Issue No. 5 | 4 June 2019

Up in Smoke: Myanmar farmers under attack with new land law

Farmers in parts of Ayeyarwady region have been displaced without due notice or adequate compensation from their farmland, countless hectares of which have been turned into commercial fish ponds. (Photo: Patrick Brown / Human Rights Watch)

At sunup, Myint Aung, 63, awoke to scribble a series of messages in red marker on loose sheets and a piece of plywood, and carrying all this and a jerrycan, walked out to the road, poured gasoline down his front, and set fire to himself. He then ran around the streets engulfed in flames. By the time the neighbors rushed him to the hospital, he could only mumble a few words to the nurse, insisting his self-immolation had been an act of protest against the army’s claims to the land his kin and village had worked for years.

It was not long before Myint Aung succumbed to his death, but his village continue to suffer the same injustices he had railed against. In December 2016, the military sued his niece Maw Maw Oo, 45, together with dozen other villagers, on charges of damage to property and trespassing. This has become a refrain in disputes over land in Myanmar, one bound to be all the more relentless with a newly amended land law.

In the state’s bid to maximize use of land for income generation, all unregistered tracts in the country have effectively been declared “vacant, fallow, and virgin” by March this year — just six months before farmers and landholders were told to secure official titles. The certainty of dispossession in Myanmar’s poorest quarters and even among many ethnic communities caught in armed conflict contrasts with the risk of takeover of land by corporations in cahoots with the still-powerful military.

It could not be more telling that one of the notes written on a piece of wood Myint Aung had lugged before he died said: “Give back our land that the army took.”

Fuel to the flames

Plenty of poverty endures in much of Myanmar, with 70% of its ethnically diverse population concentrated in rural areas where people practice subsistence farming. Land is central to daily affairs, governed by over 70 laws that technically cede ownership rights to the state while granting most farmers customary land tenure. The amended Vacant, Fallow, and Virgin (VFV) Land Management Law, however, reinforces an increasingly privatized system that exacerbates agrarian insecurity in the name of greater private investments.

The VFV Land Law uses the Farmland Law of 2012, which provides for the sale of lands on the market, as a plank in its aim to reallocate more than 20 million hectares, roughly a third of Myanmar’s total land area, to contractors and investors. Yet even before the amendments to said law, small farmers could no longer assert their rights to land without fear of reprisal from military commanders, corrupt officials, and cronies.

Indeed, after decades of military rule, the nation’s supposed transition to democracy with the landslide victory of the National League of Democracy (NLD) in the 2015 elections, heralded hope for a resolution to these longstanding land conflicts. The NLD, after all, appealed to the peasant majority with a vow in its manifesto to “strive to return illegally lost land” and make “payments of compensation and restitution.”

That the NLD-led government has proved a shocking failure in this regard reflects Myanmar’s democratic reversal. Aung San Suu Kyi, the de facto state leader and a Nobel peace prize winner, has failed to relax the military’s economic grip and instead rolled back two commissions set up by her predecessor to probe land seizures, mostly by either the army or ethnic militant forces. Thousands of cases from as far back as the 1980s remain unreviewed, which a new central reinvestigation committee has put on the back burner.

All this suggests that beleaguered villagers are nowhere near retrieving their confiscated plots. Below the township level, many cases appear more complicated than straight-up land grabs, some involving instead not only the military but also businesses who often lease lands they have bought even to the original land owners or to other tenants that, in turn, pay for and till their parcels in good faith.

The National Land Use Policy from the previous Thein Sein’s administration also did not carry over to Suu Kyi’s, despite its comprehensive plan to safeguard communal land rights and the right to return of ethnic nationalities, refugees, and internally displaced persons (IDPs). The amended VFV Land Law, by contrast, lacks any definition, and hence guarantee of recognition, of which lands may be classified as “customary.”

Yet the government refused to budge in the face of fierce opposition from land rights groups. September 2018 saw the passage of the amended law, and in the weeks ahead of the six-month deadline, based on a survey by the Mekong Region Land Governance Project, still 95% of the residents in villages about to be categorized as VFV had no inkling of the law, much less its new requirements.

Crash and burn

 That, at midnight of 12 March, hundreds of Burmese farmers had no idea their lands had just been seized by the state underscores not only government’s failure to hold a more inclusive dialogue. It also highlights how the land law is by design meant to take away lands from poor farmers who were at a disadvantage right at the outset. Not only did the six-month notice prove rushed, but many of those affected lack access to government offices and could not even speak in Burmese to argue their case.

This large-scale displacement from ancestral lands entails more than the dispossession of livelihoods of indigenous peoples. It also precludes any prospect of redress to victims of previous land grabs and to ethnic peoples whose struggle for self-determination and customary rights is key to ongoing peace negotiations between the government, the military, and the ethnic minorities engaged in an internal armed struggle since before the end of British rule in Myanmar.

Women farmers gather in protest of the large-scale land grabs in Mandalay in Central Myanmar, 12 July 2017. (Photo by Kway Zay Win / AFP)

Those who were able to register their lands in time need not worry about being fined MMK 500,000 (about US$ 328) for alleged encroachment on their own land or facing up to two years in prison. Yet they have also yielded their historical rights to territory and will suffer the consequences of eviction once their 30-year land use permit expires. For them it is only a matter of time, then, before they also look to relocate or find jobs other than farming. Either way, both possibilities diminish what little economic security farmers have.

The process of land registration imposes the burden of proof on farmers who, most of the time, only have tax receipts rather than title deeds to show for their claims. Smallholders asserting their customary rights have had to face criminal prosecution that gets stalled due to absence of legal protections for such rights and of ethnic-based courts the state would recognize enough to allow to adjudicate these cases.

Unsurprisingly, though curiously enough, a land development officer sued four residents in a village in Yephyu Township in Dawei, a southeastern city in Myanmar, for trespassing on VFV land in August 2018, when the new amendments had yet to be enforced. The villagers had lived there for over two decades, growing bananas, nuts, and other crops, but were rejected when they tried to register their plot of land.

Such was also the case where Myint Aung came from, in Ye Bu, a village in Shan State. Older generations had cleared the jungle for farmland, which was later divvied up among different ministries for conversion to industrial plantations. Although several avenues exist to resolve such land confiscation, chances of redress are slim at best when, as villagers complain, the very officials tasked to investigate these cases have conflicts of interest or simply embroil the former in bureaucratic processes which get dragged out.

At worst, in cases dating back to when the military junta ruled Myanmar, victims cannot retrieve their land at all. They can, in other instances, if they agree to cultivate the land and acknowledge the military as the lawful owners. They were disheartened even more when Suu Kyi began to foster ties with the top brass.

In 2017, for example, the current administration was shamefully mum about the well-documented persecution of the Muslim minority Rohingya in Rakhine State, where villages were pillaged and torched to give way to military bases as well as large-scale investments. This genocide has bred a refugee crisis that hamstrung the agrarian economy.

“Military-dominated state-owned economic enterprises in natural resource extraction are the regulators, revenue collectors, and commercial entities,” said UN Special Rapporteur in Myanmar Yanghee Lee in March this year. “They are permitted to retain vast profits that bypass the government budget with no record kept on how they are spent.”

The military maintains a stranglehold on ethnic minorities, where 82% of VFV lands are situated. Its tension with ethnic forces could spark enough conflict as it is, but the new land policy could jeopardize if not destabilize efforts at peace negotiation. Families in borderlands and conflict-ridden areas would find it all the harder to stay on in their ancestral lands. In Kachin and Shan States, more than 100,000 residents have in fact fled to 167 IDP camps since 2011.

“The land-related legal reform process, currently taking place in parliament, has actively ignored the opportunity to resolve the deep-rooted land conflicts across the country that could lay the foundations for lasting peace,” said a July 2018 report by the Karen National Union, a political organization whose liberationist armed wing operates in mountainous eastern Myanmar.

Peacebuilding in the country cannot be anchored on a policy as antithetical to the ethnic people’s federal democratic aspirations as the VFV land law, the group added. Sharing of benefits between the local and central government levels could only work if the state decentralizes management of land and resources.

Fire sale

Some argue that the VFV Land Law could have been used to curb corporate plunder of resources, abuses of concessions, or agribusiness expansion on unregistered lands, which may appear to big companies as up for grabs. The state, by dint of the law, could reclaim lands sold to private entities that are not being used productively.

Yet with the military still reigning supreme and the civilian government lacking political will, the land law has been used to facilitate land and resource grabs by investors and enterprises at the expense of local communities.

In the southern Tanintharyi region, the VFV Land Law is seen to frustrate attempts to address issues with palm oil plantations, which have over the years intruded on indigenous land and damaged local ecology. The terms of the concession for oil palm granted to Singaporean and South Korean companies in Bokpyin township, for instance, indicated the concession area as a part of the jungle yet to be cleared and made no mention of the indigenous Karen people living therein.

Meanwhile, in one township in Dawei, a planned highway construction in what will be a special economic zone (SEZ) is feared to displace locals whose only claim to land are their traditional and customary rights. They could end up in settlements along the highway, if not completely forced out of their original villages.

This results from a land registration scheme that relies on outdated maps that leave out customary lands. Some operators also go so far as to exploit lands previously deserted amid armed conflict or protected forest reserves. Just recently, four Chinese nationals were found to be working on tissue culture banana plantations in northern Myanmar’s Kachin state, risking deforestation and destruction of farmland.

Indeed, the links between the military and the private sector could not be more blatant in agro-industrial programs, such as those led by one of the world’s largest conglomerates, the Charoen Pokphand Group of Thailand. The company tried to broker a deal with the villagers and, when that failed, had the army file dozens of lawsuits against farmers who had returned to work the land where they had been driven away.

This dispute has carried on for a long time now, one that the VFV Land Law failed to settle in favor of the farmers. Instead, beyond their dodgy implementation, the amendments only serve to provide a legal framework to justify massive land grabs with promises of greater revenue generation.

One of the locals, Myint Aung, has in fact literally torched himself alive in rage and resistance, as government’s preference for large-scale investments and cash inflow over public good and people’s rights systematically turns Myanmar’s farmers and indigenous communities into criminal trespassers on their own lands.

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