Exploring Access to Justice and Informal Justice Systems in Myanmar
Ban Li Hawng Day describes how informal justice systems work in Kachin State. Photo: Jessica So/UNDP
Seventy-four year old Myitkyina resident Ban Li Hawng Day has a lifetime of experience with Kachin traditions and customary practices. While the quiet man claims that he is not well-educated, he is highly respected by his peers and his community, and has been elected to the central committee of the Kachin Literature and Cultural Association. The Association promotes Kachin culture, language and dance and plays a role in helping people settle disputes through its judicial committee, of which Ban Li Hawng Day is the chairperson.
Sitting in the shadow of the great totem poles in the Manau compound in Myitkyina, Ban Li Hawng Day explained how the Kachin Literature and Cultural Association serves as a pathway for dispute resolution.
“When the three of us on the judicial committee receive a complaint letter, we sit together and make an inquiry. We conduct an investigation, and then we convene the parties together for a hearing. After listening to witness testimonies from both sides, we sit as a committee and analyze the case. We make recommendations and comments, and then we present our decision to the parties.” The most common cases settled by the Association include divorce and disputes over land possession. “We try our best to be fair to everyone,” Ban Li Hawng Day noted.
The role of Ban Li Hawng Day and his fellow committee members in solving disputes is just one of the justice pathways explored in UNDP’s 2015-2016 Study on Access to Justice and Informal Justice Systems. The research study explores how people seek access to justice; what their perceptions are of the formal justice system; and what range of informal justice processes exist and how they operate. The research also seeks to understand the issues that most concern local communities.
The research is conducted by a team that meets communities, holds focus group discussions, speaks with community members and administers household surveys. Another team speaks with judges, police, law officers, and General Administration Department administrators to understand the perspective of justice sector officials. The research was carried out in 5 townships in Rakhine state last October and November, and in 4 townships in Kachin state in January and February. The research team is in Shan state currently to conclude the research in 7 townships that span northern, southern, and eastern Shan. The findings from this study will help identify ways for UNDP to support the reform of the justice sector and help improve justice service delivery at the local level, particularly for women, children and minority groups.
Early findings from the research in Kachin state reveal a wide spectrum of socially-acceptable pathways for solving private disputes outside of the formal court system. Some pathways, such as settling disputes through the Literature and Cultural Associations like the one that Ban Li Hawng Day sits on, are rather formal and more likely to adhere to procedures and traditional rules. On the other hand, many people prefer negotiating directly with the opposing party or seeking help from an influential individual in their community such as a traditional elder, a local administrator or a religious leader. Underlying these informal ways of problem solving is the importance of reaching a common understanding among parties. The processes tend to seek an outcome that preserves communal harmony and is satisfactory towards all.
In some countries, over 80% of disputes are resolved through informal justice mechanisms. Although no figure exists for Myanmar, it is clear that many people in Myanmar currently prefer to settle disputes through informal, socially-acceptable pathways instead of utilizing the formal system. Consequently, a comprehensive approach to improving access to justice at the local level must also engage with customary and informal ways of solving problems. The UN has formally acknowledged the importance of understanding and engaging informal justice mechanisms; this study is a first step in better understanding the ways people seek to access justice, both through the formal and informal systems that exist in Myanmar, and the challenges and opportunities for increasing access to justice.