LEGAL ISSUES ON BURMA JOURNAL No. 8, AUGUST 2001 
BURMA LAWYERS' COUNCIL


Ensuring Free and Fair Elections in a Democratic Burma: Establishing an Electoral System and Election Processes

Jeremy Sarkin*


Introduction

A country embarking on a transition to democracy has many issues to deal with. One of the most critical is the question of elections, the type of system chosen and the manner in which elections are conducted.1 Free and fair elections are necessary to establish a democratic, human rights-based society, and to ensure that the government and the state are legitimate.2 The right to vote is an instrument of power for both the voter and the state. When giving the people the right to vote, it is necessary to determine who is permitted to vote, and to regulate the exercise of the vote through a system which could include legislation and ways of verifying the identity of people. Such a system helps to prevent non-resident citizens from voting, and to exclude residents who do not qualify to vote. In some countries, for example, prisoners may not vote.

The need to ensure an election that is free, fair and open in a politically polarised country such as Burma is obvious. As far as possible, practical problems and problems of credibility and legitimacy must be avoided. All systems introduced within this period must ensure an increase in the confidence of the people that the process is free and fair.3 All parties must be given freedom to campaign and freedom of political expression, provided this does not impinge on the freedom of other parties. Education and information about the various parties must be freely available to allow voters to make a free and informed choice.4 Parties must have the freedom to canvass people. However, to ensure fairness, there should be certain limitations on what parties may do during the election campaign period. For example, practices which undermine fairness must be strictly controlled, including not allowing the intimidation of voters.


Electoral Systems

Electoral systems shape the voting process, and how votes are translated into the distribution of seats in the legislature.5 How seats are allocated is one of the most important differences between the electoral systems in use in different parts of the world.6 The three main systems in use are the plurality system, the majority system, and proportional representation.7

The plurality system, also known as the single member constituency system, is a ‘winner-takes-all’ system – only the views of those who support the winner of the election will be represented in the legislature.8 A constituency is a geographically-defined area where the voters elect a candidate. A candidate is elected only when he or she obtains more votes than any other candidate in that particular constituency election.9 The government is formed by the party which wins the majority of constituency seats.10 An important element of the system is that an absolute majority is not essential in any constituency. If the party which won the most seats does not have a majority of seats in parliament, it cannot form a government until it has formed a coalition with enough parties to have a majority.

The plurality system has a number of advantages.11 Firstly, it lends itself to stable and effective governing and it usually results in a single-party government without the need for coalitions. Forming single-party governments is easier in situations where there is at least one large party; when there are many small parties, coalitions are often required. Secondly it presents an opportunity for the running parties to take the emphasis off race, ethnicity and caste, put policy and ideology at the forefront, and promote a national approach to issues and policies. Thirdly, public opinion is largely reflected in the number of seats won and there is usually a reasonable correlation between the number of votes for a party and the candidates who represent that party in Parliament. Fourthly, it is possible for individual candidates not linked to any party to stand for election. Finally, members of the legislature have a direct link with the constituency in which they were elected because constituency elections are fought be individuals, so they may be more accountable to the voters than in other systems.

There are also a number of disadvantages. Firstly, there is no link between the total number of votes the people cast nationally for a specific party and the number of seats it wins. Because the votes for each constituency election are counted only for that constituency, it is possible for a party which received There should be certain limitations on what parties may do during the election campaign period. For example, practices which undermine fairness must be strictly controlled. fewer votes overall to win more seats than a party which received more voter support overall. Secondly, a person may win a constituency election without a clear majority. Thirdly, there is no parliamentary representation for the views of those voters who supported the losing candidate. Fourthly, ruling parties may manipulate constituency boundaries to help them win elections. Finally, a small party stands a chance of winning seats only if its support is strongly concentrated in one or more constituencies.

Within the majority system, an absolute majority of the votes is needed. This means that a candidate has to get 50 per cent plus one vote to be elected. Where a candidate does not achieve a majority, one of two systems are used to settle the result: the second ballot or the alternative vote.

A second ballot is held when one candidate does not obtain an absolute majority.12 A series of ballots may have to be held, with the candidate who receives the fewest votes being eliminated from contention in each round until one candidate has achieved a majority. The only problem associated with this system, especially in unstable situations, is that one side may cancel or disrupt the second ballot because it anticipates losing the election.

The alternative vote is used in single-member constituencies. Here voters indicate their choice of candidates in order of preference. There is only one election. If no candidate receives a majority of votes, the candidate with the smallest number of votes falls out of contention. The votes cast for that candidate are divided amongst the others according to the second preference indicated on those ballots. This process continues until a winner is found. This system encourages coalitions between parties.

Proportional representation is used when there are multi-member constituencies. Seats are allocated according to party lists, which can be compiled according to the list system, or the single transferable vote.

In the list system, before the election, the parties contesting the election compile a list of their candidates in order of preference. In this system, voters choose parties, not individual candidates. The proportion of votes a party receives in an election determines the number of seats it is allocated. The system can confine voters to voting for party, with the order of candidates on the list being determined by the party. Alternatively, it can allow voters to choose between different candidates of their preferred party or even across party boundaries. A common type of list system has a minimum threshold requirement which parties must meet in order to obtain any seats. Unlike the plurality system which uses local area constituencies, the area in which voters cast their ballots is often regional/provincial or national. Countries using national list systems allocate seats proportionally at national level. Some countries choose to allocate seats both regionally and nationally in different legislatures. Allocation at national level will provide an election result which more accurately represents the overall will of the voters than regional or local-level elections can. In addition, a small party which does not have enough support to win seats in any one regional election may have enough support nationally to win seats because its votes are not split across regions. However, national tallies of votes tend to mask regional differences.

Within the system of the single transferable vote, the electorate in multi-member constituencies can vote for a particular candidate of the party of their choice as well as for candidates who are not members of this party. This system is similar to the alternative vote of the majority system because both systems allow voters to indicate their preferences. The single transferable vote also provides for preferential voting but, unlike the alternative vote, it requires multi-member constituencies. Its two central features are that it tries to secure proportional representation of political opinion, and the provision for choice of candidates within, as well as between, parties. Votes that cannot be used to elect a candidate, either because they are surplus to what to what he or she needs to secure election, or because the candidate has too few votes to be elected, are transferred to other candidates. This contrasts with the list system which offers only a minimal choice of individual candidates or no choice at all.13 To the individualists who devised the single transferable vote, the representation of opinion was as important as the representation of the party, and their view was that the voter ought to be allowed not only to decide which party was to govern the state, but also to influence the policies it should follow.

A central characteristic of this system is that it contains a built-in primary election, in which every elector, whether a registered member of a political party or not, can play a part. It works best when there is a maximum choice of candidates, with a number of seats. Voters list candidates in order of preference, rather than voting for a party as is the case in list systems of proportional representation. In order to be elected, candidates have to obtain a minimum number of votes.


An Independent Electoral Commission

Free and fair election cannot work unless there is a mechanism to run the elections. A competent civil service and an independent judiciary are important when arranging and overseeing elections. However, to ensure impartiality, independence and freedom from undue influence, an independent electoral commission is often appointed to take managerial and operational control of the use of resources and personnel required to run the election.14 It is usually an autonomous body comprised of independent experts who have no association with the past government. This is not to say that government departments who have dealt with elections previously cannot play a part. These departments often have logistical skills, infrastructure and experience to help with the smooth running of an election.

The constitutions of a number of countries require an independent electoral commission.15 Such structures can help to create conditions of fairness by, for example, helping to prevent those in power from using civil servants in the government to gain an electoral advantage over other parties. In some countries, the powers of such commissions are strictly limited to the administrative part of elections. In others they have exclusive powers over electoral matters, including legislative and judicial power to determine and set standards for acceptable electoral practices.

A commission ought to have the capacity to determine its own procedures for convening and conducting its proceedings. It should have the power to appoint sub-committees and establish directorates as it sees fit to effectively meet its responsibilities. It should also have the power to appoint administrative staff as well as expert outsiders. A measure of control can be introduced by the requirement that the chairperson of these committees must be a commissioner and that decisions of the sub-committee are subject to review by the commission.

The real and perceived independence of the electoral commission is the key to ensuring that the electoral process is legitimate and fair. However, in order to sufficiently guard the commission’s independence, it is crucial that appointment and dismissal procedures are carefully designed to ensure independence and ensure that there is no room for political manipulation through the use of executive power. 16 This commission’s function should not be influenced by political or other bias. An option could be for the United Nations or another nonpartisan body to assist in the process of appointment. The commissioners could be appointed after a panel interview.

Once appointed, the members of the commission should be afforded certain privileges and immunities. It is recommended that remuneration of the election commissioners should be on the scale of a senior civil servant and their status should be the same as that of judges. Furthermore, once appointed, the only grounds for removal should be gross negligence, mismanagement, financial impropriety or an inability to perform the functions of the office. Removal processes should come under the review of a legal tribunal or court. Commissioners should be required to divest themselves of any office which might interfere or be seen to interfere with their performance.

In some countries, the electoral commission is constituted of representatives of registered political parties. The administration of the election is therefore in the hands of the political parties. However, this could be problematic because during a transitional period there is a tendency for the number of political parties to increase. If each of these parties were to be represented in the commission, the commission would be unwieldy and ineffective. Also, appointments made on party affiliations may result in a commission which lacks the skills and experience to run an election.

In some countries, the laws specify qualifications for commissioners. Such criteria must be sufficiently clear so that the public has confidence in the appointment process, and those appointed must meet the criteria. The commission must be non-partisan and must be seen to be so. Commissioners should ideally not have held any political party or military office prior to their nomination since this could undermine the independence of the body. More detailed criteria could include, for example, experience in electoral management, knowledge of electoral systems, a known reputation for fairness, and a commitment to democracy.

Mechanisms should be devised to ensure the appointment process to the commission is transparent and that there is public participation in the process. Public nominations should be invited through press advertisements. Proposed nominations should be published in official government publications as well as the press and published for public comment, allowing enough time for public comments and objections to be evaluated. Provision should be made for candidates to be interviewed in public and deliberations should be held in open meetings. Reasons for nominations and appointments should be published, including details about the criteria that have been taken into account in making the appointments.

In some countries there are separate commissions for each province or state under an overarching central commission. A national commission and provincial or state commissions need staff for polling stations which include presiding officers (to oversee voting); electoral officers (regional representatives of the chief electoral officer); returning officers (who hold public court for the nomination of candidates for election in their constituencies, and who supervise the administrative arrangements for counting votes.); counting officers (who supervise and undertake the count which occurs at a central polling station in the constituency), polling officers (who attend to the managerial functions of the poll); and administrative staff. There is thus a considerable devolution of authority to the officials working at the regional level and this relationship has to therefore be formalised in the electoral law. A decision has to taken by the government on who appoints these officials – a central body or a regional one. Training should also become the foremost responsibility of the election commission between elections. Programmes must be designed to familiarise officials with procedures and decision-making, as well to train officials about the importance of free and fair elections.


Compiling a Voters’ Roll

As it is likely that voter registration will be necessary for future national and state elections – one list of eligible voters should be compiled at a national level. A national voters’ roll would ensure uniformity, and should be capable of being broken down into lists of provincial and local voters. The voters’ roll would be useful for statistical analysis of voting patterns, which would enable easier identification and solving of systemic problems.

A national voters’ roll will be easier to maintain and update than many smaller rolls. For example, it would enable addresses to be changed in one place, avoiding duplication, reducing costs and reducing the chance of voter fraud.

Burma should follow international precedents by placing upon government the responsibility to register all eligible citizens. There are three general models of voter registration systems internationally: (1) where the onus of responsibility to register voters falls entirely on government, and a universal list of voters is drawn up from identity documents or through a census; (2) where government agencies such as welfare bureaux or drivers’ licence offices register voters and update registrations automatically; and (3) where citizens must register themselves. Of the three systems, automatic registration through a list of citizens is the most comprehensive and the least expensive to compile and update. It is also cost effective because the list may be used for other governmental purposes, for example, information for the population census, statistical analysis, and health care. Lists are permanent, and are constantly updated as citizens become eligible to vote, lose their eligibility, or move. Some countries using automatic registration systems include Mexico, Finland, Germany, Switzerland and Sweden. These countries have achieved nearly universal voter registration. A voter registration system must be inclusive, accurate and inexpensive. It addition, it must have a regular format and it must be easy to correct errors in the system.

The first, and most labour and cost-intensive step of compiling a national list of eligible voters is compiling the first base list. This could be done through a variety of ways in Burma, the most effective being to use automatic registration systems. An automatic registration system should be augmented and updated through an ongoing agency-based registration programme. Such a programme would increase the accuracy of the rolls, and would reduce last-minute changes and additions to the voters’ rolls.

An independent electoral commission (IEC), in consultation with relevant government departments, should first identify agencies and programmes that reach large populations (for example, schools, universities and health clinics), and designate these as voter registration sites. With the consent of their clients, the voter registration agencies should forward information relevant to voter registration (such as newly eligible voters, or voters who have changed their names or addresses) to the voter registration division at the IEC. In this way, an agency-based programme would continuously update the list of voters.

While the programmes described above would go far toward the goal of universal voter registration, it should be expected that some voters will slip through the cracks, and will find on election day that they are not on the voter registry. Because this would be the result of administrative failure, the IEC should provide for a mechanism to enable these people to exercise their right to vote. One such mechanism would be where a voter could both register and vote at the polls on election day. In order to prevent double voting, voters who register and vote on election day should be required to present proper identifying documentation. If the automatic and agency-based registration techniques outlined above were properly implemented, the number of voters exercising this option would be minimal.


Running an Election17

Free and fair polling: The object of polling is to record votes accurately.18 The freeness and fairness of polling will depend on it. It is important all those who are eligible to vote have easy access to polling stations near to where they reside, that they know how the voting procedure works, that they are given sufficient time to vote, and that provision is made for illiterate voters. For an election to be free and fair, the most important principle of one person one vote should be implemented, and efforts should be made to make sure that fraudulent practices during voting are eliminated. Examples of these fraudulent practices are double voting, removal of ballot valid papers, ballot box stuffing and ballot box swopping. Voters must be able to exercise free choice when they vote and protected from influence or intimidation by any official or any other person at the polling station.

Polling stations: Their location is important in an election. Voters should not have to travel far to cast their ballot. This is of particular importance in rural areas because these are far from towns and cities. Polling stations must have enough trained officials to staff them and to educate the voters in the voting procedure.

Voting period: There are different views on whether voting should take place on a single day or over a number of days. If the decision is to have voting on a single day, it is essential that there are sufficient polling stations and election officials so that no voter is turned away when the station closes. Voting over more than one day carries the risk that ballot boxes could be tampered with overnight. However, elections should, with controls in the process, last more than a day where voters need more time because of problems such as poor transport facilities or slow processing of voters.

Special votes: These are provided in some countries for those who cannot vote at the polling station on election day. This is a dangerous practice as it can allow vote manipulation or rigging to occur. Sometimes exceptions are allowed for voters who, through no fault of their own, are unable to vote at a polling station during the polling period.

Preventing double voting: In order for all votes to be equal, no person may vote more than once. Where there is no voters’ roll, using indelible ink to mark voters can help prevent repeat voting. Before a vote is cast, the voter’s hands and documents ought to be examined to determine if they have already voted. Sometimes religious beliefs prevent hand staining. Alternative approaches can then be used.

Protecting ballot boxes: The stuffing of ballot boxes with false ballot papers and the exclusion of genuine ballot papers may ruin an election. Special provisions must be made to safeguard ballot boxes when the boxes are constructed and when they are distributed to polling stations. When polling begins, the presiding officer should show party agents that all ballot boxes are empty. Once this has been done, the presiding officer should seal the box and the party agents should add their seals to the box. All ballot boxes should have seals on them and if a seal has been broken, it is clear that the box has been tampered with. All ballot boxes should be placed in areas in the counting centre where presiding officers and party agents can see them throughout the day. Presiding officers should have the right to ask voters to show their ballots to ascertain whether these have the necessary official marks. The presiding officer does not have the right to look at the side which the voter has marked. Ballot boxes should be sealed at the end of the day, when the boxes are full, and at the end of the polling period. The presiding officer and the party agent must close the boxes with their seals.

Considered and intended vote: The cross on a ballot paper should reflect the voter’s free choice of candidate or party. The design and presentation of the ballot should assist voters to make that free choice by being accessible to all voters, irrespective of class, language, culture or level of literacy. If there are too many choices on the ballot paper, voters may struggle to make a choice. In some countries, parties or candidates are expected to demonstrate that they have some quantifiable support before they may appear on a ballot paper. Furthermore, it is advisable that parties are placed on a ballot paper in alphabetical order so not to give preference to any particular party. The starting order should be decided by drawing the name of a party from a hat and then the alphabetical system continues with that party at the top of the ballot followed by the other parties in alphabetical order thereafter. A voter who makes a mistake should be given an opportunity to take another ballot paper once the old one is destroyed or cancelled.

Independent vote: Polling should be conducive to independent voting. Therefore, no party official or voting official should have any influence on the voters’ choice of party in and around the polling station. There should be no communication between voters and voting officials during voting and care should be taken that no one enters the voting compartment when the person is voting. No electioneering should take place in the vicinity where polling takes place. The only exception to these principles ought to be where a voter would be deprived of the vote if not assisted.

Secret vote: There are a number of methods that have been developed to ensure the secrecy of a vote: the name of the voter should not be written on the ballot paper; the voter should use a mark that cannot be linked to that voter; and no person may see who the voter is voting for. Secrecy must be permanently maintained.

Counting the votes: There are different views on where counting ought to occur. Some argue that by counting ballots at the polling stations, the results can be determined more quickly as boxes don’t have to transported to a different location. Counting can be shared between election officials so that less manipulation of results is likely. However, counting at polling stations can cause a loss of secrecy. The integrity of the votes must be maintained and therefore issues of security, transport and so on are vital factors which need to be taken into account. It is extremely important that accuracy in the counting of ballots takes place. Therefore a number of counting officials must be appointed under the supervision of a returning officer. Monitoring also ensures accurate counting and party agents and monitors can help by making sure the ballots are counted accurately. When the count is completed, only one specifically authorised official must announce the result.


Conclusion

At the core of any democracy is its electoral system. 19 Free and fair elections are the key to the transition to a democratic, human rights-based society.20 Not only must they be free and fair, but they must also be seen by all to be free and fair. Nothing should occur to undermine the credibility of the elections.21

The type of electoral system is probably one of the most crucial aspects of a democracy.22 Various types of electoral systems exist, from individual constituency systems to those where there is proportional representation. In proportional representation, a particular party enjoys the percentage of representation in the legislature in accordance with the percentage of the national vote that it has received.

Transitional societies are often the source of major difficulties for a variety of reasons. A key question is whether there is sufficient trust in the electoral process itself and whether the body responsible for organising and counting the votes is perceived to be independent and capable. A system that appears faulty or not independent could lead to chaos and violence that could compromise the legitimacy of elections.

There is also a need to ensure an election is free, fair and open. Thus, the independence of the body (or commission) that runs the election is vital to ensure that the electoral process is legitimate and fair. Should the process of setting up the commission and the structure itself be beset by credibility, legitimacy, practical and other problems, the consequences will be serious. If the process of establishing the electoral commission or the structure of the commission itself is seen to lack credibility, the election will not be seen to be free and fair.


Endnotes

* Professor of Law and Deputy Dean, Law Faculty, University of the Western Cape, South Africa; BA LLB (Natal), LLM (Harvard), LLD (UWC); attorney of the High Court of South Africa, attorney at law in the State of New York, USA.

1. Haggard, Stephan, and Steven B. Webb, eds., “Voting for Reform: Democracy, Political Liberalization, and Economic Adjustment”. Oxford: Oxford University Press for the World Bank, 1994.

2. Franck, T.M., “The Emerging Right to Democratic Governance”. American Journal of International Law, (86), 1992, p. 46.

3. Moe, Terry M., and Michael Caldwell, “The Institutional Foundations of Democratic Government: A Comparison of Presidential and Parliamentary Systems”. Journal of Institutional and Theoretical Economics, 150, No. 1, 1994, pp. 171-195.

4. See: Vergara, Ana Cecilia, “Justice, Impunity and the Transition to Democracy: A Challenge for Human Rights Education”. Journal of Moral Education, (23), 3, 1994, pp. 273-84; Brabeck, Mary, et al., “Human Rights Education through the ‘Facing History and Ourselves’ Program”. Journal of Moral Education, (23), 3, 1994, pp. 333-347; Claude, Richard, “Human Rights Education: The Case of the Philippines”. Human Rights Quarterly, (13), 4, 1991, pp. 453-524; Henry, Charles P., “Educating for Human Rights”. Human Rights Quarterly, (13), 3, 1991, p. 420; Misgeld, Dieter, “Human Rights and Education: Conclusions from some Latin American Experiences”. Journal of Moral Education, (23), 3, 1994, pp. 239-259.

5. Lakeman, E., “How Democracies Vote: A Study of Electoral Systems”. London: Faber and Faber, 1974.

6. Bognador, “Parliamentary Democracy”. Human Rights Law Journal 394, 1988.

7. Rawlings, H.F., “Law and the Electoral Process”. London: Sweet & Maxwell, 1988.

8. Leonard, D., “Elections in Britain Today”. London: Macmillan, 1991.

9. Moyo, J.N., “Voting for Democracy: Electoral Politics in Zimbabwe”. Harare: University of Zimbabwe, 1992.

10. Sartori, G., “Parties and Party Systems: A Framework for Analysis”. Cambridge: Cambridge University Press, 1976.

11. See generally Steytler, N., et al. (eds.), “Free and Fair Elections in South Africa”. Juta, 1994.

12. Lipset, S.M. and Stein, R., “Party Systems and Voter Alignments”. Toronto: Collier-Macmillan, 1967.

13. Vanhanen, T., “The Process of Democratization: A Comparative Study of 147 States, 1980–1988”. New York: Crane Russak, 1990.

14. On the independence of state institutions generally, see: Sarkin, J., “Examining and Enhancing the Role of National (Constitutional and Statutory) Human Rights Institutions in Developing a Human Rights Culture In South Africa”. South African Public Law, (2), 2000, pp. 290-330.

15. See generally Sarkin, J., “L’écriture de la Constitution Sud-Africaine de 1996: Approache Formelle et Materielle”. Revue Française: Droit de Constitutionnel, Vol. 44, 2000, pp. 746-767.

16. See: Sarkin, J., “Reviewing and Reformulating Appointment Processes to Constitutional (Chapter Nine) Structures”. South African Journal on Human Rights, (4), 1999, pp. 587-613.

17. See: Steytler, N., et al. (eds.), “Free and Fair Elections in South Africa”. Juta, 1994.

18. Darcy, R., and Schneider, A., “Confusing Ballots, Roll-off and the Black Vote”. The Western Political Quarterly, (42), 3, 1989, p. 347.

19. See further: Sarkin, J., “Comparing and Contrasting Democracy and Human Rights Provisions in Two Draft Burmese Constitutions from an International Perspective”. Legal Issues on Burma Journal, No. 4, October 1999, pp. 56-69.

20. On other important issues, see: Sarkin, J., “Dealing With Past Human Rights Abuses: Promoting Reconciliation in a Future Democratic Burma”. Legal Issues on Burma Journal, No. 7, December 2000, pp. 1-14.

21. Diamond, L., “Promoting Democracy in the 1990s: Actors and Instruments, Issues and Imperatives”. New York: Carnegie Corporation of New York, 1995.

22. Diamond, L., “Prospects for Democratic Development in Africa”. Stanford University: Hoover Institution, 1997.