legal analysis paper from hr aspect on 2010 elections of bnhr_english

8/7/2019 Legal Analysis Paper From HR Aspect on 2010 Elections of BNHR_English

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လူ ႔အြခင္ ့ေအရးျမန္ မာ့ြကန္ယက္Burma Network for Human Rights Legal Analysis from Human Rights Aspect

on Crimes Committed during the 2010 Elections

1

Introduction

1. Compiling voter lists

2. Unfair canvassing

3. Unfair collection of advance votes

4. Voting on behalf

5. Polling situation

6. Unfair favoring

7. Vote counting

8. Announcing vote counts

9. Cases of continued violation of election laws

10. Election objections and prosecutions

11. Non-observance of democratic election principles

12. UN and international statements

Conclusion

Legal Analysis from Human Rights Aspect






2

Introduction

Elections have the tendency to produce governments that win as much popular support as the

election is democratic. All military regimes forcibly and unjustly taking over power always get

toppled by the people. The 8888 mass uprising which deposed the BSPP one-party dictatorship wasstill fresh in memory. Inevitably accepting the multi-party democratic system, the military junta had

to hold an election in 1990 to deceive the people. When people's victory in the election turned out to

be against junta's wish, the latter broke all ratified laws and refused to hand over power to the

winning party, National League for Democracy, thereby becoming a disgraceful and discreditable

junta in the international community.

Apart from announcing the results of 1990 May 27 election in the official government

gazette, the SLORC military regime continuously wrecked all the parliament convening processes.

To abolish the 1990 election results, the junta called a sham National Convention on January 9,

1993. The said convention drafted the 2008 Constitution while Daw Aung San Suu Kyi, opposition

politicians and '88 Generation Students including Min Ko Naing were objected to heavy prison or

house arrest terms. Currently there are more than two thousand political prisoners in prisons all over

the country.

As Burma is a member of the United Nations, it has to observe the clauses of the Universal

Declaration of Human Rights (UDHR). Article 21(1) of the UDHR stipulates that everyone has the

right to take part in the government of his country, directly or through freely chosen representatives

and Article 21(3) says that the will of the people shall be the basis of the authority of government

and that this will shall be expressed in periodic and genuine elections which shall be by universal and

equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Therefore we

have to review and analyze whether the SPDC military regime was able to hold a free and fair

election.

The SPDC regime unilaterally drafted the 2008 Constitution which is unitary in nature, and

forcibly adopted it in spite of Cyclone Nargis damage. The people have no right to know what points

are in the Constitution nor there any briefings or clarifications. Then 2010 election laws and by-lawsfittingly compatible to the clauses of the 2008 Constitution's military rule were published. The SPDC

regime has conducted the election on 2010 November 7 under these laws. That this election can be

put on record as the most unjust and most human rights-violating election among Burma's

multi-party elections is documented as follows.

1. Compiling voter lists

Burma's last census was taken in 1983 March 31 showing the population at 35,442,972. At

the most recent multi-party general election of 1990 May, number of eligible voters was 20,818,313.

The SPDC regime announced that there were 27,828, 827 eligible voters in the referendum for 2008

Constitution. For the current election of 2010 November 7, SPDC Union Election Commission statedthat there are 29,021,608 eligible voters. Since there is no census-taking after 1983, the list above

is very hard to accept as accurate.

In Arakan State Sandoway Township Sinkhaung village, those who could actually vote

numbered a little over one thousand but Township Election Commission's voter list showed more

than three thousand or about twice in excess, candidate U Tin Hlaing Win said.

The Union Election Commission has stated that over twenty-nine million out of a populationof more than fifty-four million in Burma were eligible to vote. (Myat Kyaw, October 26, Irrawaddy)





3

In line of above news report, the voter list showing twice the actual voters was found to be

totally wrong.

People's Assembly Election Law (SPDC Law No. 3/2010) Article 13 says "To elect members

of assemblies, township sub-commissions and ward or village tract sub-commissions must compile

the lists of eligible voters for corresponding constituencies."It was evident that there were no systematic census-taking and no compilation of voter lists

by township and ward/village election commissions in accordance with the said law but

overstatement in voter lists as found in the news. All these acts were committed by all relevant

commissions in violation of key Article 13 right from the beginning.

Union Election Commission's notifications 99/2010, 100/2010 and 101/2010 stated

cancellation of voting in nine, two and seven townships respectively, implying that voter lists in

villages of those townships should have been annulled. Holding the election without exact voter

lists led to incorrect figures and damaged the credibility of polling.

2. Unfair canvassing

(1) Rangoon Mayor Brig. Aung Thein Lin spent Rangoon municipal authority budget collected from taxpayers to campaign and collect advance votes for candidates of USDP during the 2010 election period. (Khitpyaing 2009 March 27)(2) Defense Services Inspector-General Maj. Gen. Lun Maung campaigned in BhamoTownship Pho Deiwa village by giving them cash and gifts. (Mizzima, 2009-04-06)(3) Industry-1 Minister U Aung Thaung gave donations to social and public organizations onvarious pretexts as a canvassing method. (Government news)

Such kind of unfair campaigning by SPDC ministers was in violation of Article 171(b)

bribe-giving and bribe-taking under Section 9-A Election Crimes of Criminal Law.

3. Unfair collection of advance votes

(1) Important facts disclosed from a letter dated November 9, 2010, to Bogalay Township

Sub-Commission Chairman from U Khin Maung Win (People's Assembly candidate of

NDF), U Chit Win Aye and U Ohn Lwin are:

- Advance votes were collected one week before the election in seven urban wards whereas

those who casted advance votes were not qualified for voting in advance.

- A USDP organizer interfered in a polling booth without authorization.

- VPDC member U Myo Win casted advance votes on behalf of twenty Indians and sixty

Burmans of Thahtaygon village at the polling booth in Kyonlut village, Haymarn tract.

(2) Important facts disclosed from a complaint letter dated November 15, 2010, about

advance vote issue to Irrawaddy Division Election Commission Chairman from U Soe Myint

(People's Assembly candidate of NDF for Bassein Township Constituency) are:

- Bassein Glass Factory employees and Education College employees could not freely cast

advance votes in front of polling station chiefs

- Factory employees and education staff were made to cast advance votes not in their

respective township constituencies but at their work sites





4

Such collection of advance votes was evidently unfair, violating the People's AssemblyElection Law (SPDC Law No. 3/2010) Article 43. Using unwarranted influence is liable to

punishment in accordance with Criminal Law Article 171(F), directly prosecutable at the court.

4. Voting on behalf

The following facts are found in U Khin Maung Win and U Soe Myint's complaint letters:

- In Zeegon Township Chaypyomei polling station, headmaster U Myo, polling station in-

charge, scratched ballot sheets for those who asked how to vote

- After Ngwe-saung Beach ward 1 polling station in-charge U Than Soe and five staff closed

the doors of the station, one of them casted ballots for 200 additional voters

- In Thegon Township Moe Kham polling station, U Nyo was found to be voting for his son

Maung Oo

Such voting on behalf is in violation of Election Law Article 43 that prevented voting on

behalf of another person.

5. Polling situation

- According to U Ohn Lwin's complaint to Bogalay Township Commission, the USDP has

interfered in the polling station without authorization; no voter lists were published; those

casting advance votes were not qualified for advance voting; a single man voting on behalf of

his five family members; a nine-year old child voting on behalf of two persons; armed

personnel within 500 yards of polling booth; political parties being active within 500 yards of

polling booth; unreliability of secrecy in voting.

- In U Khin Maung Win's complaint letter, he witnessed a Ma Nay Chi Thwin drawing out

ballot papers twice for People's Assembly and twice for National Assembly at the polling

booth in Thegon Township Kyarni Middle School.

- According to U Soe Myint's complaint letter, at the polling station 1 of Ward PDC 3 in

Bassein University, ballots marked for the NDF were changed into ballots for the USDP after

delivery to vote counter; carelessness in vote-counting; announcing that no vote count results

would be published.

Above factors show violations of Election Law Article 44 which prohibits voting more

than once and of Article 43 which prevents voting through representatives.

6. Unfair favoring

- In Arakan State, the State Election Commission prohibited all parties except the USDP to

hold campaign rallies at religious buildings.





5

The USDP held campaign rallies at Akyab city Tayarsu Ward religious hall on August 30, at

Kyaypingyi Ward religious hall on September 9 and at Thinkha-yadanar Monastery on

September 21. (Narinjara news)

This is in violation of People's Assembly Election Law Article 58 (c) which prohibitscampaigning by exploiting racism or religion. Moreover it also violates Article 82 (d) which

calls for impartiality.

7. Vote counting

- In Ngwe-saung Township ward no. 4 Boo-kwaigyee village polling station no. 2, request to

observe vote-counting was refused by a people's militia guarding its entrance. There were

irregularities in vote-counting. Station in-charge said that there were 63 advance votes but did

not open the envelopes to count, just put them in boxes and took them away.

- According to a complaint letter by U Soe Myint (People's Assembly candidate), there wasno vote-counting in view of public.

- According to U Khin Maung Win's complaint letter, none of the candidates have signed the

Form 19 which acknowledges voting results.

Such failure to count votes in view of public is in violation of People's Assembly ElectionLaw Article 48(b).

8. Announcing vote counts

- In Myanmar Alin newspaper (November 17, 2010) supplementary page Ba Let Chaik, under the heading of 'correction', it called for correction of voting population 152614 as 205785 and

voter turnout 100% as 74.16% for Kyaukbadaung Constituency shown in 13.11.2010 issue of

newspaper supplementary page (b) row 37.

- In the cancellation announcement printed in Myanmar Alin newspaper (November 18,

2010) page 8, it said that Ingyanyan Constituency 2 and Somprabom Constituency 2 was a

cancelled constituency and therefore declarations about U Bran Shawng (USDP) and U Mun

Pawn Nor (USDP) elected respectively for said constituencies have to be revoked.

Such mistaken postings are evidence of inaccurate statistics. Objections came to the forein distrust of votes obtained by the USDP.

9. Cases of continued violation of election laws

- The Election Commission and election candidates are still committing violation of Article

66(d) and (f) under the section of Unlawful Practices by failing to submit campaign expenses.

- In accordance with electoral principles, it should be made public how military members of

parliament are selected.





6

10. Election objections and prosecutions

(1) U Khin Maung Win (People's Assembly candidate from NDF), U Chit Win Aye

(Regional Assembly candidate from NDF) and U Ohn Lwin (National Assembly candidate

from National Politics Alliance League) sent a letter dated November 9, 2010, to BogalayTownship Sub-Commission Chairman on the subject of "Refusing to acknowledge electoral

processes held in Bogalay Township."

(2) On November 12, 2010, National Democratic Force Chairman sent a letter of complaint

to Union Election Commission Chairman on the subject of "To act rightly and lawfully on

unlawful doings during the election."

(3) On November 15, 2010, U Soe Myint (People's Assembly candidate from NDF for

Irrawaddy Division Bassein Township Constituency) complained to Irrawaddy Division

Election Commission about advance voting issue.

(4) NDF candidate Daw Bauk Ja (for Pakant constituency) has sued USDP MP-elect ex-

regional commander Maj. Gen. Ohn Myint.

(5) Independent candidate U Sein Hla is planning to sue USDP MP-elect Health Minister Dr.

Kyaw Myint.

(6) National Assembly candidate U Thein Zaw Nyunt from NDF is planning to sue USDP

Senator-elect U Mya Nyein. (Htet Aung Kyaw, December 21, 2010, DVB)(7) Ko Aye Lwin's party has filed twelve cases at police stations in Pegu Division. (Htet Aung

Kyaw, December 20, 2010, DVB)

The above factors are Election objections and prosecutions.

11. Non-observance of democratic election principles

(1) Contrary to the one-man-one-vote principle, Election Law Article 31 says that ArmedForces Commander-in-Chief must send the list of military assembly representatives as

specified to the commission which would examine and then publish for public knowledge. A

single man, Armed Forces Commander-in-Chief, having the right to select 166

parliamentarians (25%) is a blatant violation of democratic electoral principle.

(2) Transformation of the USDA into a regime party and allowing it to misappropriate all

state finances implies permission of nation's immorality and total desecration of the rule of

law.

(3) Disregard of all international standards and benchmarks for multi-party system, and

enactment of laws favoring only the USDP is a perpetration of criminality.

(4) The most terrible act of untrustworthiness is the violation of its own laws. This has made

it the crown of corruption and swindle among successive governments of Burma.

12. UN and international statements

The UN called for a resolution on November 18 to denounce Burma's election held of

November 7, 2010. Ninety-six countries supported the resolution while twenty-eight opposed with

sixty countries abstaining.

Subjection to such condemnation by world countries is obviously due to total neglect of

people's desire and violations of human rights.





7

Conclusion

The SPDC military authorities did not observe the essential benchmarks recommended in the

International Election Study paper published by the International Human Rights Law Scholars

Organization. It is manifested below.

1. A country holding an election must meet the following conditions:

a. There should be no irrational restrictions upon citizens' right and capacity of

participation in all facets of political process including getting elected for

government authority post and right of secret voting.

b. Freedom of expression and freedom of assembly should be respected in order to

make public election candidates and election plans, and to allow political

persuasion and motivation.

2. Political parties or candidates should enjoy assuming of office and handing over of power

in accordance with obtained votes in support.Without said conditions, an election could not be deemed free and fair.

We believe that the SPDC military regime has violated human rights with a great deal of

prejudice by completely disregarding the Universal Declaration of Human Rights clause 10 which

says, "In determining rights and obligations, hearing must be made before an independent and

impartial court in public view."

Burma Network for Human Rights

Rangoon, Burma

TTTTo contacto contacto contacto contact - [email protected]

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