Kachin Warlord Loses Parliamentary Seat in Post-Election Tribunal

By Htet Naing Zaw & Ben Dunant 25 June 2016

Veteran Kachin militia leader Zahkung Ting Ying will have to forfeit his seat in the Union Upper House, according to a decision reached by a post-election dispute tribunal under the Union Election Commission (UEC) in Naypyidaw on Friday morning.

Zahkung has the option of appealing the tribunal’s decision, although it is not currently clear whether he will do so.

Zahkung was defending two cases involving intimidation, defamation and alleged violence during the election campaign period last year. The cases in question were filed by rival independent candidate Yaw Na and a National League for Democracy (NLD) candidate, San Wai Khaung Lwan, who competed in another constituency in the same area of eastern Kachin State.

As an independent candidate in the November election, Zakhung won the Upper House seat of Kachin State-5, covering Chipwi, Tsawlaw and Injingyang townships, a sparsely populated area home to fewer than 20,000 people, according to the 2014 census. He was lawmaker also under the previous government, from 2011.

Zahkung’s NLD competitor, Kyaw Kyaw Oo, who was among those targeted by the alleged intimidation and violence, did not file a tribunal case himself out of fear for his safety, according to his colleagues. This prompted his party colleague San Win Khaung Lun to do so on his behalf.

As was reported previously by The Irrawaddy, Zahkung sent a letter to NLD candidates on Sept 22, early on in the election campaign period, forbidding them from campaigning in “Kachin State Special Region 1”—an area coinciding with his electoral constituency controlled by Zahkung’s own militia, the New Democratic Army-Kachin (NDA-K), which is firmly allied with the Burma Army and became a Border Guard Force in 2009.

Although the Kachin State Election Sub-Commission negotiated a settlement between Zahkung and the NLD, allowing the latter’s candidates to campaign in the area, on Oct 12 the NLD candidates abandoned a planned campaign event in Chipwi Township after its members were attacked by around 30 men allegedly linked to Zahkung and the NDA-K.

Zahkung issued two more threatening letters on Oct 21 and Nov 1, calling the NLD “invaders” and “public enemies,” and personally attacking Aung San Suu Kyi for “betraying her people” by marrying a foreigner. Copies of the letters were available for public view outside the UEC during the tribunal sessions.

The UEC tribunal on Friday ruled in favor of the two cases against Zahkung Ting Ying, citing his breach of Article 66 of the Upper House Election Law, which outlines electoral “malpractices” including “creating violence, making false accusation or writing, creating public unrest to a party or person for the purpose of electing a [parliamentary] candidate.”

San Wai Khaung Lun, who filed one of the cases, told The Irrawaddy: “The commission ruled that Zahkung Ting Ying committed malpractices in the election. So, we won.”

“Zahkung Ting Ying has been recalled from Constituency 5 [of Kachin State] and will be replaced with U Yaw Nar,” Tin Tun Thein, a lawyer representing the NLD at the tribunal session told The Irrawaddy, since independent candidate Yaw Nar was the runner up in the poll with around 3,000 votes to Zahkung’s approximately 5,000.

The lawyer representing Zahkung Ting Ying, who was absent at the tribunal session, said he would discuss with his client whether or not they would appeal the decision.

In another UEC tribunal decision on Friday, Zahkung Ting Ying’s son Zahkung Ying Seng—the winning candidate for Chipwi Township (2) in the Kachin State parliament for the Unity and Democracy Party of Kachin State—successfully defended a case brought against him by Kaw Baung of the NLD. Although the accusations of intimidation linked to the NDA-K militia were similar to the cases filed against his father, his culpability was purportedly less clear.

“We lost the U Zahkung Ying Seng case. He will remain the lawmaker,” said NLD’s lawyer Tin Tun Thein.

The Friday tribunal session at the UEC, attended by The Irrawaddy, was open to the public and had an audience of around 30. There were no indications of bias, or restrictions placed on the individuals pursuing or defending the electoral dispute cases.

Due to Zahkung Ting Ying’s close allegiance with Burma’s military and his clout as a local power broker in Kachin State, this tribunal case was a test of the fairness of the UEC’s post-election dispute resolution process. That the case was decided against him will likely bolster confidence in Burma’s election commission, after it administered a general election widely perceived as free and impartial.

The tribunal process falls short of international standards in lacking structural independence from the UEC. Tribunal judges in all cases have been senior members of the UEC; although they had the option to appoint independent legal experts as judges, the UEC chose not to do so. Appeals against tribunal decisions go only to the UEC, whose decision is final. There is no judicial or parliamentary oversight.

Forty-five tribunal cases were filed with the UEC against winning candidates in the November election, 26 of which were filed by the Union Solidarity and Development Party, the former ruling party that lost heavily in the election, and eight by the NLD, which won by a landslide. Cases involved 14 Union Lower House seats, six Union Upper House seats and 25 seats from state and divisional parliaments, with the largest number coming from Shan and Kachin states. Allegations vary between intimidation, polling station staff misconduct, defamation and misuse of religion.

Only a minority of tribunal cases has been settled so far. As with tribunals after the 2010 election—governed by the same framework—individual cases have extended over many sessions since the process began in December. For a brief period, tribunal sessions were moved out to state and divisional capitals, to facilitate testimony from a substantial number of witnesses.

The cost of traveling repeatedly to Naypyidaw—including from remote areas of Kachin State—and hiring lawyers over a period of many months has been substantial for those pursuing or defending cases. Those filing cases also had also to pay a fee of 500,000 kyats (US$420) at the outset, which reportedly deterred some individuals from filing.

Earlier sessions of the cases pursued against Zahkung Ting Ying revealed a complex backstory to the feud between the militia leader and the NLD. According to witnesses questioned during tribunal sessions in the Kachin State capital Myitkyina, NLD members competing in the townships concerned were linked to a faction that broke away from Zahkung’s NDA-K militia, and later engaged in hostilities with the NDA-K with the help of the Kachin Independence Army.

Due to devastating rates of drug addiction among Kachin youth, Zahkung Ting Ying’s alleged involvement in opium production has earned him the enmity of members of Kachin civil society as well as Pat Jasan, an anti-drugs vigilante group in Kachin State backed by the Kachin Baptist Convention. In February, hundreds of local Kachin protested outside Zahkung’s house in Myitkyina as well as the offices of the Kachin State government, after an attack by armed opium farmers on Pat Jasan volunteers undertaking poppy-eradication in Waingmaw Township.