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.
(This is the first in a series of statements by the AHRC on the planned general elections in Burma. Next: “Elections without the right to associate”.)
