For the last two days I have been at the Workshop on the National Land Use Policy Formulation held at the Myanmar International Convention Centre in Nay Pyi Taw. Under discussion was the 6th, and likely final, draft of the National Land Use Policy. (Available here: http://www.fdmoecaf.gov.mm/documents)
While the government should be commended for holding open consultation and taking on board many of the comments from civil society, the consultation’s location in Nay Pyi Taw is prohibitive to most civil society organizations (CSOs). In fact, if it was not for the diligent organization of buses and accommodation by Land Core Group, headed by U Shwe Thein and facilitated by Glen Hunt, the consultation would have been more like a intergovernmental discussion.
The opening morning consisted of speeches by U Kyaw Kyaw Lwin, the Deputy Director General (Policy/Planning) of the Forest Department and U Aye Maung Sein a National Consultant, who reminded us of the draft’s content and outlined the process of consultation undertaken so far. Vice President U Nyan Htun, Chairman of National Land Resource Management Central Committee, also delivered a speech in which he explained how the government had ‘laid down a bottom up process for all sectors.’ But the really interesting discussion came during the small working groups. The participants signed up for the following 5 different working groups:
- Objectives and Basic Principles (Part I)
- Monitoring and Evaluation (Part XI)
- Research and Development (Part XII)
- Land Use Administration (Part II)
- Assessment and Collection of Land Tax, Land Transfer Fee and Stamp Duties (Part VII)
- Harmonization of Laws and Enacting New Law (Part X)
- Planning and Changing Land Use (Part III)
- Grants and Leases of Land at the Disposal of Government (Part IV)
- Procedures Related to Land Acquisition, Relocation, Compensation, Rehabilitation and Restitution (Part V)
- Land Dispute Resolution and Appeal (Part VI)
- Land Use Rights of Ethnic Nationalities (Part VIII)
- Equal Rights of Men and Women (Part IX)
- Dispute resolution
- Strengthening tenure security of vulnerable groups
- Poverty reduction and food security
- Peace process and land resources management
- Disaster Risk Reduction in the climate change context
- Responsible investment and land resources
- Integration of international best practices
- Accountability, good governance and rule of law
U Shwe Thein, a veteran of these types of consultancies and one of its key coordinators for civil society explained that he was impressed by the genuine open discussion. He noted that the different sides were closer together than before and that the government seemed to listen to most of what civil society put forward. This consultation is a model of good practice in a country like Myanmar, where five years ago this type of engagement would be unthinkable. Although there are many problems with the document and the consolation, that it exists and has happened is positive.
There were lively and heated debates in all five groups. During the group presentations summarising the discussions, many in civil society noted that key issues had not yet been addressed. It was clear that civil society’s concern over ‘market-based solutions’ and ‘contract farming’ will not be heeded and will be in the final draft in some form. There was some confusion noted over translations of terms, including the word ‘treaty.’ Many CSOs representing ethnic groups worried that customary land rights and dispute resolution practices were not adequately addressed. It should be noted that both sides seemed to agree that the principle of Free Prior and Informed Consent (FPIC) would be applied to the Land Use Policy. I am curious to see how this will be implemented in practice.
There remain uncertainties over how the policy will affect the drafting of a new land law. Part V on Procedures related to Land Acquisition, Relocation, Compensation, Rehabilitation and Restitution contains general language that was not clarified at the Workshop. Concerning the framing of a new land law, article 37 reads as follows:
- Relevant laws, rules and procedures shall be amended, repealed and newly enacted, if necessary to conform to the objectives, basic principles, practices and instructions in this policy.
Ideally, the NLUP will be an umbrella policy under which all laws, rules and procedures conform to the NLUP. Myanmar has 34 land related laws that will need to be reviewed, amended and possibly repealed to come under the umbrella. This will be a long and costly process of legislative reform that will require restructuring a national network of committees and institutions. There was no discussion of a timeline for the implementation of Article 37 or about its costs. It was made clear at the workshop that the NLUP will frame the drafting of a new Land Law. The NLUP does not articulate the process of drafting or specify exactly how the NLUP will inform this process. Article 38 explains that amending or newly enacting laws, rules and procedures will be in conformity with National Land Law:
- When amending or newly enacting relevant laws, rules and procedures, they shall be inconformity with National Land Law and based on the following:
(a) Public participation management process and fair, equitable and systematic procedures shall be defined; (b) Shall define measures to prevent and control corruption, and misuse of power, by assigning qualified persons capable of carrying out matters relating to land use in a fair and correct manner in accordance with law; (c) Shall describe effective, consistent and fair valuation system when providing compensation and relocation for people affected by land acquisitions; (d) Shall conduct necessary rehabilitation, even though compensation and relocation has already been carried under sub-paragraph (c); (e) Shall define the time period for conducting matters defined in sub- paragraph (c) and (d);(f) If the affected person wants to invest in the project, it shall be allowed.
NLUP Part IX on Harmonization of Laws and Enactment of New Law gives plenty of guidance on the process and on public consultation:
79. (a) For the harmonization of all existing land laws in Myanmar, a new National Land Law shall be drafted and enacted based on this land use policy; (b)In drafting the national land law, the participatory consultation process contained in this land use policy as the procedural method; (c) In drafting the national land law, consultation process and major processes shall be carried out as follows: (i) informing the purpose and process of drafting the national land law to the public, relevant government departments and organizations and the stakeholders by suitable manners; (ii) carrying out comprehensively to scrutinize and give advice by the relevant stakeholders including the media and the public after drafting the draft national land law on which comments would be sought by studying the experiences of international countries and other regional countries and based on the salient situations of Myanmar, problems encountered, interests of the users of land and other natural resources in the country; (iii) holding the national level workshop relating to the draft land law; (iv) submission to the Pyidaungsu Hluttaw after finalizing the draft national land law.
While these principles are welcomed commitments on the part of the government many CSOs asked for clearer definitions of terms. The general response from the government was that more detail was to come in the new Land Laws. CSOs expressed concern that new law was being drafted simultaneously, with much less regard for civil society concerns. For this reason, they advocated for as much detail as possible to be included in the policy while the government preferred a more general, briefer document arguing that the details will be included in the law.
In the area of dispute resolution, there is further confusion. Will the line ministries that implement the 34 laws use the new NLUP to decide land disputes brought under their purview? The NLUP will create a National Land Use Council that will then, in turn, create work committees as well as Region or State Land Use Committees. Region and State Governments will also create Self-Administered Zone, District and Township, Village or Ward Land Use Committees. How will these new Committees interact with the myriad existing Committees overseeing various land laws?
It certainly a step forward for Myanmar when the government engages in a long consultation process and amends numerous drafts to reflect many of civil society’s concerns. If nothing else, the NLUP will serve as an important guideline for Civil Society to use in its advocacy in Myanmar. It remains to be seen how the final draft will look and how its provisions will frame the drafting of much needed, consolidated land law. One thing is certain, the irony of holding a land policy consultation in Nay Pyi Taw – itself not exactly a model of participatory, sustainable land use – was not lost on the participants.