Contact: In Atlanta, Soyia Ellison, soyia.ellison@cartercenter.org
In Yangon, Frederick Rawski, frederick.rawski@mail.cceom.org or Meaghan Fitzgerald,mfitzgerald@mail.cceom.org
ATLANTA - The Carter Center election observation mission has deployed field teams to observe the electoral campaign, which officially started on Sept. 8. The first week of campaigning, as observed by the Center in three states, was peaceful, and parties report being able to conduct their campaign activities without significant difficulty. The Center remains concerned that strict enforcement of campaign regulations, and recently announced limitations on political speech, could have a negative impact on pre-election political space.
The Carter Center also monitored the candidate nomination, scrutiny, and appeals process, including meeting with election commission officials and disqualified candidates. Overall, the process facilitated the registration of a large number of candidates across a broad range of political parties. However, candidate scrutiny lacked due process in some districts, and disqualification of candidates had a disproportionately negative impact on ethnic and religious minorities, in particular on Muslim candidates. Commendably, the Union Election Commission (UEC) intervened and reinstated some candidates, including some from minority groups. Not all such cases were reviewed, though, and almost all Muslim candidates in Rakhine state remain disqualified.
Candidate Scrutiny Process
When the candidate nomination period ended on Aug. 18, election sub-commissions had received 6,189 candidate nominations representing 93 political parties and 313 independent candidates.[1] District election sub-commissions subsequently "scrutinized" nominees to ensure that they met the legal requirements for candidate eligibility. In total, 99 nominations were rejected – most for failure to meet the citizenship, age, and residency requirements.[2] Although the number of disqualified candidates is relatively small, restrictive requirements, selective enforcement, and a lack of procedural safeguards call into question the credibility of the process.
The requirements, set out in Article 120 of the constitution and Article 8 of the election laws, that a candidate must have resided in Myanmar for the 10 consecutive years prior to nomination, and be a citizen whose parents were also citizens at the time of his/her birth, are restrictive and not in line with international standards and good practice.[3] Proving the citizenship of parents – particularly in Myanmar where people have historically had difficulty obtaining identity documents and where citizenship itself has been redefined multiple times – can be an onerous task. Sub-commissions at the district and state/regional level strictly enforced the citizenship provisions of the law in certain cases, including cases in which a candidate and his or her family had previously been subject to multiple citizenship verification processes[4] or the candidate's parents are in possession of Citizenship Scrutiny Cards.[5] In at least two cases, the disqualified candidates had already served in the legislature (though one was subsequently reinstated by the UEC).
The pattern of disqualifications by the district level sub-commissions indicates that citizenship requirements have been more strictly enforced against certain ethnic and religious populations. Of the 61 disqualifications for reasons of citizenship, a majority were candidates from Muslim or ethnic parties, or were independent candidates of south or east Asian descent. Five of the six political parties fielding mostly Muslim candidates, including those representing Rohingya and Kaman, lost more than half of their candidates, and at least two Muslim independent candidates were disqualified.[7] Multiple sub-commissions acknowledged that not all candidates were equally scrutinized on citizenship grounds and that sub-commissions sought to identify individuals for scrutiny based on indications of foreign ancestry in application documents, or at times, physical appearance alone.
Both the initial scrutiny and the appeals processes lacked adequate due process safeguards. This was particularly evident in relation to the determination of citizenship. Immigration officials played a role in determining residency and citizenship, though election officials provided contradictory explanations about when, how, and upon what basis those determinations were made. Documents establishing the citizenship status of a nominee's parents are not requested at the time of application. Candidates were not generally given the opportunity to be present and defend themselves on appeal, and the appeals process overall lacked uniformity, with sub-commissions taking different approaches. The Yangon region and Rakhine state sub-commissions, for instance, conducted only paper reviews of district sub-commission decisions and did not have clear procedures for notifying appellants.[8] Of 67 appeals to the state and regional election commissions, 10 candidates were subsequently registered, but only one disqualification based on citizenship was overturned.
According to international standards, individuals are entitled to have decisions affecting fundamental rights taken by a competent, independent, and impartial tribunal in a fair and public hearing.[9] As election sub-commissions are partially composed of state administration officials, and as no appeal of their decisions to a court is possible, decisions to reject candidacy were not taken or reviewed by a tribunal.
Union Election Commission Review of Candidate Disqualification
The UEC chose to exercise its authority under Article 53 of the election laws to review decisions of lower-level commissions for 18 disqualified candidates. The UEC decided that 11 of the disqualified candidates are eligible and should be registered, including 10 candidates that were disqualified on citizenship grounds. The UEC's review of disqualifications is a commendable measure. However, the UEC has not explained why other cases were not reviewed or what the determining factors were in the decision to reinstate or not reinstate the candidates reviewed.
At least seven of the reinstated candidates are Muslim, although only one is from the 22 initially disqualified in Rakhine state. The disqualification of almost all Muslim candidates running in Rakhine state further limits representation possibilities for the Rohingya population, already largely disenfranchised by the cancellation of voting rights for former temporary citizenship card holders. Of the five political parties fielding mostly Muslim candidates in Yangon, only the National Solidarity Congress Party had candidates reinstated.
Although the state/regional sub-commission is the first and only level of appeal in most candidate registration cases, the UEC is the appellate body for those rejected to run for seats reserved for ethnic minorities. Notably, the UEC did hear the appeals of three prospective candidates whose nominations to run in the elections for ethnic seats in state and regional parliaments were rejected.[10] In formal hearings open to observers, the UEC overturned the sub-commissions' decisions and found that neither the constitution nor the election laws imposed an ethnicity requirement that would prevent the candidates from contesting.
Campaign Environment
The first week of the campaign period was generally subdued, with larger political parties – particularly the United Solidarity Development Party (USDP) and National League for Democracy (NLD) – holding campaign events and processions outside of Yangon. Carter Center field teams observed campaigning in Kachin, Kayin, and Shan states. These campaign events and rallies were peaceful and without incident. Political party representatives continue to express their commitment to abide by the code of conduct, and Carter Center observers have not observed any obvious violations to date. However, The Carter Center has learned of a limited number of complaints that have been filed alleging campaigning before the official campaign period and other violations of campaign rules.
To date, it appears that parties have been able to conduct their campaign activities freely, despite an overly restrictive requirement under the UEC's political party campaign directive that candidates seek pre-approval for public gatherings, processions, and the use of loudspeakers. The requirement to apply for permission rather than to notify authorities is an undue restriction on the freedom of assembly.[11] The directive requires candidates to submit detailed campaign plans no later than 15 days after their registration. Strict adherence to this requirement has been hampered by the fact that candidate lists were only finalized four days before the start of the campaign period, though some election officials have indicated that they would be flexible in the enforcement of these provisions. Independent candidates and smaller parties have expressed concern about their capacity to submit detailed plans, with some choosing to forgo public rallies entirely in favor of smaller meetings or social media campaigns.
A recent announcement regarding political party access to state media is of significant concern. On Aug. 27, the UEC, which is responsible for arranging free air time on state media, announced that political parties must apply for permission seven days in advance to give a speech on state television or radio, and scripts of speeches must be pre-approved by the UEC in coordination with the Ministry of Information.[12] The announcement included restrictions on what political parties can say in television and radio speeches, including broadly worded prohibitions on statements that defame the military, encourage "protest against the government," or damage security, rule of law, and tranquility. These prohibitions, together with the requirement to have campaign speeches approved in advance, constitute a serious restriction on freedom of expression and are likely to increase self-censorship.[13]
Political parties continue to raise concerns about potential manipulation of the advance voting process, especially advance voting conducted at military installations. The UEC has not yet issued regulations regarding observation of this process, including the observation of the casting of ballots by military, police, and civil servants.
Recommendations
Government of Myanmar
Union Election Commission
Political Parties
Background
Following visits by President Carter in April and September 2013, The Carter Center established an office in Yangon in October 2013 at the invitation of the government of Myanmar. Between December 2014 and July 2015, the Center conducted a political transition monitoring mission to make a preliminary assessment of the pre-election environment. The Center released two monitoring reports with recommendations (March and August 2015).
The Union Election Commission invited The Carter Center to observe the 2015 general elections on March 30, 2015. On Aug. 1, the Center officially established an election observation mission and requested accreditation. The election observation mission is composed of a four-person core team based in Yangon and six long-term observers deployed to the states and regions. The long-term mission will be reinforced by a larger delegation of short-term observers that will arrive on Nov. 3.
The Carter Center is assessing Myanmar's electoral process against the domestic electoral legal framework and against international obligations derived from international treaties and international election standards. The Carter Center, as an independent observer organization, will inform Myanmar's authorities and people of its findings through the release of a preliminary statement of findings and conclusions shortly after election day, followed by a comprehensive final report in the months following the polls.
The Carter Center's observation mission is conducted in accordance with the Declaration of Principles for International Election Observation and Code of Conduct for International Election Observation. Adopted at the United Nations in 2005, the Declaration of Principles and the accompanying Code of Conduct provide guidelines for credible international election observation. The declaration has been signed by 50 organizations. View the Declaration of Principles for International Election Observation and Code of Conduct for International Election Observers
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1. These figures include candidates for both houses of the Union parliament, as well as state and regional assemblies.
2. According to the UEC, 61 nominations were rejected for citizenship-related reasons, 12 for failing to meet the age requirements, and 8 for failure to meet residency requirements. Other reasons included inaccurate or duplicate party affiliation, failure to show proof of retirement from a civil service position, and providing false information.
3. Paragraph 15 of the U.N. Human Rights Committee (UN HRC) General Comment to Article 25 of the International Covenant on Civil and Political Rights (ICCPR) states, "Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation." The Venice Commission's Code of Good Practice in Electoral Matters pt. 1.1.c.iv recommends that where residency requirements for voting or candidacy exist, "the requisite period of residence should not exceed six months."
4. Based on the 1982 citizenship law, a nationwide citizenship verification process began in 1989. Those who went through the verification process were issued Citizenship Scrutiny Cards if they were found to be full citizens (as opposed to associate or naturalized citizens – those who acquired citizenship status in their lifetime or were not born to two citizens, including one full citizen). Identity cards issued previously could not be used as proof of citizenship, although bearers were regularly treated as citizens by the government. Additional citizenship verification was also conducted at various times, including for those that sought civil service positions, joined the military, or wanted to study law, medicine, engineering, or other professions.
5. Multiple candidates informed Carter Center observers that they and their parents have Citizenship Scrutiny Cards. One disqualified candidate showed observers copies of government-issued documents stating that his parents and all grandparents were born in Myanmar, which apparently proves that he meets citizenship requirements. However, the candidate's appeal was rejected by the Rakhine state sub-commission.
6. U Shwe Maung, a Rohingya politician and USDP member of the Lower House, applied to run as an independent candidate in Maungdaw Township in northern Rakhine State. Daw San San Myint, a member of the Yangon Regional Parliament, applied to run on behalf of the New National Democracy Party. Both were elected in 2010. Daw San San Myint was ultimately reinstated by the UEC.
7. The Democracy and Human Rights Party and National Development and Peace Party, predominantly Rohingya parties fielding candidates in northern and central Rakhine, had 15 and 7 candidates disqualified respectively – the largest number of disqualifications for a single party.
8. More than two-thirds of disqualifications occurred in Yangon region (34) and Rakhine state (29).
9. Universal Declaration of Human Rights (Article 10) states, "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations...." See also the ICCPR (Article 14.1). U.N. HRC General Comment 32 notes that a tribunal must be independent of the executive branch (para 18). Although Myanmar is not yet a party to the ICCPR, the authorities have stated their intention to conduct elections in line with international standards.
10. The nominations were rejected on the grounds that the father of the candidate was not of the ethnicity of the reserved ethnic seat that they sought to contest. The sub-commissions had based their original decisions on a UEC instruction that the father's ethnicity should be used when determining which voters are eligible to vote for an ethnic seat. The UEC ruled that the instruction did not apply to candidate eligibility. As a result, the three appellants will now be able to run as candidates for the ethnic seats but will be ineligible to vote in the election for those seats. They will remain eligible to vote in the other elections.
11. General Comment No. 25 to the ICCPR (para. 12) states: "Freedom of expression, assembly and association are essential conditions for the effective exercise of the right to vote and must be fully protected." The OSCE/ODIHR and Venice Commission Guidelines on Freedom of Peaceful Assembly recommend that any "legal provision should require the organizer of an assembly to submit a notice of intent rather than a request for permission."
12. There is no provision for free airtime for independent candidates.
13. Article 19 of the ICCPR and the accompanying General Comment No. 37 state that any restriction to the right to freedom of expression shall be narrowly defined and for the sole purpose of respecting of the rights or reputations of others or protecting national security or public order, or public health or morals. Further, General Comment No. 37 states, "A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution."
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