[This article is compiled from a series of statements issued by the Asian Human Rights Commission: AHRC-STM-059-2010; AHRC-STM-063-2010; AHRC-STM-065-2010]
Elections without a judiciary
One of the basic prerequisites of a fair election is that agencies exist which are responsible for settling disputes that arise before, during and afterwards. These disputes take many forms, and are a normal part of electoral politics. It is essential that well-prepared institutions can address these disputes within rules that are clearly set down and understood in advance, and can resolve disputes over the rules themselves.
Electoral commissions can perform some of these tasks. When functioning effectively, an electoral commission can secure party compliance with rules designed to ensure a fair election, and can greatly improve public confidence in the outcome. But when disputes rest on problems arising from the rules themselves, on fundamental problems of law, it is the judiciary that must decide.
Just as a competitive football game cannot be played without an umpire, an election cannot be run fairly without a judiciary with the capacity to consider and rule on problems of law arising from the electoral process. Where such a judiciary does not exist, it is needless to ask whether or not an election can be fair.
Therefore, it is irrelevant to begin any discussion about whether the elections that the military government of Burma is planning for later this year can be fair. The country has no judiciary capable of performing the function required of it to ensure fair elections. Without it, disputes arising in the process, like during the football game without an umpire, cannot be resolved to the satisfaction of either the parties involved, or the public.
If this plain fact in any way needed to be proven, then it has already been by way of an application from the National League for Democracy to the Supreme Court during March. This party won 392 out of 485 seats in the 1990 election, which some observers have mistakenly described as fair, because the military government did not manipulate the counting of votes itself. But the outcome of the election did not result in the league being entitled to form a government, because then—as now—there was no judiciary capable of enforcing results.
On 23 March 2010 the NLD submitted a miscellaneous civil application to the court under the Judiciary Law 2000 and the Specific Relief Act 1887. The league asked the court to examine provisions of the new Political Parties Registration Law 2010 that prohibit convicted serving prisoners from establishing or participating in political parties.
Whereas the 2008 Constitution prohibits convicted prisoners from being members of parliament, the new law prohibits these persons from being involved in a political party. As the NLD has hundreds of members behind bars—and hundreds of others who could be detained, prosecuted and convicted at any time—its concern over these provisions is obvious. Therefore, it approached the court for an interpretation of the law: that is, it sought to clarify a fundamental question on which the whole electoral process hinges.
According to the NLD, the application did not even go before a judge. Instead it was returned by lunchtime on the same day with an official giving the reason that, “We do not have jurisdiction.” The party has since submitted a special leave to appeal by way of a letter to the chief justice, pointing out that it is illegal to return an application without even stamping and registering it in the court records. No details are yet known about the progress of this latest attempt.
In some countries, courts without effective authority over matters that are technically within their domain go through the pretence of hearing and deciding on these things at least to impress on the government and public that they are cognizant of their responsibilities, even if they cannot carry them out, and still have a degree of self respect that requires the keeping up of appearances. But the courts in Burma, or Myanmar as it is officially known, have lost even these minimal qualities of a judiciary. It is nothing strange for their personnel that the planned electoral process is beyond their authority. Indeed, it would be far stranger for them to think that they would actually have any authority over actions of the executive.
The refusal of the court to hear the application concerning the Political Parties Registration Law will affect some parties more than others. It evidently contributed to the NLD’s decision at the end of March not to register and instead to engage in social work for the foreseeable future. It will also directly affect the second-placed party in the 1990 election, the Shan Nationalities League for Democracy, whose chairman and general secretary are, among other party members, serving lengthy sentences for their political activities. The Asian Human Rights Commission has previously issued appeals on their cases (AHRC UA-017-2007), and the United Nations Working Group on Arbitrary Detention has opined that their imprisonment is arbitrary (Opinion No. 26/2008, A/HRC/13/30/Add.1); however, to date they remain in jail.
But ultimately the refusal of the court goes beyond questions of the damage to specific parties and individuals and to those concerned with the wider conditions in Burma inimical to electoral process. As the Supreme Court’s own personnel admit that it does not have jurisdiction to consider the terms of the laws under which the proposed elections will be held, and that they cannot accept applications to examine the legal parameters of these laws with reference to other existing laws, then Burma is set to have elections without a judiciary. Such elections, like the football game without an umpire, cannot be fair. In fact, they cannot be anything but farcical.
Discussion and analysis about the planned elections should not be lost in the myriad technicalities of laws-by-decree, rules and electoral procedures that the regime has and will continue to introduce so as to push Burma towards outcomes that are amenable to its interests. Although all these are relevant, they are subsidiary to the basic problems that arise from the absence of any meaningful institutions for the conducting of fair elections.
In this respect, the elections are at least an opportunity for much more deeper and purposeful discussion about the utterly degraded conditions of state institutions in Burma that go beyond the immediate issues arising from the planned ballots, and to far longer and bigger problems about how a future society can be built in which, after half a century of violent and defective military rule, people can have some confidence in the work of government and trust in any form of political leadership.
Elections without rights
The government of Burma has set down conditions for the forming of political parties that would have people associate in order to participate in anticipated elections, but nowhere is the right to associate guaranteed. While parties are required to have at least a thousand members to enlist for the national election—500 for regional assemblies—a host of extant security laws circumscribe how, when and in what numbers persons can associate.
The allowance of association without the right to associate is manifest in the Political Parties Registration Law 2010, which contains references to some preexisting laws that prohibit free association. According to section 12, as translated by the Asian Human Rights Commission,
“A party that infringes [the law in the manner of] any of the following will cease to have authorization to be a political party: … (3) Direct or indirect communication with, or support for, armed insurgent organizations and individuals opposing the state; or organizations and individuals that the state has designated as having committed terrorist acts; or associations that have been declared unlawful; or these organizations’ members.”
As in present-day Burma anybody can be found guilty of having supported insurgents, of having been involved in terrorist acts, and above all, of having contacted unlawful associations, the law effectively allows the authorities to de-register any political party at any time.
The case of U Myint Aye is indicative. For founding a local group of human rights defenders and speaking on overseas radio broadcasts about what he saw after Cyclone Nargis, Myint Aye was arrested and accused of a fabricated bombing plot. The military tried and convicted him and two other accused in a press conference during September 2008; in November a court followed suit, handing down a sentence of life imprisonment (AHRC-UAU-018-2009).
More recently, the AHRC has issued appeals on evidence-free cases in which people have been tried and convicted to long terms of imprisonment for having allegedly had contact with unlawful groups outside the country. These include the case of Dr Wint Thu and eight others in Mandalay (AHRC-UAC-011-2010), and the case of Myint Myint San and two others in Rangoon who were convicted for allegedly receiving money from abroad that was for the welfare of families with imprisoned relatives (AHRC-UAC-137-2009).
The new party registration law is hostile to democratic government because it envisages the arbitrary use of draconian provisions to prevent people from associating freely. It is a law to ensure that only persons and parties palatable to the military regime will be able to run for and obtain office.
But it also points to a far deeper problem. The very concept of a right, in terms of international standards, is neither recognized nor understood by the government of Burma. That the right to associate does not exist is not merely a consequence of a law designed to deny it. It is a consequence of a political and legal regime that does not contain rights within its conceptual framework at all.
This was not always the case. In 1950s Burma, rights were a central part of how national leaders sought to shape government and society. The courts also strongly supported citizens’ rights against the state through a robust constitutional framework. But after the military took full power in a second coup, during 1962, rights became “socialist”.
According to this notion of rights, the interests of the people and the state were aligned against the capitalists. Under “socialist rights” the very idea that a citizen might have a right to claim against the state was absurd. Individual agents of the state could violate citizens’ rights, but the state itself could never do wrong. The right to associate in this time was therefore always a “right” to associate with and through the organs of the state, not apart from them.
After 1988 the socialist concept of rights also ceased to exist, but it was not replaced with anything else. The new state in Burma was right-less, constitution-less, and also law-less in the sense that all laws in the last two decades have been issued as executive decrees rather than through any legislative process. Anything described as a right in this time has in the official view been no more than an entitlement bestowed upon all or part of the population, even if it may be described otherwise.
The 2008 Constitution has confirmed the absence of rights from the normative frame of the new state. At every point it negates and qualifies so-called statements of rights, including the right to associate. Under section 354, citizens have a “right” to form associations that do not contravene statutory law on national security and public morality: which as shown above can be construed to mean literally anything.
The military regime in Burma evidently expects the new constitution and new elections together to be taken as indicators of social and political change. But the passing of a constitution does not signify that rights exist, and nor does the holding of elections signify democratic renewal.
After 52 years of almost unbroken army rule, Burma is today not only without a judiciary, but also without the conceptual frame of rights that are requisite for a fair electoral process. Lacking these, what remains can only be characterized as the politics of despair.
Elections without speech
When Burma’s military government passed five new laws and four bylaws during March in preparation for the planned elections, it attracted a lot of interest, discussion and analysis in the global media. The only place where the media did not pick up the story was in Burma itself. Aside from official announcements in the turgid state mouthpieces and some articles in news journals iterating the facts, there was no analysis, commentary or debate.
The absence of debate was not because the persons writing and publishing these periodicals did not want discussion, or even try to have some. According to various reports, journalists have interviewed experts and obtained views that they had thought would be printable. But instead, journals have so far been prohibited from covering anything significant about the laws at all, or the parties now registering for the upcoming ballot. The absurd situation exists of an election having been announced and the process of party registration begun without anything other than formal acknowledgement of these facts in the local media.
Burma is a difficult place to be a reporter. The Asian Human Rights Commission has itself over a number of years taken up and followed cases of journalists and others who have been imprisoned for acts that in other countries are simply taken for granted, such as filming people at electoral booths during the 2008 referendum (AHRC-UAC-040-2009).
But the blackout on news about the electoral process is not merely a question of media freedom. It is indicative of far deeper dysfunction that prohibits the possibility of free or fair elections. The problem is not just one of how journalists can communicate with their society but how their society can communicate with itself.
The vitality of a society depends upon its capacity for internal communication. It is no coincidence that the most successful and happy societies in the world today are where people can communicate with one another, freely and equitably. Internal communication is not about the number and size of television stations or political parties. It is about the extent to which everyone is able to communicate with everyone else, the extent to which there is widespread participation and sharing of ideas from different quarters, with which to grow and improve as a community.
In recent years, the Internet and mobile technologies have brought about many new opportunities for this sort of communication, and it is not surprising that the military regime in Burma has only slowly and reluctantly opened up the country to them, with severe warnings to users who transgress vague laws on usage. Today Internet cafes around the country carry warnings on their walls and above computers that users are not to access either political or pornographic websites. In Burma, politics and pornography are indeed analogous.
Where internal communication is blocked for a long time, as it has been in Burma, it brings about all sorts of deep psychoses hidden under the surface of day-to-day life. As different parts of society are not able to communicate openly with each other, problems build up and fester. Tensions may emerge that are a consequence of other aspects of life about which people can do nothing. They become deeply frustrated and angry, and occasionally the frustration and anger burst out suddenly on a very large scale, as during the nationwide protests of 2007. At such times, when the authorities use force to bring people back under control the problems are again submerged and worsened.
Under these circumstances, the type of controlled communication that the military regime in Burma envisages for the anticipated elections is not a form of communication at all. It is a mere contrivance aimed at a different type of social control from what came before. This is obvious from reading Burma’s print media: when officialdom says it is now okay to publish cartoons, everyone publishes cartoons; when officialdom says that it is now okay to comment on new political parties, everyone will comment. In this way, the government hopes to construct a wall of its own opinions in which the public will be a mere onlooker and recipient of fabricated, sanctioned views.
The jerking puppet-like responses of private media outlets to the instructions of the government on the upcoming elections and manifest lack of commentary are merely manifestations of much deeper afflictions. Artificial debate will, of course, do nothing to address or ease these. In fact, it will only make them worse. Until there are enough opportunities for open communication about the psychological illnesses that society has contracted from decades of military rule, the possibility of some kind of democratic government emerging in Burma is zero. Under these conditions, the only type of politics that can be practiced, the only type of politics possible is the politics of demoralization, the politics of despair.
