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And Shan State (East) Ethnic Armed Actors and Justice Provision in Myanmar Brian McCartan and Kim Jolliffe October 2016 Acknowledgements The authors would like to thank everyone who contributed to this paper, including the many members of ethnic armed organizations, civil society organizations, political parties, and independent observers who will remain anonymous, but took time to provide valuable information. This paper has benefited immensely from the generous feedback provided by Susan Lee and Lisa Denney who reviewed early drafts of the paper. About the Authors Brian McCartan is a PhD candidate at the S. Rajaratnam School of International Studies, Nanyang Technological University. He has worked for over two decades in Southeast Asia, specializing in security, ethnic politics, and development, with a particular focus on Myanmar. Having worked in Southeast Asia for over eight years, Kim Jolliffe is an independent researcher, writer, analyst and trainer, specializing in security, aid policy, and ethnic politics in Myanmar. He is the lead researcher on the Social Services in Contested Areas (SSCA) research project. Brian McCartan is the primary author of this report, while Kim Jolliffe provided additional primary research and editorial input. About The Asia Foundation The Asia Foundation is a nonprofit international development organization committed to improving lives across a dynamic and developing Asia. Informed by six decades of experience and deep local expertise, our programs address critical issues affecting Asia in the 21st century—governance and law, economic development, women’s empowerment, environment, and regional cooperation. In addition, our Books for Asia and professional exchanges are among the ways we encourage Asia’s continued development as a peaceful, just, and thriving region of the world. Headquartered in San Francisco, The Asia Foundation works through a network of offices in 18 Asian countries and in Washington, DC. Working with public and private partners, the Foundation receives funding from a diverse group of bilateral and multilateral development agencies, foundations, corporations, and individuals. Preface As a result of decades of ongoing civil war, large areas of Myanmar remain outside government rule, or are subject to mixed control and governance by the government and an array of ethnic armed actors (EAAs). These included ethnic armed organizations, with ceasefires or in conflict with the state, as well as state-backed ethnic paramilitary organizations, such as the Border Guard Forces and People’s Militia Forces. Despite this complexity, order has been created in these areas, in large part through customary justice mechanisms at the community level, and as a result of justice systems administered by EAAs. Though the rule of law and the workings of Myanmar’s justice system are receiving increasing attention, the role and structure of EAA justice systems and village justice remain little known and therefore, poorly understood. As such, The Asia Foundation is pleased to present this research on justice provision and ethnic armed actors in Myanmar, as part of the Foundation’s Social Services in Contested Areas in Myanmar series. The study details how the village, and village-based mechanisms, are the foundation of stability and order for civilians in most of these areas. These systems have then been built through EAA justice systems, which maintain a hierarchy of courts above the village level. Understanding the continuity and stability of these village systems, and the heterogeneity of the EAA justice systems which work alongside them, is essential for understanding civilians’ experiences of justice and security across Myanmar, as well as the opportunities for positive change that exist in Myanmar’s ongoing peace process and governance reforms. This research paper is authored by two independent researchers, Mr. Brian McCartan and Mr. Kim Jolliffe. Brian McCartan specializes in security, ethnic politics and development, while Kim Jolliffe specializes in areas of security, ethnic conflict and aid policy. The report was generously funded by the United Kingdom’s Department for International Development (DFID) and the Australian Department of Foreign Affairs and Trade (DFAT). The opinions expressed in this report are solely those of the authors and do not necessarily reflect those of DFID, DFAT or The Asia Foundation. Dr. Kim N.B. Ninh Country Representative The Asia Foundation Myanmar Table of Contents Acronyms ............................................................................................................................................... i Glossary ................................................................................................................................................. ii Executive Summary .............................................................................................................................. iii Section ONE: Introduction .................................................................................................................... 1 1.1 Armed organizations and justice in theory ............................................................................... 1 1.2 EAO justice in Myanmar ........................................................................................................... 3 1.3 Methodology ............................................................................................................................ 3 1.4 Scope and focus of the research ............................................................................................... 4 1.5 Structure of the paper ........................................................................................................... 4 Section TWO: The Myanmar Justice System and Influences on EAO Justice ...................................... 5 2.1 How EAO justice systems have been influenced by the state ................................................. 5 2.2 Colonial Burma (1886-1948) ..................................................................................................... 7 2.3 Independence and parliamentary Burma (1948-1962) .......................................................... 9 2.4 The Ne Win era (1962-1988) ................................................................................................... 10 2.5 The State Law and Order Council and the State Peace and Development Council (1988-2011) .... 12 2.6 Myanmar’s current judicial administration ............................................................................ 12 Section THREE: Village Justice............................................................................................................. 14 Section FOUR: EAA Justice Systems in Southeast Myanmar ............................................................... 17 4.1 Karen National Union / Karen National Liberation Army.......................................................... 19 Institutions and structures .................................................................................................... 19 Laws and forms of crime ......................................................................................................... 23 Judicial process ....................................................................................................................... 24 Punishments ........................................................................................................................... 27 Crimes by KNU personnel ....................................................................................................... 27 Reforming the justice system ................................................................................................. 28 4.2 KlohtooBaw Karen Organization (KKO) / Democratic Karen Benevolent Army (DKBA) ......... 28 Judicial process ....................................................................................................................... 28 4.3 New Mon State Party / Mon National Liberation Army ......................................................... 29 Institutions and structures ..................................................................................................... 29 Laws ........................................................................................................................................ 30 The administration of justice .................................................................................................. 30 Punishments ........................................................................................................................... 32 Crimes by MNLA personnel ..................................................................................................... 32 4.4 Karenni National Progressive Party / Karenni Army ......................................................... 32 Institutions and structures ..................................................................................................... 33 Laws ........................................................................................................................................ 33 The administration of justice .................................................................................................. 34 Punishments ........................................................................................................................... 34 Military justice and planned reforms ....................................................................................
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