Posted in Legislative Research on Jun 12, 2018

Periodical free and fair elections are imperative of democracy. It confirms the legitimacy of the government and promotes integrity of the state and its citizens through free and fair elections. Myanmar witnessed the return of parliamentary elections in 2010 after decades of the lack of electoral governance. As a representative democracy is a system where citizens vote for their representatives through elections who can serve their interests on their behalf, it is necessary to have free, fair and transparent elections. The Union Election Commission is established to organize elections and supervise political parties under the constitution. The original Union Election Commission Law 2010 was amended in 2011. And it was replaced by a new law in 2012 which was amended twice in 2015 and 2017.

Formation of Union Election Commission

The president forms the commission with at least five members including the commission chair. If the chair and members are service personnel or under any employment contract, they have to retire from the service. They can no longer accept any other office for salary or emolument. They have to pass the mark of 50 years of age and hold the same qualifications as an MP. But they can not concurrently serve as an MP and be a member of a political party. The law requires them to quit both if it is the case. The president can appoint former supreme court or high court judges or a similar position with minimum experience of five years, former judicial or law officer at region/state level with minimum experience of 10 years, and practicing attorney with minimum experience of 20 years. It doesn’t limit the president to appoint someone who doesn’t fit these criteria. The president can appoint someone whom he/she deems an eminent figure.

The term of the commission is the same as that of the President. Although its term has expired, the existing commission continues to carry out its functions up to the time of the formation of a new commission. The commission chair and members may resign by submitting their resignations in writing to the president. They may be impeached by the president for high treason, breach of any provision of the Constitution, misconduct, disqualifications and incompetence. In this case, the president shall submit his impeachment to the combined house speaker who subsequently forms an investigation body with an equal number of representatives of both chambers. Through investigation, the parliamentary enquiry body must give the president and the accused the right to explain or defend himself/herself in person or through a representative. The combined house speaker on receipt of the enquiry report, present it to the whole house for vote. With the nod from the parliament by two-third majority, the president can dismiss the commission member.

Commission’s political independence

The independence of the commission politically is questionable as its term equals that of the president. The commission and sub-commissions could easily be influenced by the president and the ruling party in holding elections and governing political parties. A new democracy like Myanmar needs independent political institutions. In this regard, the commission’s term should be reconsidered to keep a thorough distance from the presidential changes and the ruling party influence.

And the president alone can impeach the commission chair or members while MPs are not allowed to put forward the impeachment. It almost makes the commission an executive body as there is only limited parliamentary oversight over the commission. It needs stronger parliamentary oversight.

Commission’s financial independence

Although the expenditures of the commission shall be funded through the State budget, the commission has to seek the approval from the cabinet for organization structure and appointments of the office and branches at various levels. It seems that the commission’s financial independence is limited with these requirements to seek permissions in operating its offices.

Commission’s roles and responsibilities

The commission can form sub-comissions with at least three members each at different levels of regions or states, union territory, self-administered division and zones, districts and townships. A strange provision around sub-commission membership, which doesn’t cover Union Election Commission members, in the Union Election Commission Law 2015 is that a member of a sub-commission shall not be a person who was convicted of “political offence”.

The commission has duties of holding and supervising elections, designating and amending the constituencies, postponing and cancelling elections of the constituencies where free and fair elections cannot be held due to natural disaster or security reasons, issuing certificate of recognition as an MP, forming election tribunals to resolve electoral disputes and objections in respect of the person elected and appointed in the leading body of the self-administered division or zones and supervising political parties in accord with the law. The commission can conduct investigation if the minimum of one percent among the original voters of the relevant constituency submit to the commission that they wish to revoke a Hluttaw representative from duty. When the charge is being investigated, the MP concerned shall be given the right to defend himself in person or through a representative. To trigger that constitutional clause, a national law is required to be passed by the parliament. Despite a number of attempts in recent years, the parliament has yet to draft and pass such a legislation.

The resolutions of the Union Election Commission shall be final in dealing with the matters related to electoral procedures, decisions of election tribunals, appeals against orders, revisions and matters carried out in accord with the law relating to political parties. Although the finality clause is understandable, a ruling party’s influence through formation of the commission could result in political manipulation. Lower house constituencies are designated on the basis of township as well as population and upper house on an equal number of representatives elected from regions and states including each representative from self-administer division and zones. Drawing the electoral boundary shall be on decision of the Union Election Commission. It is the process is politically sensitive and also very important to ensure the equal voting power. According to the Code of Good Practice in Electoral Matters by European Commission for Democracy Through Law (Venice Commission), inclusion of independent members such as geographers, social scientists and representatives of political parties and national minorities who must be equally represented on the commission may be the best solution to formation of the commission. The European Commission for Democracy Through Law suggested the parliament to approve its recommendations.

As the commission has the responsibility to implement the election laws and political parties registration law, it also has to deal with the matters related to election campaign and campaign financing. As the commission and its sub-commissions govern political parties in accord with the law, independence and competency of the commission to make fair decisions is in doubt. It is very important that the election commission is independent to ensure sustainability of political parties and free and fair elections.

Independence and accountability

For ensuring sustainability of political parties and effective checks and balances, the commission needs to be independent and also be accountable to different branches of the government properly. The commission law needs a thorough review so that independence and impartiality of the commission is granted as Myanmar seeks to advance its new democracy.