Myanmar's Election: The 'Real Burmese' Dilemma

By Courtney Weatherby

The Diplomat

October 3, 2015

A bias for “real Burmese” candidates (and against minorities) threatens the legitimacy of Myanmar’s upcoming election.

Shortly after the two-month campaign season leading up to Myanmar’s much-awaited national elections started, the Union Election Commission (UEC) announced on September 11 that 124 candidates did not pass scrutiny and would be barred from running for office. Many were opposition and minority members and an estimated one-third were Muslim candidates, raising serious questions over bias in the review process and the exclusion of Muslims from the political process. Though 11 candidates were eventually allowed to rejoin the race after appealing, the current legal framework and a lack of transparency about the decision-making and appeal process could negatively impact the UEC’s credibility as an impartial arbiter in the election process.

The November 8 elections will set the tone for Myanmar’s continued democratic development in the near-term and are widely expected to be competitive, with more than 90 political parties and more than 6,100 candidatescompeting for office in 1,171 constituencies. Fifty-nine of these political parties are linked to minority ethnic groups and religious groups, and one—the Women’s Party (Mon)—consists entirely of women. Though the plethora of political parties ought to be fairly representative of Myanmar’s population, it is notable that Muslims—who make up at least 4 percent of Myanmar’s total population—were under-represented. Growing intolerance and accusation from extremist Buddhists that the major opposition National League for Democracy (NLD) is anti-Buddhist kept the NLD from nominating even one Muslim candidate, while the USDP dropped some of its more outspoken Muslim candidates.

Of the 124 rejected candidates, at least a quarter were Muslim candidates—they include six of the Muslim-led National Development and Peace Party’s candidates; 17 of 18 Muslim candidates of the Yangon-based Democracy and Human Rights Party; five Muslim candidates from the National Development Democratic Party; four Pathi Muslims from the National Unity Congress Party; and at least three independent Muslim candidates. Notable among these is Shwe Maung, a self-identified Rohingya Muslim who has been an acting member of parliament and has represented the majority-Muslim Buthidaung district since 2010. By some reports, almost all of the Muslim candidates that were running have been rejected.

Notably, none of the rejected candidates were members of the USDP. While this may partially be due to better in-party screening of USDP candidates, there is at least one case where political bias in favor of the USDP played a role: the UEC admitted that it did not thoroughly investigate the citizenship qualifications of USDP candidate Minister U Thein Nyunt, whose parents were from China and whose father never applied for Burmese citizenship. Despite acknowledging this, the UEC refused to investigate further or take action to disqualify him. They cited that the complaint came in September (after the vetting process) as the reason for not disqualifying him, despite the fact that doing so would be in line with Union Election Commission Law and would show that they apply requirements equally to all parties.

Burmese Nationalism and the Citizenship Question

Most of the 124 candidates rejected by the Union Election Commission were considered ineligible due to questions of citizenship. Myanmar does not follow the jus soli policy adopted in many countries that grants citizenship at birth to children born within national territory. Myanmar’s 1982 Citizenship Law instead created a graduated citizenship system. Full citizens are individuals who were born of parents who were citizens or belong to one of the recognized national ethic groups residing in Myanmar prior to the start of British colonization in 1823. Associate citizens are those who do not fit the requirements for full citizenship but were counted as citizens under Myanmar’s 1948 citizenship law. Lastly, naturalized citizens are those who immigrated to or were born in the country after 1948 but did not already acquire citizenship or had at least one non-citizen parent. Section 72 notably excludes foreigners—including new immigrants—from gaining citizenship in Myanmar.

The 1982 Citizenship Law was designed to reflect Myanmar’s original cultural and ethnic identity before the beginning of British rule in 1823 and exclude more recent arrivals, which many Burmese view as foreign immigrants. Burmese nationalism as seen in politics started crystallizing during colonization under the British Raj, partly in response to the distortion of Myanmar’s national makeup during that time. Immigrants from India, Pakistan, Bangladesh, and China flooded into Myanmar and particularly into Yangon and the states nearest to the origin countries, with more than a million South Asians registered in the 1931 census. Many were brought into the country by the British to hold governing positions over the locals, which led to growing tensions between local and immigrant communities. This anti-immigrant sentiment influenced the citizenship laws and the decision to exclude South Asians and Chinese from eligibility for full citizenship.

The desire to ensure that “real Burmese” maintained control over the country was also reflected in election laws, which place clear restrictions on who is allowed to run for public office. Election laws place strict limitations on candidates for Myanmar’s hluttaw, or parliament. Myanmar has a bicameral legislature consisting of the Amyotha Hluttaw (House of Nationalities) and the Pyithu Hluttaw (House of Representatives). Section 8(a) of the Amyotha Hluttaw Electoral Law requires that any candidate must have resided in Myanmar for the previous 10 years, while section 10(e) states that any individual who had one parent who was not a Burmese citizen at the time of their birth is ineligible for public office. Section 10(m) also notes that associate citizens and naturalized citizens are not eligible for office. These requirements are echoed in the Pyithu Hluttaw Law.

The 124 disqualified candidates were not all rejected on citizenship grounds—there were some instances ofcandidates being rejected for failing to meet minimum age requirements or residency criteria. Some were refused based on alleged links to armed ethnic groups that were counted as unlawful associations under section 10(n)—an accusation which could likely apply to many candidates in ethnic areas, which have been involved in civil war with the Burmese government for decades. However, the vast majority were rejected based on citizenship requirements, many without the opportunity to show evidence otherwise.

Appealing the Disqualifications

Despite strict time limitations of less than two weeks, many candidates appealed—20 of the 34 disqualified candidates in Yangon sought an appeal from the local election commission, as did many candidates in Arakan state. MP Shwe Maung opted to appeal his rejection, but the Arakan State Election Commission rejected him a second time and refused to review proof of his parents’ citizenship. As impacted communities and candidates raised concerns over the rejections, the UEC Chairman publicly stated that “subcommissions will decide the appeals and their decision will be final,” and another UEC official said that only ethnic affairs representatives have the right to request UEC review of their cases. According to section 53 of election laws, the UEC has the authority to review subcommissions as it deems fit—but the final candidate list released on September 11appeared not to have reversed any of the lower-level decisions, despite concerns over bias from local courts.

On September 22, after receiving significant criticism from the international community and from opposition parties, the UEC belatedly announced that its tribunal had reviewed 18 cases and decided to allow 11 candidates to rejoin the race. All of these—two from the Democracy and Human Rights Party, four Pathi Muslims from the National Unity Congress Party, two from the National Unity Party, one from the New National Democracy Party, and two independent candidates—were among the Muslim candidates originally disqualified. All of the 11 successful appeal cases were on the basis of citizenship, with the high-level tribunal confirming the citizenship of candidates who had been rejected without basis on multiple occasions by subcommissions.

While this reversal is a positive sign that the national level Union Election Commission is willing to recognize mistakes by the lower courts, many candidates were never given the opportunity to bring appeals to the national level UEC. Given that current citizenship and election laws were designed to ensure that only “real Burmese” can contest elections, it is possible that the remaining 113 candidate rejections are legal, if not in the spirit of free and fair elections. However, it is impossible to verify this because of the lack of transparency on how decisions were made and the apparent inability of most candidates to get a fair appeal from a higher authority.

Myanmar’s Inclusion Issue

Inclusion is a vital factor in the robustness of any democracy, and Myanmar’s future democracy is dependent upon buy-in from minority ethnic groups who make up an estimated 30 to 40 percent of Myanmar’s total population, many of whom have only recently ceased fighting the central government. The issue of Myanmar’s national identity has been central in the lead-up to the election, primarily around questions of how to create a federalist state, the best way to re-integrate ethnic groups back into the Union of Myanmar, and the extent to which the majority Buddhist religion should or should not play a role in politics. The current UEC system’s lack of transparency and oversight is a potential tool for abuse and exclusion of any minority group, on political, ethnic, or religious grounds.

The UEC plays a vital role in Myanmar’s democracy, and has struggled this year not only with vetting candidates but also in managing voter lists and resolving disputes over candidate behavior. This raises questions about the ultimate legitimacy of Myanmar’s election process. Nine embassies have already indicated concerns in the first weeks of the campaign season, and the United Nations expects potentially-destabilizing disruptions as this year’s historic vote takes place due to simmering tensions. Some impacted Muslim communities have already indicated that their exclusion from the political process hurts democratic development. The opposition NLD raised concerns over UEC bias only weeks into the campaign season, and other ethnic party leaders have raised questions over the UEC’s credibility and the fairness of the election.

Myanmar is still developing democratic processes, and the extent of liberalization is restricted by the interests of political elites as well as the ongoing societal debate about the societal and political role of communities who are not “real Burmese.” Even if the election is not entirely free and fair, most analysts expect that ethnic and opposition representation in Myanmar’s hluttaw will increase notably after November 8. Changes in representation will likely allow ethnic minorities and previously unrepresented communities a stronger voice and ultimately support a wider discussion of national identity.

While newly elected members of parliament will not be able to directly answer subjective questions over ‘Burmese-ness’ or define a constantly evolving understanding of national identity, they will be able to address the concrete procedural flaws already observed in the 2015 campaign season. After taking their seats in the hluttaw in 2016, ethnic representatives will have the opportunity to directly raise concerns over requirements in election laws which impact their ability to field candidates. The newly elected representatives should push the Union Election Commission to adopt greater transparency about its decision-making processes, including a clear appeals process that allows for higher-level review of decisions made by potentially biased local election commissions. Doing so will benefit any parties concerned about ruling-party interference in the election process and remove opportunities to limit the freedom and fairness of future elections. Failure to do so will contribute to continued concerns over legitimacy and hinder Myanmar’s future democratic development.

Courtney Weatherby is a research associate with the Southeast Asia program at the Stimson Center, a Washington, D.C.-based think tank.