Thu 7 Jun 2012
Filed under: Business / Trade,Reports
The convergence of military, business and government interests aimed at displacing farmers and residents from their homes poses grave dangers for Burma, the Asian Legal Resource Centre (ALRC) said in a new report.The ALRC, a non-governmental organization with general consultative status, has submitted a report to the Asian Human Rights Council, outlining the problems involved in land confiscation.
The new Farmland Law 2012 has not corrected the problem and should be revised, said the ALRC.
“Almost daily, news media carry reports of people being forced out of their houses or losing agricultural land to state-backed projects, sometimes being offered paltry compensation, sometimes nothing,” it said.
People who refuse to move when forced out by land grabbers risk prosecution and jail. In one case, the Naypyitaw municipal council prosecuted 21 householders for refusing to vacate their village when ordered in 2011: in March 2012 a court sentenced six of the group to three months in jail each, and in April it sentenced another three to jail terms. According to a lawyer working on the cases, the municipality did not bother to produce evidence that it had obtained the requisite approval to seize the land.
“Two fundamental reasons exist for the increase in land grabbing in Myanmar,” said the ALRC. “First, as political, economic and social conditions change rapidly, the country is touted as the last emerging ‘and of opportunity’ for global business with interests in Southeast Asia. Serving and former military officers who are still in government are together with their business partners lining up to do deals that will make them rich. Military-owned or connected companies and businessmen – which dominate the country’s economy – are hurrying to force ordinary citizens off real estate that they can use to attract foreign investors.
“In some cases, such as a recent grab of 815 acres for construction of an industrial zone in Mingalardon, on the outskirts of Yangon, members of Parliament for the military-established Union Solidarity and Development Party themselves wholly or partly own the companies involved,” it said.
In other cases, it said the military’s Union of Myanmar Economic Holding Limited – which is staffed by former army officers – or its subsidiaries that are responsible for the theft of land. And in practically all cases, “administrative officials have continued to behave as they have for decades, treating villagers with contempt, using tried and tested tactics of threats and intimidation, to force people out against their will,” it said.
Second, it said: “As land grabbing accelerates, the legal framework has not only failed to keep pace but has in fact gone backwards. Myanmar’s justice system has for decades been integrated into authoritarian structures and mindsets. The system is in massive disrepair: decrepit, incompetent and virtually powerless against vested interests in other parts of the state or in private enterprise. Its institutions are neither inclined to intervene, nor are capable of intervening to protect the rights of farmers, householders and others facing the encroachment of military-owned companies and their partners.”
That the justice system as it exists now has neither the means nor the inclination to act in the interests of the public against land grabbers is already a cause for concern, said the report. On top of this concern, in March the national legislature passed a new law that places legal authority over decision-making on land issues in the hands of the executive.
“The Farmland Law 2012, while supposedly being forward-looking in fact resembles the authoritarian socialist-era laws of old,” said the ALRC. “The basic rationale of the law is found in article 37(a) of the 2008 Constitution of Myanmar, that the state is the ultimate owner of all land and all natural resources above and below the ground: today, as it was in the past. Accordingly, the law in its section 29 enables the state to take over any land on the pretext of embarking upon a project in ‘the national interest.’ Under the law, authorization for the takeover of land, and resolution of any disputes over land usage, lies not with the judiciary but with a new central council, comprising of the agriculture and irrigation minister and deputy minister, the director general of the land revenue and registration department, and unspecified officials from other ‘relevant government departments’ (section 15).
“Similar councils of unspecified composition will operate at all other levels of government (section 16). Although the law gives no details of who will sit on these bodies, presumably no independent experts, no representatives of farmers’ interests or other outside voices will be invited to participate. The law envisages a system of decision-making that from top to bottom is monopolized by government officials.
“Furthermore, under the law’s section 4, once the new councils are operational all persons with usage rights to farmland will be obligated to apply for authorization to continue to work it. In other words, even people with tenure over land today may lose it tomorrow through a process of review and scrutiny of existing holdings that will enable the state not only to identify those areas of land over which it has uncontested possession, but also those areas of land over which farmers’ claims are tenuous, or might be contested through the fabrication of alternative documentary claims and the use of various illegal coercive methods,” said the report.
The ALRC said far from reducing the prospects of land grabbing, the Farmland Law opens the door to confiscation of agricultural land on any pretext associated with a state project or the “national interest.”
It also noted that the law came into effect without any evidence of public consultation or debate, much as laws have come into effect over the last few decades.
The ALRC called on the government to suspend implementation of the Farmland Law and to begin a meaningful process of engaging with members of the public at all levels and in all parts of the country, with landholders, land users and legal and technical experts, among others, to get the widest and most comprehensive range of views on how genuinely to protect public interests.
The ALRC also called on the government to ensure that whatever form the revised law takes, cases decided under it are subject to judicial review. “Only by working to make the judiciary an effective and credible institution, by bringing the judiciary back into the political and legal system in a meaningful way, can the government expect to come to terms with these deficiencies,” it said.
It called on the Asia Human Rights Council to urge the Burmese government to review the Farmland Law and to call for reforms to make the judiciary a working institution again.