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Published online by Cambridge University Press: 14 January 2021
The 2015 general elections were considered a hallmark of Myanmar's transition from an authoritarian regime towards a new form of government. However, the elections did not take place in all parts of the country, and significant portions of the population were excluded from the vote, including voters in areas of contested sovereignty, those who experienced displacement by conflict, and the Rohingya. Against the background of the regulatory framework for elections in Myanmar and its electoral system, this article looks first into a particular understudied element of the electoral process—the cancellation or postponement of elections in areas affected by conflict, which is little understood by voters, election administrators, and outside observers. Second, the article examines the conditions necessary for internally displaced persons (IDPs) to participate in elections. Third, the article recapitulates the gradual legal disenfranchisement of voters and candidates who self-identified as Rohingya, which preceded their mass exodus to Bangladesh in 2017. While in 2015 all these processes of exclusion were arguably of lesser priority for the election administration, which facilitated the first credible Myanmar election in decades, they have not altered significantly since and will affect the electoral participation of disadvantaged communities again in the future.
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3 Lidauer, M., ‘The 2015 Elections and Conflict Dynamics in Myanmar’, in Conflict in Myanmar. War, Politics, Religion, (eds) Cheesman, N. and Farelly, N. (Singapore: Institute of Southeast Asian Studies, 2016), pp. 139–161: pp. 142–148Google Scholar.
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8 ‘However, there is profound disagreement among theorists as to which electoral systems are most appropriate for divided societies (…) consociationalists argue that some form of proportional representation is all but essential for divided societies, as this enables all politically-significant ethnic groups, including minorities, to form ethnically-based parties. (…) Centripetalism (argues) to utilise electoral systems that encourage cooperation and accommodation between rival groups, and therefore work to break down the salience of ethnicity rather than foster its representation in parliament.’ Today, many scholars and practitioners of elections recommend mixed systems that are tailored to specific circumstances. B. Reilly, ‘Electoral Assistance and Post-Conflict Peacebuilding—What Lessons Have Been Learned?’, available at http://aceproject.org/ero-en/topics/elections-security/Reilly-2505.pdf, [accessed 12 November 2020]. See also Reilly, B., ‘Elections in Post-Conflict Societies’, in The UN Role in Promoting Democracy: Between Ideals and Reality, (eds) Newman, E. and Rich, Roland (Tokyo: United Nations University Press, 2004), pp. 113–134Google Scholar.
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10 While township boundaries are commonly used as delineators by the central administration, ethnic armed organizations in conflict with the state might use a similar model, but different boundaries to demarcate their territories in areas of mixed control. Compare, for example, Burke, A., Williams, N., Barron, P., Jolliffe, K. and Carr, T., The Contested Areas of Myanmar. Subnational Conflict, Aid, and Development (Yangon: The Asia Foundation (TAF), 2017)Google Scholar.
11 Grace, Jeremy and Mooney, Erin D., ‘Peacebuilding through the Electoral Participation of Displaced Populations’, Refugee Survey Quarterly, vol. 28, no. 1, 2009, pp. 98fCrossRefGoogle Scholar.
12 Melissa Crouch, ‘States of Legal Denial: How the Rohingya Lost the Right to Vote and the Role of Legal Denial in Myanmar’, Journal of Contemporary Asia, published online on 6 December 2019.
13 See, for example, ‘EU EOM Myanmar General Elections 2015, Final Report’, available at http://www.eods.eu/library/myanmar_final_report_en.pdf, [accessed 11 November 2020], and The Carter Center, ‘Observing Myanmar's 2015 General Elections, Final Report’, available at https://www.cartercenter.org/resources/pdfs/news/peace_publications/election_reports/myanmar-2015-final.pdf, [both accessed 11 November 2020].
14 Universal Declaration of Human Rights (UDHR), Article 21.
15 What follows draws on Lidauer, M. and Saphy, G., ‘Elections and the Reform Agenda’, in Law, Society and Transition in Myanmar, (eds) Crouch, M. and Lindsey, T. (Oxford: Hart, 2014), pp. 201–224Google Scholar.
16 The GAD was transferred from the Ministry of Home Affairs to the Ministry of the Union Government in December 2018, bringing it nominally under civilian control.
17 As it derives from constitutional provisions, changing the electoral system is inherently difficult, and any reform would require not only technical expertise, but also political will.
18 There are five self-administered zones (for Naga in Sagaing Region and for Danu, Pa-O, Pa Laung, and Kokang in Shan state) and one self-administered division (consisting of six townships, for Wa in Shan state).
19 ‘EU EOM Final Report’, p. 13.
20 The principle of equal suffrage is a cornerstone of democratic elections, protected by Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which Myanmar has not ratified. Based on the existing first-past-the-post electoral system with single-member constituencies, voting powers vary dramatically across the country. The variation of eligible voters in a given constituency ranges from lower than 10,000 to over 450,000 in the most extreme cases. In 2015, the conditions of extreme negative malapportionment (very few voters) allowed some parties/candidates to secure seats who might have not stood a chance under a system of proportional representation; as a rule of thumb, the more voters, the more likely it was that the NLD would win. International election observers have recommended that voting powers should be more equally distributed among constituencies. In the unlikely event of constitutional changes ahead of the next elections, the EU Election Follow-Up Mission of 2019 recommended that Myanmar sign and ratify the ICCPR to demonstrate its commitment to democratic principles: ‘EU Election Follow-up Mission, Final Report’, April 2019, p. 3, available at https://eeas.europa.eu/sites/eeas/files/efm_myanmar_2019_-_final_report_english.pdf, [accessed 11 November 2020].
21 ‘EU EOM Final Report’, p. 10.
22 Ibid., p. 16f.
23 This section comprises an extended version of Lidauer, ‘The 2015 Elections’, pp. 142–148.
24 UEC Notifications No. 61-65/2015 (12 October) and No. 67/2015 (27 October).
25 Compare Burke et al., Contested Areas.
26 Transnational Institute (TNI), ‘The 2015 General Election in Myanmar: What Now for Ethnic Politics?’, Myanmar Policy Briefing Series no. 17, 2015, p. 5.
27 From an international normative point of view, the (partial) postponement of elections can be justified under certain conditions such as conflict or natural disasters; however, the question is how this is regulated and communicated. Also, elections cannot be postponed indefinitely, but must be held within a regulated time frame.
28 Together with the Union Election Commission Law and the Political Party Registration Law, the election laws extend to the Amyotha Hluttaw, Pyithu Hluttaw, and state and region Hluttaw laws. All these laws have been in force since 2010, and some have been amended since.
29 The cited wording of the laws stems from an unofficial English translation.
30 ‘EU EOM Final Report’, p. 15.
31 Human Rights Foundation of Monland (HURFOM), ‘Burma 2015: Ballot Denied. Disenfranchised Voters in Kyar Inn Seik Gyi Township, Karen State’, November 2015.
32 This IFES/MIMU map visualizes a comparison of election cancellations between 2010 and 2015: http://themimu.info/sites/themimu.info/files/documents/20-Sector_Map_Gov_IFES_Election_Cancellations_2010-15Revised_MIMU1343v02_02Nov2015_A3.pdf, [accessed 11 November 2020].
33 Elections were also cancelled in 41 village tracts in Kyaukkgyi and Shwegyin townships in eastern Bago Region. Note that the UEC announcements of cancellations in 2010 did not include eastern Bago Region, but it is almost certain that there were no elections here as this area had been under KNU control for decades. The 2010 notifications only include information about areas where elections were officially cancelled, while the number of areas where elections de facto did not take place might have been significantly higher.
34 In several situations in Kachin state and in northern Shan state, the cancellations occur in areas that have been vacated during years of conflict, meaning that villages were either destroyed or abandoned at some point during the last two to three decades. The names of these places are nevertheless still part of official records and are included in constituency demarcation and therefore elections were declared for these locations. In these cases, the cancellations can be interpreted as rectifying an administrative error while still relating to the security narrative commonly used to explain the phenomenon.
35 This IFES/MIMU map visualizes the sequencing of election cancellations in 2015: http://themimu.info/sites/themimu.info/files/documents/21-Sector_Map_Gov_IFES_Sequence_of_2015_Election_Cancellations_MIMU1268v02_04Nov2015_A3.pdf, [accessed 11 November 2020].
36 The second announcement included the partial cancellations of elections in Hopang township in the Wa SAD which appeared to have been forgotten in the first notification.
37 Interview with the Loilen Sub-Commission on 7 November 2015.
38 Interview with a Restoration Council of Shan State (RCSS) liaison officer on 12 January 2016.
39 Radio Free Asia on 27 October 2015.
40 Lidauer and Saphy, ‘Elections and the Reform Agenda’, p. 211.
41 Ministry of Immigration and Population (MoIP), Department of Population, ‘The 2014 Myanmar Population and Housing Census. The Union Report’, Census Report, vol. 2, 2015, pp. 8–10.
42 A number of normative and policy texts provide guidance on the issue, beginning with the General Comment to ICCPR Article 25 and including standards endorsed by the United Nations, the European Union, the African Union, the Organisation for Security and Cooperation in Europe, and other bodies. The UN Human Rights Committee has specified that ‘if residence requirements apply to registration, they must be reasonable, and should not be imposed in such a way as to exclude the homeless from the right to vote’, quoted in Grace and Mooney, ‘Peacebuilding’, pp. 98ff.
43 Ibid., p. 96.
44 OCHA map ‘Internal Displacement (September 2014)’, https://reliefweb.int/map/myanmar/myanmar-internal-displacement-myanmar-1-september-2014, [accessed 5 December 2020].
45 ‘Displaced populations living in identifiable, confined spaces, including camps and collective centres are particularly susceptible to intimidation, especially at times of distribution of basic humanitarian assistance’: Grace and Mooney, ‘Peacebuilding’, p. 112.
46 See The Border Consortium (TBC), ‘Protection and Security Concerns in South East Burma/Myanmar’, November 2014. In 2012, TBC counted 400,000 IDPs in the southeast alone.
47 Ibid., p. 6.
48 OCHA map ‘Internal Displacement in Rakhine State (April 2015)’, https://reliefweb.int/map/myanmar/myanmar-internal-displacement-rakhine-state-nov-2015, [accessed 5 December 2020].
49 OCHA map ‘Internal Displacement in Kachin and Northern Shan State (May 2015)’, https://reliefweb.int/map/myanmar/myanmar-internal-displacement-kachin-and-northern-shan-states-may-2015, [accessed 5 December 2020].
50 Grace and Mooney, ‘Peacebuilding’, p. 95.
51 This section provides an extended version of Lidauer, ‘The 2015 Elections’, pp. 150–154.
52 Compare Crouch, ‘Legal Denial’, p. 23: ‘In a set of calculated legal moves, the parliament, the Constitutional Tribunal and the Union Election Commission acted to ensure that “white card” holders (that is, primarily the Rohingya) could not vote in the 2015 elections.’
53 UN Human Rights Council, ‘Report of the Independent International Fact-Finding Mission on Myanmar’, 12 September 2018.
54 ‘EU EOM Final Report’, p. 10.
55 International Crisis Group (ICG), ‘Myanmar: The Politics of Rakhine State’, Asia Report, no. 261, 2014.
56 MoIP, ‘The 2014 Myanmar Population and Housing Census’, p. 9.
57 The 1982 Citizenship Law established three categories of citizenship: full, naturalized, and associated.
58 Conversation with the author on 25 March 2015.
59 Crouch, ‘Legal Denial’, p. 25.
60 Ibid. Crouch provides further details about the legal steps taken to deny the right to vote.
61 Press release on 3 February 2015, translation by the International Foundation for Electoral Systems (IFES).
62 TNI, ‘The 2015 General Election’, p. 5. Compare ‘EU EOM Final Report’, p. 10: ‘These putative citizens were not allowed to vote, thereby violating Article 21(1) of the UDHR, which provides that “everyone has the right to take part in the government of his country”.’
63 Interview with IDP camp leaders in Myebon on 29 October 2015.
64 Compare M. J. Walton, ‘The Post-Election Future of Buddhist Nationalism in Myanmar’, East Asia Forum, published online on 19 November 2019, available at https://www.eastasiaforum.org/2015/11/19/the-post-election-future-of-buddhist-nationalism-in-myanmar/, [accessed 11 November 2020].
65 Grace and Mooney, ‘Peacebuilding’, p. 111.
