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Myanmar's plural justice system

Security and justice sector development, BLOG SERIES: Justice and peace

There is no single justice provider with recognised authority to enforce the law throughout Myanmar. Long-running violent conflicts and plural power structures mean providers and systems are distinct in some places and overlap in others. This blog looks at some of the different justice chains people follow to redress grievances, why, and what that means for wider peace and statebuilding dynamics. The blog accompanies new research by Saferworld and ODI for MyJustice - implemented by the British Council in Myanmar and funded by the European Commission - that looks into local experiences of and access to justice in Mon State and Yangon Region.

Myanmar's plural justice providers

The most common response to disputes is not to report at all. People fear and distrust the state, have limited understanding of how to use the law, and pervasive socio-religious customs encourage accepting problems as inevitable manifestations of karma to bear internally. A lack of reporting is especially apparent among women. It is also symptomatic among the poor, religious minorities, migrant workers, people of non-conforming genders, and sex workers.

If people do report an issue, the common preference is to resolve it at the lowest level possible. The majority of disputes do not proceed further than a facilitator, for instance ‘10 and 100 household heads’,[1] elders, community-based organisations, political party representatives, religious leaders, astrologers and fortune-tellers. Where they cannot appease parties, facilitators will bring complaints to the first provider within the formal justice system, the ward and village tract administrators (W/VTAs). The W/VTAs focus on reaching swift resolutions based on reconciliation, drawing on a combination of national law (known as Union Law) and custom/village law to guide their decisions.

Where the W/VTA cannot resolve the matter, or where a party is dissatisfied with the result, cases can be referred up to the township administrator for civil matters, or to the police for criminal ones. This is not common, however, given distrust of authorities and the time and costs involved. In parts of Mon State, parties can also request a matter be referred to the Border Guard Forces (BGFs), or to Ethnic Armed Organisations (EAOs) such as the New Mon State Party (NMSP) or the Karen National Union (KNU). Religious leaders, labour unions and government committees may also play a role in resolving disputes depending on their nature. These actors make up the reality of Myanmar’s plural justice system and are captured in Figure 1, where darker shaded boxes highlight more used avenues, and lighter boxes less.[2]  

Figure 1: Justice chains in practice

 

Pluralism, power and peace

Despite the plurality of providers, people do not tend to forum shop. Instead they use the provider that is expected of them according to their custom, income, understood role in society and identity. Beyond that, the perceived effectiveness of a provider to enforce decisions matters too, and Mon people spoke about preferring NMSP courts over formal ones because they were fairer, quicker, and carried authority.

What do these parallel EAO structures of power and governance mean for the wider statebuilding agenda in Myanmar, particularly at the borders where central authority is weakest? Despite concerns about any systems that challenge state primacy of security and the rule of law, the deep societal roots underneath these structures means they offer opportunities for peace. It is evident that a single inclusive, responsive and accountable justice system is a way off. Anyone working on peace and justice will have to cooperate with plural providers, and as long as conversations about reform remain open and inclusive, then transformations can take place at a pace that is sensitive and predictable. Indeed the authority that EAOs and BGFs enjoy will be invaluable in fostering the conditions necessary for peace, both in terms of providing continuity and immediate redress for disputes, and laying the foundations for more profound and transformative reforms on the path towards federalism. This quest for convergence is not without precedent. We have seen attempts to converge state and EAO systems in the health and education sectors, some good and some less so, but all very much in line with the National League for Democracy’s stated intention of reaching out to ethnic groups, and building upon the legitimacy and functionality of local authorities.[3]

Implications for those working on justice

Myanmar is a contested state with hybrid legal systems reflecting hybrid political order. Existing justice providers are entrenched in systems of power and rules that are understood by people and are strongly linked with identity. Conflict sensitivity is paramount in a country still working towards peace: who and what is supported is a political decision that will have ramifications for local configurations of power. As such, embracing the complexity of the plural system is preferable in the short-term over any defaults to formal, state-centric approaches to justice reform that are unlikely to be popular or enforceable, and carry significant risk of exacerbating conflict drivers. Yes, people have dispute resolution options of limited quality and would clearly benefit from ways to expand or renegotiate the existing available justice options. However, establishing new processes and institutions that adhere to overtly normative or state-centric notions of what a justice system looks like and how it operates are unlikely to make inroads. In fact, if reforms are considered too ‘Burmese’ they are even likely to be conflict-insensitive. Instead, taking a slower, consultative and inclusive approach would be far preferable for those wishing to improve access to justice without risking destabilising the state and the ongoing peace process.

[1] 10 and 100 household heads, also called village heads or village administrators, were included in the administrative system during colonialism and support the VTA. While not part of the formal government structure, they are elected by communities or appointed by VTAs. In 2012, 10 and 100 household heads were abolished but remain active in some places. (UNDP, 2015: 61).

[2] There is a danger, with little written on justice-seeking behaviour in Myanmar, that diagrams aiming to capture practice become more fixed than is empirically accurate. What is set out here are the chains as described by respondents. These would look different in other locations and for others in Mon State and Yangon who may have had different experiences.

[3] See the NLD National Health Network, “Programme of Health Reforms: A Roadmap Towards Universal Health Coverage in Myanmar (2016-2030)”

Read the MyJustice report: Making big cases small and small cases disappear: experiences of local justice in Myanmar.

Read previous blog posts from our justice and peace series.

 

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Conflict sensitivity is paramount in a country [like Myanmar] still working towards peace: who and what is supported is a political decision that will have ramifications for local configurations of power.

Will Bennett

The opinions expressed in articles or comments on this blog do not necessarily reflect the opinions or policies of Saferworld. Saferworld is not responsible for the accuracy of the information in blog articles written by guest contributors.

Please note that comments on blog posts are moderated, and anything offensive or threatening may be removed.

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