Guest article by Thinzar Shunlei Yi, Advocacy Coordinator, Action Committee for Democracy Development
A limited national democracy
After Myanmar’s 2015 general elections, only the second elections held since 1990, the longstanding opposition National League for Democracy (NLD) party, led by Nobel Laureate Daw Aung San Suu Kyi, won a landslide to form the first ever civilian government. The world cheered and people were overjoyed about the victory of people’s power in voting out the military-backed ruling party. Long democracy struggles were seen to have paid off as Daw Aung San Suu Kyi first stepped into parliament and finally formed a government, putting herself into the new position of State Counsellor, above the president despite constitutional constraints.
2018 marked two years since the first civilian government came to power, and there is still a need to remind everyone, including the international community, that in Myanmar, under the name of democracy, the military still rules at the grassroots level. Our journey towards democracy remains an elite-driven process. Ultimately, we are walking on a path generals have paved, and democracy in Myanmar remains within limited boundaries and is operated in a guided fashion. We aren’t yet sure if we are on the right track towards democracy. Following the Rohingya crisis, which highlighted the huge difficulties faced by Myanmar’s ethnic minorities, I wish to draw attention to how Myanmar’s grassroots communities could be enabled to have more democratic voice in the future.
The 2008 Constitution took some power away from the military generals who adopted it, but offered them some compensations. In 2010, the NLD, at that time in opposition, boycotted the general election as it believed that the constitution drafted by the military junta wouldn’t lead to genuine democracy being established. It was criticised for being less a charter for democracy than the generals' retirement plan. The constitution gives the military a quota of 25 per cent of the seats in each of the two houses of parliament and control over the important ministries of home affairs, border affairs and defence. Moreover, the constitution enshrines military prerogatives and it requires the approval of 75 per cent of all representatives in parliament and a majority of votes from those eligible to vote in a nationwide referendum to amend important articles. These challenges notwithstanding, the NLD stood for elections from a 2012 by-election onwards, promising to implement constitutional reform within the system, leading to its victory in 2015.
In a democratic system, regular free and fair elections are the most important characteristic. Beyond this, democracies should guard against all-powerful central governments, and one way they can do this is by decentralising government to regional and local levels, on the understanding that all levels of government must be as accessible and responsive to the people as possible. But this is not yet the case in Myanmar, because the military has ultimate control over the bureaucracy at all levels. At the same time, the current ruling government is not doing enough to strengthen local democracy.
Myanmar has three types of elections: general elections, local elections for municipalities and elections held for ward and village tract administrators. But citizens’ rights are not equal across these three levels. For example, the general election is held on the basis of one vote per citizen, while the local level elections are held on the basis of one vote per household. The general election is authorised and managed by the Union Election Commission (UEC), which has the primary duty of holding a free and fair election that should be accepted and trusted by all people to build a strong and genuine democratic system. But this level of scrutiny is not applied to the more local-level elections, which are more ceremonial than truly democratic.
Municipal elections are the most decentralised form of government that can be found in Myanmar, but the 2008 Myanmar Constitution does not provide for a third tier of government at the local level and does not mention the existence of municipal committees. Thus, legislative and executive power over municipal affairs is assigned to the governments of Myanmar’s seven states and seven regions. Each township now has a development affairs organisation (DAO) (si-bin tha-ya-ye apwe in the Myanmar language) to carry out municipal functions for its constituents. Municipal governance is a key exception to the current structure, as municipal agencies are the only fully decentralised bodies in Myanmar. They are unique, as they raise all revenue from their own township and have significant discretion over the use of these funds, provide a significant range of social services and are responsible for overseeing local economic governance as part of a broad remit of local governance processes. Yet municipal committees in most townships have been formed mostly in a random fashion by selecting the appropriate candidates rather than by going through a complete electoral process.
The ward or village tract administration is the main day-to-day bridge between communities and the state. These bodies, as the lowest level of the administration and supervision of all 3,400 wards,13,599 village tracts and 63,282 villages across the seven states and seven regions, increasingly play a key role in local development. Villages can be of different sizes, from a population of less than a hundred households to a village of more than a thousand of households, while village tracts are formed from between three and 11 villages. Elections to these bodies should be extremely important and should form an indispensable part of Myanmar’s transition to democracy. They should be one of the ways in which citizens can exercise their democratic rights and responsibilities as active citizens on the ground to elect someone directly who can represent their interests for community development. With the country’s president chosen by a parliamentary electoral college, the ministers of states and regions chosen by the president and district and township level administrators appointed by the Ministry of Home Affairs (MoHA), this is the only opportunity for people in Myanmar to elect directly someone who will administer them. But ward and village tract administrators are often elected only in a narrow sense, with the experience of elections often chaotic on the ground due to legal shortcomings and the military dominance of the administration structure.
The Ward or Village Tract Administration Law, promulgated in 2012, which replaced the colonial-era Towns Act and the Village Act, both passed in 1907, sets out the mandate for the management and supervision of administrators in ward and village tract levels, including the procedures of electing ward or village tract administrators. The law details the administrators’ functions and duties, over half of which are related to security. Other duties set out in the law include the registration of births and deaths, public health issues, local development activities and facilitating requests for permission to hold public events. The role of the administrators is extremely important for local-level governance and the administration of business, development projects and social affairs such as management of land, taxation, microfinance projects, dispute settlement and regulation of livestock ownership. As such they play a crucial role in the daily realities of people’s lives at a local level.
The law was enacted under the 2008 Constitution, Article 289, which states that “administration of ward or village-tract shall be assigned in accord with the law to a person whose integrity is respected by the community.” The implementation and administration of the law falls under the General Administration Department (GAD), which is one of six main departments of the military-controlled MoHA.
Civil society mobilisation
Since the law was passed in 2012, amendments have been made three times and three rounds of ward and village tract administration elections have been held under the supervision of GAD, in 2013, 2016 and 2017.
Myanmar has growing numbers of civil society organisations (CSOs) working on election monitoring and observation. Although the election laws do not explicitly allow for election observation, the UEC has invited and accredited over 11,000 observers from 52 CSOs and over 1,000 international observers for the general election. While this is a high level of interest and participation, the level is however lower in local elections due to unclear legal provisions and the possibility of unsecure situations while undertaking observation on the ground. A few CSOs, which mostly come from the perspective of challenging the management of the electoral system by a military-backed ministry, have been active in advocating for amendments to parts of the law, while other CSOs have been engaged in raising awareness of the law and voter education at the grassroots level.
A civil society coalition, the Coalition on Ward/Village Tract Administration Law Amendment (WA-VTA Coalition), led by a number of CSOs - the Action Committee of Democracy Development (ACDD), Charity-Oriented Myanmar, Community Response Group, Equality Myanmar, New Myanmar Foundation and Paung Ku - was created in March 2016. It has worked to mobilise the public and has advocated towards both houses of parliament for legislative reform. The coalition convened a workshop of 30 CSOs from six regions and four states to analyse the law and proposed a series of specific recommendations, of which 10 priority recommendations on amendments to the Ward or Village Tract Administration Law were agreed. Following a press conference to discuss these points in April 2016, the coalition was invited to the first ever public hearing to take place at the upper house of parliament, which resulted in some of civil society’s recommendations being included in a draft amendment to the law. The WA-VTA Coalition also organised 13 township/village discussions in five states and five regions with the participation of elected members of parliament, interested CSOs and individuals, including legal experts. Those discussions and consultations with people on the ground helped shape advocacy for the law’s amendment. A public hearing at the lower house of parliament followed this, at which three representatives of the coalition presented the 10 priority points, which had been endorsed by 75 Myanmarese CSOs. President U Htin Kyaw approved the third amendment to the Law on 2 December 2016.
After the third amendment, a workshop was held by CSOs, including the WA-VTA coalition, in Thaton Township, Mon State, in June 2017. The 35 attendees, from ACDD’s member networks, WA-VTA and local governance experts from Bago, Kachin, Magway, Mandalay, Mon, Rakhine, Sagaing, Shan and Yangon regions and states reported on how the new law has changed since the third amendment. Some of the amendments partly reflect civil society recommendations, such as the introduction of a direct voting system to elect administrators by one person per resident household - replacing the previous practice of indirect elections by 10 household leaders - the removal of the requirement of overnight guest registration and of punishments for not registering overnight guests, the addition of “or one household member who is over 18 years old” along with the head of household as eligible voters, the removal of restrictions on education requirements for candidates and the stipulation that candidates should be in “good health” and a reduction in the power and influence of township and district-level appointed officials over elected administrators. The removal of the overnight guest registration requirement was important because in the past this was used by the military as a tool to control the freedom of movement and conduct surveillance on political activists.
However, several important suggestions for amendments by CSOs were not included, such as universal suffrage, the right to recall an elected official, the removal of the stipulation that qualified candidates must be those “whose family members are of good morality, honest and simple,” the initiation of a mandated publicly available timeline for announcing and holding the elections and the transfer of power of oversight of local elections from supervisory committees to the UEC. Further, while guest registration provisions were improved, it remains mandatory to register guests who stay in someone’s home for more than 30 days.
In addition, due to unclear procedures, there remains a high potential for election disputes and confusion. Thus, problems remain and civil society actors will continue to monitor the performance of elected administrators, conduct voter education, report on public opinion polls and advocate for policy and legislative change.
The GAD still has disproportionate influence over the elected officials of wards and village tracts. It has been described as having “wide-sweeping administrative functions… which affect the country at every level of governance.” Its involvement at the local level not only extends the military’s reach, but also centralises control over administration when we as a country are supposed to be striving for a decentralised and federal system of governance. For example, the ultimate authority on the formation of the supervisory board that oversees the election of ward and village tract administrators is the township administrator, who is unelected and appointed directly by the GAD. Also, within the Ward or Village Tract Administration Law there is the existence of the GAD-appointed ward or village clerk, whose position is unelected, permanent and influential. Township administrators also have the power to dismiss ward or village tract administrators. Thus, ward or village tract administrators are accountable not to the people, but upwards to township administrators and ultimately, to the military.
Another aspect is the recent amendment to the Ward or Village Tract Administration Law that creates ‘village focal persons’, something that could be exploited by the MoHA to infiltrate and expand its presence right down to the level of 100 households or small villages by using such people as informers and mobilising them to enforce their agenda.
The mooted Township Administration Law, which is still in draft form, will only cement the powerful position of the military in the GAD, and thereby in local level governance and administration. Even if the Township Administration Law - when eventually passed - changes the position of township administrator from an appointed to an elected one, the ultimate authority will remain with the military via the GAD and the MoHA. It would rather be in accordance with democratic norms if the responsibilities of the ward and village tract elections were transferred from the GAD to an independent election body, and the mandate for and management of ward and village tract administrators were transferred to administrative bodies under civilian control.
Regarding the elections, there are also problems concerning inclusivity, especially for women and young people. According to the law, candidates for the position must be at least 25 years old, a provision that excludes a large portion of Myanmar’s young people. In order for a culture of democracy to take root at the local level, young people must be encouraged to participate. Voting is also still based on heads of households rather than all adults residing in each household. While this in itself is exclusionary, the prevalence of male heads of households means that there are major problems regarding the participation of women in this process.
This law is also significant for the aspirations of ethnic minorities. The centralisation of the administrative structure, under the control of the military, must be addressed in the peace process, and yet the Ward or Village Tract Administration Law is one of the elements that institutionalises the military’s continuing role. Of course, change must come as part of broader reforms of the GAD, which should move towards the decentralising of administration, including elections of local officials, to help devolve power to ethnic groups that have been striving for autonomy and self-determination for decades.
Looking forward: what should happen next
Yet there is hope and optimism. Civil society’s mobilisation has seen the successes outlined above, and the civil society coalition remains strong and active and will continue to push for more substantive reforms. While the military continues to hold power and assert its dominance over the administration structures that affect the daily lives of the people in Myanmar, these civil society activities can be supported by the government and members of parliament to push forward meaningful reforms that lead to a more genuine and inclusive federal democracy.
It is vital, in this time of fragile democracy in Myanmar, that the transition is not merely an elite-driven process and that communities on the ground can participate and feel a sense of ownership, which will ultimately strengthen democracy. For this, it is essential that the GAD be released from the hands of military control. Further, even if the Ward or Village Tract Administration Law is amended to be more democratic, it does not necessarily decentralise the administrative structure. Reform of the GAD and the Ward or Village Tract Administration Law must be part of a broader process that establishes autonomy for different ethnic groups and also facilitates democracy taking root at the local level through an inclusionary and participatory process to elect officials who are accountable not to the military-dominated centre, but to the people on the ground.
Within the current legislative framework, the dominance of the military within parliament is another roadblock to reform. During the process of the third amendment of the Ward or Village Tract Administration Law in 2016, pushback by the military and conservative forces within the bureaucracy against certain amendments prevented more substantive progress. For example, after the draft of the amended law, incorporating many recommendations from civil society, was approved by the upper house, some controversial articles were not amended following discussions in the lower house, after military parliamentarians raised objections to some amendments in the name of ‘security’.
There is an overall need for comprehensive sub-national administration reform. Currently, decentralisation and sub-national administration changes have proceeded in an ad hoc and piecemeal manner without a broad and comprehensive framework for sub-national administration based on democratic norms and set within a transparent, accountable and inclusive policy, guided by a vision of a federal democratic union of Myanmar. For substantive change to occur, a process of constitutional reform must begin.
There are important further issues related to the governance of Myanmar that relate to the aspirations of different ethnic groups and the peace process. The Ward or Village Tract Administration Law is just one piece of a centralised system of governance and administration. Ethnic peoples’ aspirations of self-determination and equality must be addressed through a federal system of governance, and this involves devolving substantive power to areas in which ethnic minorities live to enable them to govern many aspects of political, economic, social and cultural life themselves, including administration.
In conclusion, further amendment of the Ward or Village Tract Administration Law is crucial in order to create a vital link between communities and the state. The Law has the potential to play a key role in promoting sustainable peace, democracy and development, while local elections are of huge importance as they form an indispensable part in establishing the foundations for Myanmar’s transition to democracy. But ultimately, the amendment of the law must be part of broader reforms of the administration of the country. A key to this is ending military authority over the GAD, which entrenches its position as the most powerful institution in Myanmar. Reform of the GAD and wider sub-national administration, including the Ward or Village Tract Administration Law, can help create the institutional structure and process through which citizens can exercise their democratic rights, and develop democracy, active citizenship and participatory local governance. This must be part of a broader reform process that devolves power and establishes a federal, democratic system of governance that empowers ethnic minorities and ensures the equal sharing of power.
 Article 436 (a) and (b), Chapter (12), 2008 Constitution.
 Ward or Village Tract Administration Law, Chapter XIV, Section 31.
 This law, proposed by the Thura Shwe Mann-led Legal Affairs and Special Cases Assessment Commission, was widely shared through social media in April and May 2017 but it has not been discussed in parliament.