Has Myanmar’s Military Overstepped Its Constitutional Role by Undermining the Integrity of the Election?

By The Irrawaddy 30 January 2021

Ye Ni: Welcome to Dateline Irrawaddy! Myanmar’s military (or Tatmadaw) has alleged fraud in the November election, and the Union Solidarity and Development Party (USDP) has filed a complaint with the Supreme Court of the Union about the election results. Meanwhile, the incoming Parliament will be in session soon. We will be discussing what could happen if Tatmadaw and the USDP boycott the Parliament. U Sai Ye Kyaw Swar Myint, executive director of People’s Alliance for Credible Elections (PACE), and legal advisor U Tin Than Oo join me for the discussion. I’m The Irrawaddy Burmese editor Ye Ni.

Almost all election observers concluded that the Nov. 8 election was free and fair, though there were initial criticisms about flawed electoral process including voter list errors. The Tatmadaw has issued more than 20 statements that there could have been irregularities due to flawed voter lists. In addition, the USDP and the Democratic Party of National Politics have filed a complaint with the Supreme Court of the Union about alleged irregularities. Ko Sai Ye Kyaw Swar Myint, you election observers have concluded that the election was free and fair. Do the accusations of the Tatmadaw make you believe you need to review your conclusion? How valid are its accusations?

Sai Ye Kyaw Swar Myint: In fact, this has to be handled by the Union Election Commission (UEC). We wouldn’t need to be discussing this issue if the UEC had disclosed information and explained things publicly from the very beginning.

Here, first, I would like to make myself clear that I am not trying to defend the UEC or the party that won or the election results. I am just speaking on behalf of sustainable democracy because elections are an important part of the political process.

First of all, in the run-up to the election, Myanmar’s electoral laws have some weaknesses, and do not meet democratic norms. Since 2010, we have pointed out that electoral laws do not meet democratic norms because they are designed based on the 2008 Constitution. And they have not been changed. We always point out that there will be weaknesses if the elections are held under the existing electoral laws.

Election day is also important. We did not find systematic fraud that could change the overall results of the vote. There might have been weaknesses in individual polling stations. But in all the 315 constituencies, we didn’t see systematic rigging that could make a particular party or particular candidates win or lose. Though there are certain shortcomings against democratic norms, we can say the results were credible. So, we accept the election results and must proceed.

In the 2010 election, there were cases in which a political party was leading the count, then early votes arrived during the night, and another party emerged the winner the following day. There were no such irregularities in November 2020. The issue under discussion was the weaknesses in the electoral framework. But I don’t want anyone to link those weaknesses with the voting results. I want them to accept the voting results. The winning party must also recognize the weaknesses in the electoral framework and think about how to fix them for the next election.  They must think about how to form the election commission, how to compile accurate voter lists, and how to create a level playing field during campaign period. They should think about those two issues separately. If they link those two, we won’t be able to move forward.

YN: The Tatmadaw has called on the government, the UEC or outgoing parliamentarians to prove the November election was free and fair, saying it is difficult for it accept the results unless it is proven. The UEC responded that it would hear the complaints. The Supreme Court of the Union is also preparing to hear the USDP’s application for Writ of Mandamus. The newly elected parliament will convene next month. If the Tatmadaw and the USDP boycott the incoming parliament, won’t there be difficulties forming a government. What is your view, Ko Tin Than Oo?

Tin Than Oo: The Tatmadaw’s statements serve as proof of its interference in the country’s politics. Under existing laws, the Tatmadaw has nothing to do with those things.

The military-drafted 2008 Constitution does not say the Tatmadaw has the authority to check voter lists. But in its statements, the Tatmadaw said it scrutinized voter lists. The Tatmadaw itself is going against the law and the Constitution. When we speak of the Tatmadaw, we mean Tatmadaw leadership. Their acts blacken the image of the Tatmadaw, and go against the duties of the Tatmadaw.

On Jan. 29, the Supreme Court of the Union will conduct an initial hearing on whether to accept the election complaint [filed against the President and UEC chair]. About the writs, Article 378 (a) of the Constitution says the Supreme Court of Union can issue writs only when there are issues about fundamental rights and duties of citizens. It doesn’t say writs can be applied for other issues. So, the court does not have jurisdiction. We will wait and see how the court, which has no jurisdiction to accept the application, will decide.

Thirdly, when Parliament convenes, every lawmaker must attend. The Parliament is only responsible for informing lawmakers-elect when the parliament will convene. If lawmakers fail to attend the parliament, it is their own fault. There is no legal provision that says it can affect the formation of the government.

There are two parts regarding their complaints. First, they alleged that the ruling party abused the authority of its government to influence election results in November election. Secondly, they complained about alleged malpractices of the UEC. They are taking the wrong approach. There are laws in place that detail how the President and Union ministers can be impeached and in which courts they are to be impeached.

We, from the legal perspective, must ask why they are creating problems without applying the appropriate laws and why the government is not doing anything in response. No individuals and organizations should be allowed to rig the votes. There might have been some errors. If the Tatmadaw and other parties want to complain about those errors, they should do so in line with relevant laws.

YN: The Tatmadaw said that they are responsible under the 2008 Constitution to ensure a free and fair election. They said the Tatmadaw, which takes the political leadership role, have the authority to make sure the election is democratic, free and fair under the 2008 Constitution. Anyway, this problem is undermining civil-military relations and leading to a political crisis.  As Ko Sai Ye Kyaw Swar Myint suggested these problems could have been avoided if the UEC had explicitly addressed the issue. The UEC is only preparing to hear the complaints according to electoral laws. I remember that there were disputes between the UEC and the election monitoring groups before the November election. To make matters worse, it burned the election-related documents and ballot papers of the 2015 election, which drew criticism.

There is a saying that an organization always reflects the character of its leaders. Let’s take a look at UEC chairman U Hla Thein. Ko Sai Ye Kyaw Swar Myint, you have often seen him. What kind of person do you think he is? Is he a stubborn bureaucrat or someone who always does things by the book?

SYKSM: As I’ve said, these problems could have been alleviated if the UEC had been transparent. But the Tatmdaw can’t interfere simply because of the UEC’s lack of transparency. We can’t accept such interference in a democratic transition. But at the same time we don’t deny that the UEC has some responsibility. There is a need to see these two things separately.

Speaking of the UEC, it is over-focused on laws and procedures, and it barely goes beyond procedures in its operations. It is too legalist. It only acts in accordance with law.

The electoral process is not just a legal process. It is directly linked with political process. If people have more trust in the electoral process, they will have more trust in elected lawmakers. And there will be greater legitimacy for the elected government. The commission fails to take this connection into account. There are things that need to be done from political perspective outside the legal framework. The UEC’s approach to the election was based only on laws and procedures. But as I’ve said there are weaknesses in the electoral laws. I don’t blame the UEC for approaching things in line with laws. But there is a need to change the laws to meet democratic norms. If laws meet democratic norms, approaching the election in line with those laws is not a problem. Now however, the laws themselves do not meet democratic norms. And because the UEC only acted in line with those flawed laws, the election can’t serve its intended purpose of being a mechanism to solve political problems. Instead, the electoral process itself leads to political problems.

YN: Ko Tin Than Oo, you said the Tatmadaw interfered against the Constitution, but the Tatmadaw said it has the right to do so, as it has the political leadership role according to the Constitution. What is your assessment of this from a legal perspective? Do the Tatmadaw’s actions go against the Constitution or not?

TTO: The 2008 Constitution was designed while the country was under military rule. Under Article 291 of the Constitution, military personnel are also the civil servants. Under the law, any organization that operates on the state funds is a civil servants’ organization.  Civil servant organizations must be dutiful and loyal to the state.

If a civil servants’ organization can point out the shortcomings of government institutions using the excuse of playing national political leadership role, then students’ unions, trade unions and activists should also be allowed to express their views.

But if activists are arrested for expressing their views, we have to say that the same laws should be applied on the military. How many political parties have complained about election results? And are they sure they didn’t commit any fraud before and during the election? There are weaknesses in election laws.  But it is unacceptable for any political party and any organization to create political problems by exploiting those weaknesses.

The Tatmadaw says it is a civil service under the Constitution that it drafted itself. Every civil servant must abide by code of conduct for civil servants. The military must also abide by the defense services act in addition to the code of conduct for civil servants and Constitution. They have designed the procedures in the Constitution. It is legally wrong for them to approach this by means of political instigation instead of by means of Constitution.

I am talking on behalf of no one, but for the sake of democratic transition. The military say they have the responsibility to safeguard the Constitution. If they are to safeguard the Constitution, they must abide by the Constitution. But they fail to follow the Constitution. While there are problems during the democratic transition of the country, the fact that Tatmadaw, as a government institution and armed forces, is taking such a stance undermines its integrity, and its action amounts to political interference. The government must take action against it. But the government just watches and does nothing, and Tatmadaw is therefore taking a mile. The Tatmadaw is meant to protect the country, the people and sovereignty. But it is an organization that has to follow the instructions of the government. It is against the law to interfere.

YN: Thank you for your contributions!

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