The junta-appointed election body of Myanmar led by former major general of the military U Thein Soe has published a report titled “Findings of the Investigation into Electoral Fraud and Irregularities in the 2020 General Election.”
The report is without front matter, so it is not known when it was published. It came to light only after reports spread that the regime had distributed copies of the report to Buddhist monasteries earlier this year.
The report attempts to justify the junta’s allegations of voting irregularities in the 2020 general election, citing figures, charts and photos. However, far from convincing voters, the report has only raised doubts as to the motives of the junta-appointed election body.
After declaring a state of emergency following the coup, the military reconstituted the Union Election Commission (UEC), appointing U Thein Soe as its chairman.
U Thein Soe served as the judge advocate-general under the previous military regime, and was the chairman of the inaugural election body formed under the army-drafted 2008 Constitution to hold the general election in 2010, the first election in 20 years since the 1990 poll.
The election was held at a time when the country had no access to freedom of speech or press freedom, and political parties were severely restricted from campaigning and rallying.
The international community said the election lacked credibility because local and foreign observers were barred from covering the voting, the commission lacked transparency, there were restrictions in electoral complaints procedures, and because of early votes that only arrived after polling stations were closed and changed the election results.
It is questionable whether U Thein Soe, who supervised a rigged election, has the credibility to investigate whether there was electoral fraud in the 2020 election.
In its report, U Thein Soe’s commission repeatedly claimed that the election body under the National League for Democracy (NLD) was not independent because it was influenced by President U Win Myint, region and state chief ministers and NLD lawmakers.
The fifth point of the five-point roadmap of the regime’s governing body, the State Administration Council (SAC), says “Upon accomplishing the provisions of the state of emergency, free and fair multiparty democratic elections will be held in line with the 2008 Constitution, and further work will be undertaken to hand over State duties to the winning party in accordance with democratic standards.”
This clearly shows that the military always intended to cancel the results of the 2020 general election and hold a new election. U Thein Soe’s commission was apparently formed to serve that purpose, and the independence and justice of his commission is thus in question.
The report cites the failure of the NLD government, the Union Parliament and the NLD-appointed election body to address the complaints submitted by the military about errors in voter lists as a major reason for its decision to seize power and declare a state of emergency.
Regarding the electoral complaints, the policy of the NLD was that concerned candidates were to resolve disputes through the Election Commission; the policy of the election body was that it does not accept complaints from third-party organizations, and complaints would have to be submitted by concerned candidates in line with election laws.
Those policies comply with provisions in the 2008 Constitution and election laws. U Thein Soe himself had assumed the same stance as UEC chair at the time of the 2010 election.
A few days after the 2010 general election, the National Democratic Force (NDF) formed by Dr. Than Nyein and U Khin Maung, who had split from the NLD, announced that the party would call on authorities to address unlawful early votes and electoral irregularities in the poll.
In response, the election body released an announcement signed by then chairman U Thein Soe. The announcement said if an objection was to be raised about the election of a candidate or the credibility of the election in a particular constituency, the complaint should be submitted in line with electoral laws; and that the NDF had violated the ethics and laws for political parties by issuing such a statement.
However, U Thein Soe contradicted himself when he said in the report that the NLD and the Union Parliament should have responded to the voter fraud complaint by the military, which is not a political party.
The report of U Thein Soe’s commission alleges that the election commission under the NLD government sought advice from international organizations in order to deliver victory for the NLD.
U Thein Soe accused the previous commission of amending election laws based on suggestions from the International Foundation for Electoral Systems (IFES) and International Institute for Democracy and Electoral Assistance (IDEA). The commission cooperated with 24 international agencies and signed memorandums of understanding with 12 of them.
The previous commission received financial assistance from international agencies, and was thus influenced by them, the report concludes.
Perhaps U Thein Soe was not aware of or deliberately ignored the fact that the tradition of collaborating with international agencies was established by former lieutenant general U Tin Aye when he headed the UEC at the time of the 2015 general election.
In its report on the multi-party democratic election held by the U Tin Aye-led UEC in 2015, the previous Union Parliament said on page 33—which is found in Chapter 5, on “Cooperation with International Agencies”—that “IFES and IDEA opened offices at the UEC Office and cooperated closely. The IFES provided 18.1 billion kyats and the IDEA provided 2,800 million kyats for the electoral process.”
The report also detailed cooperation with international agencies including the EU, and training and workshops organized by those agencies.
It is in question why U Thein Soe failed to mention in his report the cooperation between the country’s election body and international agencies on the 2015 poll. He also needs to answer this question. If the 2020 general election was not free and fair because of intervention by international agencies, to what extent was the 2010 general election, which was held behind closed doors, free and fair?
National registration cards (NRCs) and voter ID cards
The report of U Thein Soe’s commission claims that the previous commission violated Article 59 of the electoral law by allowing people to cast votes in the 2020 general election with voter ID cards, even though they did not have NRCs, also known as citizenship scrutiny cards.
Here the main question is whether a citizen is allowed to vote if she does not have an NRC.
Section 391 (a) of the 2008 Constitution says that “every citizen who has attained 18 years of age on the day on which the election commences, who is not disqualified by law, who is eligible to vote, and person who has the right to vote under the law, shall have the right to vote.”
Under the existing registration procedures, it is impossible for Myanmar citizens to obtain an NRC on the day they turn 18. And it can be seen that there are many citizens who have not yet obtained NRCs even after they turn 18.
The U Tin Aye-led commission said in its report on the 2015 general election that it counted those who had attained 18 years of age on the day on which the election commenced, and who were not disqualified by law, in the voter lists. When it made the list of such people, the election day had not yet been chosen, so it therefore included those who would be 18 by Nov. 30, 2015. After the election day was announced as Nov. 8, the commission excluded those who were born between Nov. 8 and Nov. 30, 1997 from the voter list, said the report.
U Thein Soe’s commission failed to mention that point and failed to check whether those who had attained the age of 18 but did not hold an NRC were allowed to cast votes with any other documents in the 2015 election.
Section 14 (a) of the Pyithu Hluttaw (Lower House) Election Law, Amyotha Hluttaw (Upper House) Election Law and Region and State Hluttaw Election Law states that “Every citizen, associate citizen, naturalized citizen and holder of temporary certificate who do not contravene the provisions of this Law and are residents in a constituency and have completed the age of 18 years on the day of commencement of election shall be included in the voter list.”
This was an amendment made by the Union Parliament under the Union Solidarity and Development Party government in 2015. U Thein Soe’s commission, however, did not mention a word about this in its report.
It is not that voter ID cards were introduced for the first time in the 2020 general election; they began to be used in the 2015 poll to facilitate the voting process.
The U Tin Aye-led commission said in its announcement ahead of the Nov. 8 election in 2015 that because many voters have the same name, there will be many voter ID cards that bear the same name; but the commission will apply election ink to voters to make sure they cannot vote twice.
U Thein Soe’s commission failed to compare the actions of the 2015 UEC and mention Section 14 (a) of the electoral laws in accusing the 2020 UEC of violating electoral laws by allowing those without citizenship scrutiny cards to cast ballots.
Alleged voter list errors
The report of U Thein Soe’s commission particularly highlighted alleged voter list irregularities. The report claims that there are more than 11 million errors (11,305,390) in voter lists, including multiple appearances by individuals, which could lead to a person voting more than once; and the inclusion of underage persons and those without citizenship certificates.
More importantly, U Thein Soe’s commission has interpreted those 11 million errors as 11 million votes being rigged. Voter list errors are a result of poor management. If the commission is to argue that those errors constitute fraud, it must present strong evidence for how each error could have led to fraud.
For example, suppose a voter list for a constituency included six voters with the same NRC number, but five others were found to be non-existent when inspected. In that case, we can’t call it fraud unless it is proven that the five others cast ballots on election day. If all six voters live in the constituency and they are all recorded with the same NRC number in storing their data on the computer, it is then a technical error.
Similarly, if the same voters appeared in two constituencies, unless it is proven that all or some of them voted in both constituencies, it does not constitute voter fraud.
In the 2020 general election, voter turnout for the Lower House was 71.89 percent, for the Upper House 71.84 percent, and for region and state parliaments 71.06 percent. So, it is wrong to conclude that all the wrongly included voters cast ballots in the 2020 poll.
U Thein Soe’s commission said in its report about electoral offenses in the 2020 general election that there were 546 complaints and 287 cases of electoral violations. The report thus indirectly admits that not all the vote list errors constitute fraud.
The report says that the commission is making a thorough investigation into double or triple voting by the same individuals. But the commission is still unable to provide details about its investigation to date, and unable to prove its claim of multiple voting by tens of thousands of voters.
The most important point is that U Thein Soe’s commission fails to compare the voter list errors of the 2020 general election with those of the 2010 and 2015 polls.
As the 2010 election was held under the tight restrictions of the previous military regime, there was little scrutiny and media coverage of voter lists compiled by the then commission led by U Thein Soe.
However the U Tin Aye-led commission’s announcement to the public about “its actions to ensure the accuracy of voter lists” released on July 6, 2015 said: “After we have published the voter lists according to the experiences of the 2010 general election and 2012 by-election, we found that there were faults and weaknesses in the voter lists. The commission considers that this happened because voter lists were compiled based on outdated statistics, people failed to check voter lists, and time was not sufficient for people to submit correction requests. That weakness can harm the peace and stability of the election.” Given that announcement, it is obvious that there were also errors in the voter lists of the 2010 general election.
In preparing voter lists for the 2015 general election, the U Tin Aye-led commission had compiled preliminary voter lists since May 2014 in cooperation with international and local agencies. Despite this, the voter lists released to the public were riddled with errors, and the commission thus drew widespread criticism, according to media reports at the time.
However, the voter list errors reported by the media then were about errors spotted in some wards. There might have been many more errors if all the voter lists from around the whole country had been checked, the way U Thein Soe’s commission has done.
The flaws at the time ranged from erroneous exclusions of some celebrities and the inclusion of deceased people, to incorrect data like whole villages having the same birthdate. The commission had to publish an article in the July 8, 2015 issues of state-run newspapers to explain the causes of the voter list errors.
Then commission chairman U Tin Aye met local and foreign election observers on Oct. 23, 2015, and promised that no eligible voter would lose their voting rights, no matter how flawed the voter lists were.
The U Thein Soe-led commission’s credibility is in question because it failed to compare the voter list errors of the 2020 general election with those of previous elections, and because of its invalid conclusion that all the voter list errors constituted vote rigging.
The most important point is that U Thein Soe’s commission annulled the results of the 2020 general election with its announcement 2/2021 issued on July 26, 2021, saying that the results were canceled because the 2020 election did not comply with the Constitution, election commission law, and relevant parliamentary election laws and by-laws, and was not free and fair.
The question is whether the UEC has the authority to cancel the results of an entire election.
According to Section 399 of the 2008 Constitution, the UEC is only tasked with holding Hluttaw elections; supervising Hluttaw elections; forming different levels of sub-commissions and supervising thereof; designating and amending the constituencies; compiling lists of voters and amending thereof; postponing elections of the constituencies where free and fair election cannot be held due to natural disaster or due to the local security situation; prescribing rules relating to elections or political parties in accord with the provisions of this Constitution, and procedures, directives, so forth, in accordance with the relevant laws; constituting the election tribunals for trial of disputes relating to the election in accordance with the law; and performing duties assigned under the law.
It is not authorized by the Constitution to cancel the results of entire election, and to hold a new election. Section 10 of the UEC Law, which concerns the “rights and responsibilities of the UEC”, does not grant such authority to the election body.
Chapter 15 of the election law, on “”Delivering judgement on electoral objections”, says, “Objection to an elected Hluttaw candidate may be made to the Commission as prescribed by any challenging Hluttaw candidate or any voter.” A third party such as a political party or the military can’t intervene or raise an objection.
The commission shall form electoral tribunals to examine electoral objections and if the elected candidate is found to be guilty of malpractice, it shall declare the said candidate void, according to the provisions of the election law.
It is therefore obvious that the UEC is only authorized to examine electoral objections, form tribunals and subsequently disqualify elected candidates in individual constituencies upon receiving complaints.
The U Thein Soe-led commission’s wholesale cancellation of the result of the 2020 general election is therefore against the Constitution, the Union Election Commission Law and relevant parliamentary election laws.
Overall, the report of U Thein Sein’s commission is another attempt by him to please the military, much as he pleased it by ensuring electoral victory for the military’s proxy, the USDP, in the 2010 general election. In other words, it is another stain on his character.
Khin Tun is a political analyst based in Myanmar.
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