representation in their parliament, in accordance with democratic principles. For Myanmar, early in its journey towards democracy, the role of the UEC is very important. The body is responsible for ensuring elections are free and fair, increasing public trust in elections and the democratic political system.

The current UEC is an institution appointed by the NLD whose legitimacy derives from the people. But it needs to be an impartial body, working in accordance with clear rules, in order to be trusted as a guardian of democratic practices.

The proposed change removing time limits for holding by-elections hands power and discretion to the UEC. Clear laws and rules enable the public to hold government institutions like the UEC to account, and this change risks eroding justice in decision-making and will not support the strengthening of the democratic political system.

We might consider it a paradox that an institution like the UEC, which should stand as an impartial and accountable bulwark against those who would seek to unfairly influence our democratic processes, should be proposing changes that place it at greater risk of manipulation.

Hla Myo Kyaw