1. The Union Election Commission (UEC) issued a statement in connection with the instructions in accordance with Sections 74 and 76 of the Evidence Act on 7 December 2020. The paragraph (1) of the announcement refers to the Statement issued by the Tatmadaw Information Team on 30 November.
2. As regards the paragraph (2) which says that in giving reasons for submitting objection of voters from military units, permits are being asked to copy the relevant documents in referring to the sections 74 and 76 of Evidence Act, it is obvious that the Evidence Act applies to all judicial proceedings in or before any Court. As the disputes may occur whether the Election Tribunal is a court or not, the Section 78 of the respective Hluttaw Election Laws, which states, “In examining the electoral objections, the Election Tribunal has the right to apply the provisions of the Evidence Act” vests the Election Tribunal with the right to exercise the Evidence Act. Hence, the provisions of the Evidence Act are related to the case of examining the electoral objections by the Election Tribunal.
3. According to the Section 77 of the respective Hluttaw Election Laws, the case of examining the objections by the Election Tribunal shall be deemed as a judicial process. The Section 77 of the respective Hluttaw Election Laws states, “The Election Tribunal has the right to exercise the powers vested in the Court under the Code of Civil Procedure. In addition, it may, on its own motion summon and examine any person who is considered to be able to produce material evidence.”
4. Moreover, Rule 88b of the respective Hluttaw Election Rules states that an objector shall provide a brief account of the important evidences in the letter of objection; that if necessary he/she shall number the paragraphs of the objection, and that the verification of objections shall be signed by the objector in accordance with the provisions of the Code of Civil Procedure relating to verification of pleadings. The Rule 94 of the Rules also states that without contrary to the provisions of the Rules the Election Tribunal shall examine as civil cases in accordance with the procedures of the Code of Civil Procedure. According to the Rules, the Election Tribunal shall be deemed as a judicial process.
5. In the Evidence Act, documentary evidence means “all documents produced for the inspection of the Court; such documents are called documentary evidence”. Hence, the act of demanding the permission to copy the documents to be presented to the Election Tribunal, which has the right to apply the Evidence Act and the Code of Civil Procedure, for hearing the case in respect of election objections and which shall be deemed as a judicial process, is legally appropriate.
6. As regards the paragraph (3) the Northern Command asked the permission to copy the documents under the rights of the concerned voters. The election sub-commissions at different levels also have the right to permit the duplication of the ones that can be allowed and to deny the request with firm reason.
7. The paragraph (4) says that “the Hluttaw Election Laws and Rules do not stipulate that requests for a copy of election document shall be allowed.” According to provisions in respect of the electoral malpractices and the filling of electoral objections, the said statement does not encompass the entire respective Hluttaw Election Laws. As the electoral objections shall be examined in accordance with the Code of Civil Procedure and the Election Tribunal has been empowered with the right to exercise the Evidence Act, Sections 74 and 76 of the Evidence Act become inclusive in the event of electoral objections in respect of the electoral malpractices surface.
8. In the paragraph (5), it is stated that “Section 78 of the election laws provided for that only when examining the electoral objections, the Election Tribunal has the right to apply the provisions of the Evidence Act.” In this statement, the expression “in examining the electoral objections” of the original provision, which stipulates, “In examining the electoral objections, the Election Tribunal has the right to apply the provisions of the Evidence Act” is substituted with the expression “only when examining the electoral objections”. It is found that this substitution has ruined the essence of the original provision. Faithfulness is of vital importance in referring a provision of a law. It must be aware that the addition of the word “only when” can change the essence and definition of the original provision a lot.
9. The paragraph (5) also states “The Election Tribunal of the Union Election Commission has the right to apply the provisions of the Evidence Act only when examining the electoral objections. It does not define ‘must apply’”. In fact, the Section 78 is not a provision that says that Evidence Act may be applied. It is a provision that entrusts the Election Tribunal with the right to apply the Evidence Act. The expression “It does not define ‘must apply’” can be deemed a wrong interpretation of the expression “has the right to apply”. So, it can be remarked as a wrong interpretation in terms of law.
10. In the paragraph (6), it is stated, “the Union Election Commission has refused to issue unlawful directives to the respective election sub-commissions as requested by the Tatmadaw Information Team.” Whatever attitude the UEC has, the request to copy the documents on the electoral objections, the Election Tribunal whose nature of work is concerned with court hearing and which has the right to apply Evidence Act and the Code of Civil Procedure, is going to examine, is made in accordance with the legal right of a citizen to vote and file an objection. So, it doesn’t amount to issuing an unlawful directive.
11. There are two principles under the natural justice or in other words the duty to act fairly. The first principle is “against bias” or “Nemo judex in causa sua” in Latin legal term. The second principle is “the right to fair hearing” or “Audi alteram partem” in Latin legal term. Hence, the Union Election Commission should work towards removing all the doubts through transparency, purity and fairness based on the natural justice.
Tatmadaw Information Team