The SAC quickly announced they would hold fresh elections, either in 2023 or later, steering in this direction with changes to the election and political party registration laws, changes to the electoral system seemingly aimed at manufacturing electoral outcomes in their interest, co-opting or coercing small or insignificant political parties to join them in this undertaking, and preparing voter list updates. As the military is likely to perpetuate its narrative of fraud and continue with preparing elections aimed at legitimizing their hold on power, it is critical that the international community does not provide any recognition to the junta’s undertakings.

The SAC administration has publicised a new political party registration law on 26 January 2023 which is more restrictive than the previous law. Notably, it extends violations of universal suffrage by excluding members of religious orders, civil service personnel, persons serving a prison term, and members of certain political organisations, among others, from forming or becoming members of political parties. It introduces new excessive requirements to enlist a high number of members within a period of 90 days, to prove considerable party funds, and to open offices in a certain number of townships, as well as the risk of deregistration if no candidates are contesting the elections in a certain number of electoral constituencies or at by-elections. Any existing political party has to re-apply for registration within 60 days since the law’s promulgation or will be invalidated. Taken together, these changes appear to aim at diminishing any chances of a democratic opposition in future elections, and to result in a situation in which only the junta’s political party allies engage in a mock competition, resulting in an undemocratically elected legislature. A number of parties has already registered under the new law, endorsing an illegitimate process.

At the same time, the country experiences unprecedented resistance against the military’s attempt to establish control by force. Pro-democracy actors–some of whom remain in country while others are in exile–are not only supporting civilian disobedience and opposition to military rule, but also seeking to reconfigure the constitutional framework for a future democratic and federal Myanmar. Democratically elected representatives and interim institutions created after the coup have begun to prepare a new institutional framework, in particular with the adoption of the Federal Democracy Charter (FDC) in January 2022, preparing for a new permanent federal constitution to be adopted by a constituent assembly.

In this context, it is advisable to factor in questions of electoral design from an early stage, which can also assist in countering the military’s problematic narratives. In this endeavour, guidance can be found in international human rights law, which provides principles and guidelines for holding democratic elections. Guidance can also be found in Myanmar’s past electoral experiences, as the next generation of lawmakers and election administrators inherit a host of lessons learned from dealing with long-standing systemic and structural problems in the electoral process. Building on an overview of Myanmar’s recent electoral history and deconstructing the SAC’s election-related claims, there are key areas to consider in the process of a federal constitutional design with regards to elections: the overall electoral legal framework, electoral system choice, election management, voter registration (including a clear framework for suffrage rights), and election dispute resolution.

Indeed, the shape of the federal system eventually chosen will have a strong impact on the conduct of elections, and the federal constitution will determine at which level and how the electoral legal framework is legislated. Federal systems provide a division of powers between the centre and the federal units (FUs), with the two levels of government functioning partly autonomously. Comparative experience suggests that in federal systems elections are most often, but not always, an area of concurrent powers, with national legislation regulating national level elections, and federal units’ legislations regulating elections at local level. While there may be different approaches to devolution, the federal framework should protect equality of political rights and be consistent within the federation. Federal election frameworks can be complex arrangements in practice, for both centre and federal unit levels are to be involved in running elections. This implies a clear definition of competencies in the election legislations, and a common arbiter, generally a court, strong and independent enough to protect the federal pact.

Electoral system choices have been a recurring topic in Myanmar since the 2011 political opening. Political and academic reflections have largely revolved around the effects of the existing majoritarian system of first-past-the-post (FPTP) within single-member constituencies based on townships inherited from the colonial period, in particular on smaller political parties and minority groups, as well as around a choice between the existing FPTP and some form of proportional representation (PR). This debate had a particular meaning within the context of the 2008 Constitution which granted the military 25 per cent unelected seats in parliament, a clear violation of basic democratic norms and principles, exacerbated by extreme malapportionment between township-based constituencies.

Choosing a new electoral system may prove complex as political actors involved may have different understandings and expectations as regards the potential benefits of each system. There are a wide variety of systems which are all in principle equally acceptable from the point of view of democratic principles, but produce different outcomes. Awareness of electoral systems and of their effects needs to be part of the discussions from an early stage. Whichever system is chosen should enjoy broad agreement and adhere to the principle of equal suffrage, which, under FPTP, would imply engaging in transparent and inclusive redistricting.

There is no perfect or universal model for election management bodies (EMB) but a range of possibilities how this responsibility could be assumed in a federal system. There is a certain level of correspondence between the shape of the election legislation and the shape of the EMB. In federal contexts, election governance will be determined by the articulation between federal and state laws, the degree of decentralisation of the EMB, the capacity to supervise the implementation of the legislation in a decentralised EMB, and the need for the EMB to obtain cooperation from executive authorities. For the drafters of a future federal constitution, it is essential to develop an election administration structure which inspires confidence of both the population and the political stakeholders. The independence and impartiality of the election administration is not only crucial to the confidence between the state institutions and the citizens, but also the bond between the federal units composing the federation. The quality of the electoral process will be instrumental to the legitimacy of the elected federal and local institutions and ultimately to addressing long standing conflicts.

Voter registration has to be approached from two angles–defining who is eligible to vote and defining the process of how eligible persons become voters. While federal units may be in charge of the process of voter registration, common rules must apply for voter eligibility in the federal system, in particular what concerns citizenship. Lack of voter inclusion–by law or by the process of voter registration–can greatly undermine an electoral process. Therefore, a shared understanding needs to be reached on who should be eligible to vote and how the voter list should be established. Two issues raise specific concerns in a federal system: Divergent definitions or practices in terms of granting citizenship and/or ID documents if done at federal unit level may have a considerable impact on the quality and legitimacy of an election process. Similarly, registering voters would typically imply some form of involvement from local authorities. Drafters of the future federal constitution would need to keep these aspects in mind and their potential impact on the running of elections when agreeing on a division of powers.

The absence of a functional system for election dispute resolution (EDR) was one of the many weaknesses of the 2008 Constitution and should be addressed whatever institutional framework is chosen in the future. EDR models tend to be influenced by the institutional set-up of a country, particularly the shape of the judiciary and of the EMB. Looking at global practices, EDR can be handled by ordinary courts, by special/electoral courts, by election commissions and courts, by ad hoc committees, by constitutional courts, or by a combination of different bodies. In a federal context, a fully functional election dispute resolution system–in essence a functioning, competent, independent judiciary–is not only there to protect the rights of the citizens but plays a role in protecting the integrity of the union. To the extent that the federal bond may be at stake during election processes, the EDR system is part of the tools necessary to preserve a federal union.

This is primarily meant as a contribution to ongoing discussions among democratic decision-makers as regards electoral design options within a federal framework. It is also meant to contribute to the international community’s understanding of the centrality of elections, both in the strategies of the military junta and in a future federal path chosen by democratic forces. Taking past experiences and long-standing shortcomings of democratic elections in Myanmar into account, there are general recommendations which can contribute to discussions on a new federal framework among political stakeholders.

This is an abridged and updated version of the summary of the policy paper ‘Elections at a Crossing Point: Considerations for Electoral Design in Post-Coup Myanmar’ published by International IDEA in October 2022.