This question was posed by a member of the ACE Practitioners' Network through the "Ask a question" function in Electoral Advice.

Introduction

 In early 2010, Myanmar's leadership vowed to hold parliamentary elections later during the year. As of today no specific date has been set, however several sources have indicated that elections will take place either in October or November 2010. The upcoming elections will be the first after the 1990 national polls, in which Aung San Suu Kiy's National League for Democracy (NLD) won an overwhelming victory, which however was not recognized by the generals who prevented NLD from forming a government. Furthermore, the results of the 1990 elections have recently been formally annulled under electoral laws enacted for the polls expected in 2010. The junta leaders declared the 1990 election result invalid because the poll had taken place under a law repealed by the new legislation.  

The upcoming 2010 polls were preceded by the May 2008 referendum on Myanmar's constitution which, according to several sources, bars those candidates from running for presidential office who are: citizens of Myanmar but whose parents, spouse, one of the legitimate children of their spouses owe allegiance to a foreign power, are subject of a foreign power or are citizens of a foreign country. The constitution also guarantees 25% of parliamentary seats to the military and allows the president to hand over all power to the military in a state of emergency.

When the stipulations of the current Constitution were announced to the public in February 2008, the following question was posed by one of the members of the ACE Practitioners' Network:

According to the article "Myanmar bars Suu Kyi from elections" published on Al Jazeera 20 February, the new draft constitution of Burma (Myanmar) states that a “Myanmar citizen with a foreign spouse and non-citizen children would be disqualified” as a candidate running for public office. Aung San Suu Kyi, mother of two British children, is therefore barred from running for elections in her own country. 

• 1. Do you know of any countries that have similar provisions barring citizens from running for office on the basis of spouses and children not being nationals (or similar provisions)?
• 2. Can such requirement be defined as an unacceptable restriction? What is an acceptable and democratic standard/best practice for candidate and party registration requirements?

The elections in Myanmar are to take place shortly and according to some interpretations, the constitution approved in the May 2008 referendum stipulates the barring of Aung San Suu Kyi from running. It is therefore relevant to pose the above mentioned questions and review the discussion of the ACE Practitioners that ensued.

Summary of the Responses

Democratic and Undemocratic Restrictions Concerning Citizenship and Residence 

 All of the members of ACE Practitioners' Network participating in the discussion highly condemn the measures adopted by Myanmar's leadership that resulted in barring Aung San Suu Kyi or any other candidates who are in a similar situation, from running in the elections. On a more general level, the practitioners also agree that imposing restrictions that disable candidates from running based on the fact that their spouses or children hold foreign citizenships are not democratic. 

While it is true that many countries have specific restrictions for standing for office such as citizenship by birth or age, the cases in which ad hoc measures meant to prevent certain candidate(s) from running, were adopted, were constrained to non-democratic countries or dictatorships. As Michael Hendrickse points out, several factors such as "the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relationship between the limitation and its purpose; and less restrictive means to achieve its purpose" should be considered when determining the rationality and justifiability of such restrictions in a democratic society. Supporting this train of thought, Magnus Ohman quotes from a decision made by the European Court of Human Rights regarding the eligibility criteria for running in elections, which holds that: "... while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires that the eligibility procedure contains sufficient safeguards to prevent arbitrary decisions." 

As an illustration of the ad hoc restrictions, Michael Hendrickse draws attention to the case of Zambia where the requirement to be a citizen by birth had originally not been implemented, but was later institutionalized by the constitution to keep Kenneth Kaunda from running in the 1996 elections. As Ilona Tip adds, in this particular case, the constitution introduced a requirement that not only the candidate, but also his parents had to be citizens by birth or descent. Similarly, Tayeb Merchoug mentions the case of Cote d'Ivoire where the former Prime Minister was disqualified from running in presidential elections based on the fact that he was not born in the country. This decision was not only denounced by the UN, but ultimately resulted in a failure to hold elections at all. As a slightly different example, Theo Noel mentions Cambodian ruling CPP which tried to include a residence clause in the law, so that Prince Ranarith would not be able to run in 1998 elections.
 

The Cases of Double Citizenship and Other Exclusions 

Developing the discussion further, Theo Noel also brings up the issue of double citizenship, which is allowed particularly in many developing countries as numerous citizens of these countries reside abroad. Noel notes that some countries, which want to prevent former opponents from running in elections, make double citizenship an unacceptable condition for standing for the office. Furthermore, as Michael Hendrickse points out, these artificially created restrictions are often included in constitutions, which serve as the supreme laws against which all other human rights infringements should be judged. 

Unfortunately, the arbitrary restrictions mentioned above are not the only examples of undemocratic measures implemented in various countries. However, there have also been successful cases in which attempts to institutionalize such requirements were averted. Reg Austin for instance mentions the cases of Botswana and Zimbabwe, where laws that attempted to deprive female nationals of their citizenships were designated as unconstitutional. Additionally, according to Magnus Ohman's 2002 study of disqualification criteria for parliamentary candidates in 49 out of 53 African countries, none had a criterion similar to the one in Myanmar implemented. 

The most current developments in Myanmar

Myanmar's military leadership has passed electoral laws necessary for the elections to take place. According to some sources, such as the Irrawaddy, one of the laws bars electoral participation by members of a political party if they have been convicted in court. Aung San Suu Kyi is categorized as a “a convicted criminal” for breaching her house arrest as she allowed an American citizen John Yettaw to briefly stay at her house after having swum there across the lake in 2009. As a result, Aung San Suu Kyi's house arrest has been extended until November 2010. Other sources suggest a somewhat alternative interpretation of the electoral laws - see "Other Sources" below.

The electoral laws also establish rules for setting up the Electoral Commission, which has been appointed by the current military government, and the Commission’s decisions cannot be appealed. The Irrawaddy reports that some of the requirements for Commissioners include: age (members must be at least 50 years old), lack of adherence to any political party (i.e. members must not be members of any political party) and personal integrity and reputability (only persons viewed as "distinguished and reputable” shall be appointed). For these reasons, critics voiced their fears that the Election Commission will be staffed by military loyalists. 

Electoral laws also prohibit those with criminal convictions or those who are members of religious orders from belonging to a political party, which according to BBC News ultimately means that jailed political activists - including many of the NLD's top leaders but also monks who held protests against the government in 2008 - cannot take part in the elections. 

Replies were received with thanks from:

Michael Hendrickse

Reg Austin

Ilona Tip

Tayeb Merchoug

Debashis Sen

Magnus Ohman

Theo Noel

Other Sources:

Burma (Myanmar) ACE Country Page
Burma (Myanmar) ACE Electoral News Archive

For an alternative way of interpreting the electoral laws released by Myanmar's leadership in March 2010, please see Richard Horsey's: Preliminary Analysis of Myanmar's 2010 Electoral Laws 

I do not know of democratic governments imposing such a restriction, it appears to me as tailored to prevent her from running; only in countries under dictators will this provision be enforced. The CPP in Cambodia had tried in 1998 to include a residence clause to prevent Prince Ranarith from running but it didn't work. This provision is also related to the double nationality which many countries permit presently, particularly developing countries because many of their citizens reside abroad; some countries will disallow double citizenship, in certain cases to prevent a former opponent from running.

It is, in my opinion, an unacceptable restriction and a violation of human rights.

In Canada, the moment you're granted citizenship, you have access to all your rights, including running as a candidate.

Theo

In South Africa, there is no such restriction. Section 19 of our Bill of Rights, which is entrenched in our Constitution, grants every citizen to vote and be voted for, and if successful, to hold office. In terms of membership of the National Assembly (from amongst whom the President is chosen), every citizen who is qualified to vote can stand for office.

Any right can only be limited by law of general application, and in the case of this specific restriction, it would appear that it is tailored and targeted at one individual.

There are democratic countries that impose restrictions, such as that the person standing for President must be a citizen by birth, and they may have good reasons for doing so. When the motivation for such provision is specifically aimed at preventing a particular individual from standing, then it cannot stand muster - In Zambia, the qualification that one must be a citizen by birth was not a previous requirement but was then brought in to keep a well known Zambian from participating in an election.

Too often, undemocratic provisions are included in a Constitution, and then once adopted, the Constitution is held up to be the supreme law of the country against which infringements of human rights are measured, this is inimical. A draft Constitution must therefore itself be measured against accepted democratic principles.

In the end, one must consider whether this restriction or limitation is "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including: the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relationship between the limitation and its purpose; and less restrictive means to achieve its purpose."

When judged against these criteria, I do believe that this particular restriction is an infringement of the rights of Aung San Suu Kyi and her fellow citizens. The draft Constitution can consequently also not be in keeping with that of a modern democratic State.

Question 1: Back in 2002 I studied disqualification criteria for Parliamentary candidates in 49 out of the 53 countries in Africa. None of them had a criterion of this kind.

Question 2: As others have commented, it seems clear that this has been designed to disqualify a single individual. The main principle must be that eligibility/disqualification criteria should be reasonable and not arbitrary.

The European Court of Human Rights wrote in relation to a case of a candidate being refused nomination in Ukraine:

‘The right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic regime, would be illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires that the eligibility procedure contains sufficient safeguards to prevent arbitrary decisions.’

(As quoted in Goodwin-Gill, Guy S. (2006) Free and Fair Elections, New Expanded Edition. Inter-Parliamentary Union, Geneva. Page 65)

The current Burmese regime has indicated that a referendum on a new draft constitution and democratic elections will be held respectively in May 2008 and in 2010.

Under this draft constitution there is at least one specific restriction that is unacceptable, namely that a candidate with foreign spouse and non-citizen children would be disqualified. To my knowledge, Mrs. Aung San Suu Kyi's husband died in 1999 and their children have both Burmese and British citizenship. Therefore, even under this unfair and very questionable provision, Mrs. Aung cannot be disqualified to run for office. In this regard, it must be noted that her party, the NLD won 80 percent of the popular vote in 1990.

I am also of the opinion that this restriction was made by the current Burmese authorities, especially to prevent a political leader to run for office.

There was one case in Cote d'Ivoire (which I believe the authorities also abused the internationally accepted standards) where the current president through the Supreme Court (nominated by him) disqualified an Ivoirian (former Prime Minister) to run for presidential elections, on the basis that he was not born in Cote d'Ivoire. Since then, the political situation in the country has been paralysed and until now no elections have been scheduled, despite that the mandate of the current President is well over. The United Nations, at that time, told the government officials that such a provision was unacceptable under normal international norms and that therefore the UN would not get involved with the electoral process.

Since the UN are still involved with the current political and Human Rights issues in Myanmar, I strongly believe that its representative should send a clear message to the authorities that such unfair provision will certainly not resolve the current political crisis.        

On behalf of Reg Austin.

I don’t know of any country which has sought to exclude a candidate on these grounds.

However there have been well regarded cases in both Botswana and Zimbabwe where laws which sought to deprive WOMEN NATIONALS of their citizenship (and thus their Vote or their Right to Stand), were struck down as unconstitutional.

Regards,

Reg

On behalf of Illona Tip.

As far as we know there is no case in any of the countries in SADC which have qualifications for candidates even remotely like that.

However, SADC countries have, like the military regime in Burma, adopted qualifications in the past to bar specific candidates from standing for office. One instance that springs to mind is the outrageous amendments made to the Zambian constitution under Chiluba that aimed at disqualifying Kenneth Kaunda and his deputy from standing for office in 1996. The Compendium of Elections in Southern Africa observes (page 381, http://www.eisa.org.za/WEP/zam1996election.htm):

The new constitution introduced a requirement that not only should a presidential candidate be a Zambian but that his/her parents must also be Zambians by birth or descent. In addition the amended constitution stipulated that a person, who had been elected president on two previous occasions, would not qualify to contest elections. Furthermore chiefs were required to give up their chieftaincy if they wished to contest parliamentary elections. UNIP [United National Independence Party] interpreted the new citizenship qualifications for presidential elections and the two term limit as blocking Kaunda from standing. It likewise considered the clause applying to chiefs as preventing its vice-president, who was a chief, from contesting the presidency.

The EISA website has pages for all the elements on the "Constitution" pages (see for e.g. http://www.eisa.org.za/WEP/mal5.htm for Malawi) and the "Electoral system" pages (see for e.g. http://www.eisa.org.za/WEP/mal4.htm for Malawi).

• One of these pages would, leading off the "Electoral system" pages, under the heading "Nomination of candidates" give details of qualifications (and disqualifications) for candidates standing for the presidency and for the various houses of parliament (in Malawi's case the National Assembly only, since Malawi has a unicameral system).

An unacceptable requirement, surely

-Debashis sen, India