ILLEGALITY PINPOINTED BY LAWYER

Junta’s legislative tactic reeks of illegality

Monday, 10 May 2010 19:11 B. K. Sen

SOURCE: MIZZIMA.COM

SHOULD TRANSLATE THIS WELL WRITTEN ARTICLE’S IMPORTANT PARAGRAPHS INTO BURMESE AND SPREAD THE WORD.

http://www.mizzima.com/edop/commentary/3920-juntas-legislative-tactic-reeks-of-illegality-.html

The Burmese military junta’s electoral laws for the general election to be held this year are part of a well-crafted strategy to ensure that the military keeps its stranglehold on the country and deeply entrenches itself under a civilian façade.

The principal target obviously was Aung San Suu Kyi and the strategy achieved her further isolation from the political process by effectively barring her from contesting the polls through clauses in its legislation aimed at excluding her.

Its other major success was dissolution of the National League for Democracy (NLD) by in essence forcing its hand to not register as a political party to contest the election. But beyond its expectations was the NLD’s suo motu (of its own volition) declaration that it would stay out of politics.

It has become easier for the junta to control the political arena in keeping with its systematic plan, which is moving forward a step at a time. Prime Minister General Thein Sein and 26 ministers resigned from their military posts but not from the cabinet and have joined the party set up by the Union Solidarity and Development Association (USDA), the military-backed nationalist organisation the junta created in 1993. The party has submitted papers for registration with the Election Commission along with 25 other parties, 12 of which have received approval. The USDA party’s acceptance was a foregone conclusion.

The question that surfaces is whether the prime minister and others who remain in the cabinet are qualified to join their party under the junta’s Political Parties Registration Law (State Peace and Development Council Law No. 2/2010), section two, subsections 4(d) and 10(d). The subsections respectively bar civil servants from setting up parties or joining parties as members. The ministers admittedly remain government servants and their resignations fail to give them the right to join the political party. If the prime minister was an elected leader it would have been a different matter but he was appointed by a head of government that seized power from elected representatives of the people. The appointment as such was administrative. Where a junta rules, the appointed prime minister holds the status of a civil servant and is barred from becoming the member of a party, far less contest an election.

In a true democracy an incumbent prime minister can contest an election because he is elected and becomes prime minister as the leader of a party that wins a majority of seats in parliament. Thein Sein is not elected nor is Burma a democracy. Ne Win, while prime minister held elections in 1959, did not stand for the election nor did any of his cabinet members. It was a caretaker government and the status of the present government is the same as that of Ne Win’s. This was also the case in the May 1990 election held by the junta, in which none from the State Law and Order Restoration Council (Slorc), as the then-government called itself, joined any political party or contested the election.

In electoral politics, when a transition from military dictatorship to democracy takes place with an election held by a military government, no military dictator or officers contest elections.

The reason for the departure from this norm is obvious. The junta is unsure that 25 per cent of the seats set aside for it in all legislatures by the 2008 constitution will guarantee its survival. It had to muster more strength so it hand-picked military officers who had served it and made them resign from military posts and, as junta-friendly candidates, enter parliament thinly disguised as civilians to add to the military’s 25 per cent quota. The diabolical plan to emasculate the temple of democracy is clearly apparent.

A critical issue for Burma’s democratic transition is that a political party that has a member on its roll with a court conviction is barred from registering under the electoral law. Restrictions on a political party as to who qualifies for membership cannot be invoked by law; it is for the political party to determine the qualifications of its members, its ideology and policies.

The Political Parties Registration Law’s prohibition on a political party admitting convicted persons as members is a violation of the constitutional right to freedom of assembly, and is discriminatory and illegal. Even the 2008 constitution under which the election is to be held guarantees that right. It is for the Election Commissioner to debar a person under a law known as the Representation of the People Act. The elected government can pass a law putting some restrictions such as conviction but those restrictions are subject to another kind of restriction known as a valid derogation. The restriction clause must be clearly defined, without ambiguity. If conviction is a restriction then it must specify the period and type of offence for that conviction. It cannot just state, “conviction”.

Ironically, the constitution of 2008 does allow for such a disqualification on the basis of certain types of offences as it gives Parliament power to enact laws on issues not spelled out in the constitution. The ruling junta known as the State Peace and Development Council is not a Parliament and therefore cannot pass such a law because the establishment of such an act is illegal by virtue of it being ultra vires (beyond the legal power or authority) of the junta.

Constitutional and statutory requirements for the legal recognition of political parties were discussed in a celebrated case in Nigeria: the Independent National Electoral Commission and Attorney General of the Federation versus Balarabe Musa. The Supreme Court ruled that there was no absolute power to refuse registration on untenable grounds.

Therefore the election that will take place this year will be illegal, not free and fair.

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Prime Minister, Ministers Set to Resign

SOURCE: IRRAWADDY.ORG

EXTRACTS:

http://irrawaddy.org/article.php?art_id=18446

Prime Minister Thein Sein and other government ministers who are leaders of the Union Solidarity and Development Party (USDP) will resign from their government posts this month, according to sources in Naypyidaw….

Earlier, Lt-Gen Myint Swe, the chief of Bureau of Special Operation-5, was mentioned as the possible head of a temporary government in the pre- and post-election period.
The formation of the USDP with Thein Sein and other senior government officials is seen by most observers as violating the junta’s own electoral laws, which ban government officials or staff from taking part in political parties and using government property for political purposes.
On Friday, the Union Democratic Party in a press release said that the prime minister and ministers should not be playing a role in the USDP while they are government officials and questioned if they used government property during the organization of the political party…..

There are few signs, so far, that the general public is taking an interest in the election. The date of the election has still not been announced by the government….