Myanmar at the HLP Crossroads: - Displacement Solutions

Myanmar at the HLP Crossroads 38The State Peace and Development Council: 1997-2011On 15 November, 1997 the SLORC was abolished and reconstituted as the State Peace and DevelopmentCouncil (SPDC). Most but not all members of the abolished SLORC were in the SPDC. In 1998, the SPDCintroduced the Protection and Preservation of Cultural Heritage Regions Law which enabled the Ministry ofCulture, with the approval of the government, to designate and demarcate areas as ancient monumental zones.The Ministry may also dismantle a building (which is not an ancient monument) and which obstructs the view ofan ancient monument. The Ministry can also prohibit ploughing and cultivation with the boundary of an ancientmonument or site and prohibit building within the same areas.The Highways Law (2000) provides for the duties and powers of the Ministry of Construction, including, scrutinizingand permitting construction across highways, as well as construction and building within the boundary ofhighways. Under the Act it is an offence to build on or within the boundary of a highway. The City of MandalayDevelopment Law (2002) created a “City of Mandalay Development Committee”. The responsibilities of theCommittee include: constructing, maintaining and demolishing buildings and demolishing and resettlement ofsquatter houses, squatter buildings and squatter wards. Finally, Order No. 3 (2007) confers certain powers onthe Nay Pwi Taw Development Committee similar to those exercised by the City of Yangon and City of MandalayDevelopment Committees.Beyond these measures, both the SLORC and SPDC used the HLP sectors as a means of simultaneouslyentrenching political power and subjugating the HLP domain to a household level tool of social control of thepopulation. In accordance with the law, people’s homes are universally recorded and registered. Households onland parcels, delineated as individual property, (eing/myay paing saing mhu) are registered by local authoritiesand village headmen. This recording and registration process enumerates the head of household, location andtype of house and family characteristics. Local authorities at various community levels are obligated to know thewhereabouts and movements of the local population, which has the net effect of constant monitoring, surveillanceand control of dwellers by the local authorities. This degree of social control, the absence of privacy rights and anoverall environment of housing insecurity was worsened further during the past two decades as a result of massiveforced eviction programmes pursued by both SLORC and SPDC.In January 1993 a National Convention was formed for the purpose of drafting the Constitution. Of the 700initial delegates to the National Convention (on 28 November 1995, the NLD withdrew its 86 representatives)nearly 600 were handpicked by the SPDC. The establishment and the manner of functioning of the NationalConvention raise serious questions of legality under both Burmese domestic law and international human rightslaw. Bearing those criticisms in mind, after 18 years a new Constitution was adopted on 29 May 2008. TheConstitution came into force after the scheduled 2010 elections. The Constitution follows the practice of theRevolutionary Council and SLORC in providing that “existing laws shall remain in operation in so far as they arenot contrary to this Constitution until and unless they are repealed or amended”. The Constitution reconfirms theposition of the State as the primary land owner in the country: “the Union is the ultimate owner of all lands and allnatural resources above and below the ground, above and beneath the water and in the atmosphere in the Union”.As noted below, in terms of individual HLP rights, the new Constitution enshrines rights for citizens including: theright of private property, right of inheritance, right of private initiative and patent in accord with the law; the right ofcitizens to settle and reside in any place within the Republic of the Union of Myanmar according to law; the rightto ownership, use of property and the right to private invention and patent in the conducting of business if it is notcontrary to the provisions of this Constitution and the existing laws; and the guarantee that the Union will protectaccording to law movable and immovable properties of every citizen that are lawfully acquired.This colourful patchwork of laws, developed under widely different systems of governance, has left Myanmar witha complex, almost impenetrable, legal framework for housing, land and property regulation. Indeed, it is oftenmore confusing than a source of the clarity, and overall constitutes a serious obstacle to building the rule of lawand greater transparency and fairness. Lax enforcement of long-standing land rights registration requirementsand other formalities required by law has left the system of land registration and mapping in severe disarray andthe Myanmar people extremely vulnerable to land grabbing and other violations of HLP rights in this volatile time.Moreover, virtually all decision-making is left to the unbridled discretion of appointees of the central Governmentwith little or no recourse to judicial review.