Myanmar at the HLP Crossroads: - Displacement Solutions

13Myanmar at the HLP CrossroadsThe Law denies access to independent judicial review and may undermine faith in the rule of law.Disputes under the Farmland Law are handled at the ward or village level by the same body that made theinitial determination (Chapter VIII, Section 22). Chapter VIII of the Law then sets up three levels of administrativeappeal, together with strict time limits, and decisions become “final” at the state or region level. All of thebodies at the various levels have been appointed by the Central Farmland Management Body and judicial appealis prohibited under Article XIII, Section 40, although access to the courts is available to resolve disputes involvingmatters of inheritance. Moreover, Chapter VII, Section 19 of the Law authorizes civil penalties, including fines andeviction, for failure to comply with obligations under the law and criminal penalties of up to two years imprisonmentunder Chapter XII for failure to comply with any order issued by a farm management body. These harsh civilpenalties and the criminalization of non-compliance with administrative orders are of dubious value.The vague rules with respect to farmers’ obligations, the multi-layered appeals process with each appellate levelappointed by the same central authority and the harsh penalties provided by the Law make compliance with theprocess quite complex and the consequences for non-compliance quite severe. This will inevitably make farmerswho have to deal with the administrative apparatus wary and intimidated. A simpler, more user-friendly and farmerprotectiveprocess would be far preferable. But even a simple administrative and dispute resolution process canbe intimidating to people who lack the education and experience to navigate through it and thus the Governmentshould institute measures like a barefoot paralegal land registration campaign to assist with initial registration andlegal aid to assist with disputes.For the Farmland Law to comply with even the minimum HLP standards arising from international norms, severalmajor amendments will be required. The Law needs to provide a stable, easily accessible, non-corrupt system ofland title and permission to use registration that has as its primary aim the conferral of enforceable, long-termtenure rights for those farming the land. Farmers need to have access to assistance to help them comply withthe land registration requirements, and to have proper representation in negotiations between them and Governmentand business bodies. The administrative bodies with which farmers are required to interact through the landregistration and land certificate process must be more representative, more independent and less associatedwith the personalities and practices of former Governments. Members of these bodies should receive training andcapacity-building to ensure that they apply regulations in a manner that is consistent with the full spectrum of theHLP rights held by farmers. Recourse to judicial review and legal aid assistance should also be made available.The Vacant, Fallow and Virgin Lands Management Law, which was also signed into law on 30 March 2012, vestsan enormous amount of discretionary authority in a Central Committee for the Management of Vacant, Fallowand Virgin Lands. The Central Committee, which is appointed by the President, can grant permission to usevacant land, set a tax on the land and security fees for its use, and supervise compliance with the law. Permissibleuses for the previously vacant land include agriculture, livestock, aquaculture, mining and “other purposesin line with the law.” Land use permission can also be granted to citizens, Government organizations, NGO’s, andjoint ventures under the Foreign Investment Law. With unbridled discretion given to a Presidentially appointedCommittee, no protections for small landholding farmers and no limits or standards to assure HLP rights, environmentprotection or sound land use planning, the Vacant, Fallow and Virgin Lands Management Law, like theFarmland Law, will do nothing to stem either land speculation or land grabbing.Like the Farmland Law and the Vacant, Fallow and Virgin Lands Management Law, the new EnvironmentalConservation Law, also adopted in March of 2012, vests full authority and an enormous amount of discretionin a Ministry and Committee under the control of the President’s office. And while the law creates a vehicle forcomprehensive environmental regulation with respect to physical impacts and cultural heritage, it is completelysilent on the impact of development on social and community life. The most troubling aspect of the Law, however,is that Chapter XIII, Section 36 vests absolute and limitless discretion in the Environmental Ministry, with theapproval of the Union Government, to ignore any of the terms of environmental regulation as follows: “TheMinistry may, with the approval of the Union Government, exempt or relieve any Government department, organizationor private business from complying with any provision contained in this Law for the interest of the Unionand its people.” This broad loophole in the legislation has the potential to completely undermine theeffectiveness of the Law.