Property, Citizenship, and Invisible Dispossession in Myanmar’s Urban Frontier

ABSTRACT

Myanmar’s systematic dispossession of religious and ethnic minorities is well-documented as a tool for counterinsurgency through territorialisation. However, the specific contours of the relationship between minorities, territorialisation, and urban dispossession remain underexplored. The article argues that legislative changes linking identity, property, and belonging led to widescale invisible dispossession of minorities, through the mechanisms of law, citizenship and bureaucracy. Such dispossession gave birth to multiple urban frontiers – temporal spaces that break down existing property relations and create new ones through territorialisation. This article explores one such moment in Myanmar’s largest city and former capital, Yangon, through the lens of Islamic pious endowments, or waqf. By positioning Yangon’s post-1988 landscape as an urban frontier, the article shows how legislative changes serve to actively create frontiers in urban centres through legal dispossession and the transformation of property relations. The article develops the concept of the urban frontier as inextricably tied to territorialisation and dispossession, positing that a frontier, as a spatialized moment in time, can exist at geographical centres as well as peripheries.

Acknowledgment

Thanks to all of the people in Yangon who helped me to understand, challenged my assumptions, and pushed me to ask the right questions and dig further. I hope I have done your time and memories justice with this first piece from this project. Thanks to the Special Issue editors and the anonymous reviewers for their generous comments and suggestions and the organisers and participants of the Urban Frontiers Workshop in Oxford in April 2019; Stockholm University Forum for Asian Studies Workshop on Land, Law and Nationalism in Myanmar in April 2019; and the Association for Asian Studies Emerging Fields Workshop on Law, Society and Justice at the University of Michigan in May 2019. Lastly, but importantly, the Burma Human Rights Network (BHRN) and the London Burma Studies Group for their feedback, guidance, time, and enthusiasm. Thanks especially to Eva Pils, Christian Lund, Patrick Meehan, Courtney Wittekind, Laur Kiik, Elliott Prasse-Freeman, and Johnathan Napier for their comments and encouragement.

Notes

1. ‘Yangon’ has undergone several name changes in its history (Dagon, Rangon, Ukkalapa, Rangoon, Yangon). Most recently, the military junta changed the name of the city from the colonial ‘Rangoon’ to the more appropriately transliterated ‘Yangon’ in 1989. I refer to the city as Rangoon during the period in which it was called Rangoon and as Yangon following 1989. There are similar issues with the terms ‘Burma’ and ‘Myanmar’. While the Burmese language name of the state remained the same, the English name was changed from Burma to Myanmar by the military junta in 1989. Due to debates over the legitimacy of the military government and the junta’s right to change the name, many exile groups and pro-democracy activists and foreign governments continue to call the country Burma, while the United Nations recognises Myanmar. I use Burma until 1989 and Myanmar afterwards.

2. Sarma and Sidaway (2019, 8) provide a great description of the invocation of ‘frontier’ in marketing Yangon. See: Imamura, M. 2014 for a description of Myanmar’s frontiers in various media outlets.

3. While I chose the British conquest of Rangoon as a starting point to discuss the intersection of urban frontiers and post-colonial property, citizenship, and minority rights, a frontier-territorialisation lens may be helpful for illuminating pre-colonial dynamics as well. After the First Anglo-Burmese War in 1826, ‘Rangon’, the town comprised primarily of a stockade settlement along the riverbank, was insecure, prompting the Burmese monarch, King Tharrawaddy, to move his government buildings and all Burmese residents to higher land. Tharrawaddy founded the young town of ‘Ukkalapa’ about a mile north of the river and left the European and other non-Burmese residents in the low-lying stockade. Prior to the final conquest of Pegu by the Burmese in 1757, ‘Rangon’ was known as ‘Dagon’, and the Shwedagon (‘Golden Dagon’) Pagoda was raised nearly to its current height by the Mon Queen Shinsawpu.

4. While the time period analysed in this article ends prior to Myanmar’s current ‘transition’, I am by no means suggesting that the frontier dynamics of Yangon in the 2010s should be understood as outside of this cycle. In fact, in the years before and after the 2010 elections, a privatisation frontier was active in Yangon as the military government sold off hundreds of government properties ranging from cinemas and cooperative shops to large tracts of urban government land in a ‘fire sale’ to cronies and other government insiders. 317 government properties in Yangon were sold in sealed auctions in the 2009–2010 fiscal year alone (Rhoads 2019; Htar Htar Khin 2010). With large plots of property with clear title readily available when the country opened up to increased foreign investment in 2012, regime-linked secret auction winners were prime candidates for joint ventures with foreign firms looking to invest in Myanmar, particularly in real estate and tourism development. For more on dispossession and urban frontiers in post-2010 Myanmar, see: Rhoads and Wittekind (2018); Sarma and Sidaway (2019).

5. While there were large-scale forced evictions occurring in the city during this time (see: Rhoads 2018; Seekins 2011), the case study presented in this paper is on dispossessions effected through legislation, which are different in practice, law, and effect from the 1989–1990 forced evictions of squatter populations across Myanmar.

6. See explanations of this in: Crouch (2014a) and (Crouch 2014b), Cheesman (2011, 2015).

7. The only exception is Section 45 of the 1982 Citizenship Act which allows for naturalisation of spouses of Burmese citizens holding Foreign Registration Certificates (FRCs) prior to the enactment of the law if they have resided in Burma continuously for 3 years; are of sound mind and good character; are over 18 years of age, and are the only spouse (although at the time Burmese law permitted polygamy). The law does not allow for naturalisation of spouses holding FRCs obtained after the enactment of the law. This section is now largely irrelevant due to the ages of those eligible.

8. To protect the identities of informants and in order not to draw further attention to contemporary Muslim neighbourhoods and properties, I have chosen not to include maps of transect walks of downtown Yangon here. I used transect walks of neighbourhoods to identify the years buildings were built and the contractors or developers who built them, as well as previous waqf properties through the built markers still visible on many downtown buildings. These built environment observations were triangulated with maps, interviews, and archival materials.

9. Rangoon was administratively part of India since the conquest and annexation in 1852, and British Burma officially became a province of British India ten years later in 1862. However, ‘Indian’ was also a marker for difference – in customs, religion, language, dress, etc. as well as a catch-all for a wide swathe of people. ‘Indian’ encompassed an elite upper class of propertied merchants; government clerks and police officers enmeshed in colonial ‘law and order’ and bureaucracy; much of the workers in the transport sector (boats, railroads, etc), public works, and sanitation; and a frequently disparaged low-income, mobile ‘mass’ of coolies and migrant labourers in the country’s rice mills, dockyards, agricultural sector, and other industries (Amrith 2011, 2013; Jaiswal 2014; Mazumder 2013; Osada 2016; Siok-Hwa 1965, 134).

10. This is not an exact year, but the colonial government made a census every decade and the 1901 census is the first that marks Hindus and Muslims as over 50 per cent of the population of Rangoon.

11. Egreteau (2014, 142–143) credits the Indo-Burmese Immigration Agreement of 1940, negotiated following Burma’s political separation from India in 1937, with a wave of wealthy emigrants from Burma to India.

12. While true numbers remain unknown, an estimated 450,000 evacuees travelled by foot from Myanmar to India in 1942. An unknown number died along the way, somewhere between 10,000 and 100,000 (Egreteau 2014, 143–144). Some evacuees returned to Burma following the war, but by the 1953 census, Indians made up 19 per cent of Rangoon’s population, down from 56 per cent in 1911 (Union of Burma, 1953; Pearn 1939, 286).

13. Demonetization of Kyat 100 and Kyat 50 currency notes occurred in May 1964. Brown (2013: 155) notes that ‘The primary target of the 1964 demonetization was, in the Revolutionary Council’s own words, the “indigenous and foreign capitalists who have for many years unfairly accumulated the people’s money with which they now oppose the Burmese Way to Socialism’. In 1987, another major demonetisation occurred. Section 36(e) of the 2008 Myanmar Constitution states that the Union government shall ‘not demonetize the currency currently in circulation.’

14. In 1964 associations were banned except for those engaged in solely religious activity under The Protection of National Solidarity Law (Law No. 4 of 1964).

15. Many of those of Indian ancestry who could not afford to leave were supported in funded ‘repatriation’ efforts by the Indian state from the mid-1960s into the late 1980s (Egreteau 2014). See also a description of the repatriation efforts in Beyer (2016, 146–147). At no point was an expulsion order issued. While numbers are unclear, Egreteau (2014) notes that only about one-third of the Indian population left during the Ne Win period, with two-thirds remaining in Burma.

16. See: Transfer of Immovable Property (Restriction Act), 1947; Transfer of Immovable Property (Restriction) Act, 1987.

17. This was also seen as a cause of Muslim property investment in Singapore (Brown 2008, 383). A large percentage of Hindu residents in Burma were regarded as cyclical migrant labourers (Amrith 2011, 239), staying in Burma for a few years at a time, while Muslims were more likely to settle permanently, buy property, and have families. Hindus who were long settled in Burma often became landlords as well.

18. This is not to say that all Muslims in Rangoon were Indian. Nor that all or even most Muslims emigrated. There are a multiplicity of Muslim identities in Myanmar and this article should not be seen as homogenising Myanmar Muslim identities. It primarily discusses Yangon Muslims with ancestral ties to the Indian subcontinent, and those who are perceived as having such ties (though they may not actually have such ties or may not consider themselves to have ties to the subcontinent). For more on Muslim identities in Myanmar see: Yegar (1972); Nyi Nyi Kyaw (2015); Crouch (2016); Beyer (2016).

19. Burmese Indian Muslim homeowner 2017.

20. General Ne Win nationalised property following his 1962 coup, but as the nationalisations in theory only affected commercial properties, a considerable proportion of properties were not confiscated.

21. One major exception to this are the Burmese freeholders in Dagon and Mingalar Taung Nyunt townships.

22. Even the American Baptist Mission did this, transferring their property to the Burma Baptist Church to avoid nationalization (Topping 1963).

23. In Indian legislation and practice waqf was often written as wakf and pluralized as wakfs. I have followed the Arabic transliteration in the text, but some legislation uses wakf.

24. Burma, like other former British colonies, used personal law governing inheritance, marriage, succession, etc. that differs based on the religious affiliation of the parties. As such, in family law cases, Islamic law continues to be recognised.

25. Awqaf is the plural of waqf.

26. For a legal explanation see: Daw Ein and others v. Daw Chan Tha and Others (1940) RLR 139.

27. Interview, waqf trustee, Yangon, 2018.

28. Shares of inheritance are prescribed in the Qur’an, depending on whether or not the deceased has surviving parents or spouses, and if there are sons or daughters. In certain cases, Qur’anic heirs may also be grandchildren or siblings, and the exact prescription of shares and heirs depends on the family of the deceased at the time of death, and the madhhab (school of jurisprudence) of the deceased.

29. In Myanmar this was often referred to by informants as ‘family’ waqf and ‘lilla’ waqf or charitable waqf (See also: Ma Bi & Ors. v. Ko Ba Yin & others (1962 BLR (H.C.) 80)). Kozlowski (1985) argued that the division between ‘private’ and ‘public’ endowments was something devised through the British Indian courts, as the courts’ interpretation of charity did not allow for beneficiaries to be members of the founder’s family. In practice, however, most waqf deeds were blended, with properties used for both family and charitable beneficiaries (Kozlowski 1985, 60). An example of a blended waqf in Rangoon is found in D.I. Attia and another v. M.I. Madha and others (1936) ILR 14 (Rangoon) 575. In this case, the waqf is used for: supporting a school; maintaining a water works in a village in India; maintaining a public dispensary in the same village; support of poor relatives; support of other poor; support of any Muslim organization in need of funds and, setting aside one quarter of earnings from the waqf annually as a ‘reserve fund’ (1936, 578). See also: Hooker (1984: 67–8); Ma Bi & Ors. V. Ko Ba Yin & Ors. [1962] Burma Law Reps. 80.

30. In Tanintharyi division, Muslim communities do not have private awqaf. They follow the Shafi’i school and primarily use waqf for cemeteries, mosques, orphanages and madrasas or properties with other religious or communal purposes. Thus, while waqf as an institution is found across Myanmar wherever there are Muslim communities, not all Muslims in Myanmar follow the scheme/non-scheme waqf system, particularly if they are not Hanafi.

31. Interview, Muslim lawyer, Yangon 2015.

32. A case reported in 1972 described that many private properties had been made into trusts managed by trustees and that the properties should be transferred into the trustees’ names. If it is government land that is managed by a trustee, a grant in their name should be created. U Htwe/A.E. Madha and 5 others v. E.N. Sultan (1972) BLR (C.C.) 32. While waqf are often found on freehold land due to the particular historical development of landholdings in Rangoon (Maxim 1992; Pearn 1939; Rhoads 2018), in some parts of Rangoon and outside of Rangoon, they were also created on grant land, which is ostensibly government owned. See for example: H. Talukder and two others v. The Special Collector, Akyab (1961) BLR (H.C.) 377.

33. Leigh (2014) gives an example of the destruction of the raw data from the 1941 census by Japanese bombs. Records lost during the war had to be ‘reconstructed’ in the courts through copies and affidavits. See a brief description in: Abdul Majid and fifteen others v. M, Kundu (1951) BLR (H.C.) 139. The case suggests that if the property was not contested, transferred, mortgaged, or involved in a court dispute there would be no need to reconstruct the documents related to the property, meaning many likely remained without documents.

34. Daw Ein and others v. Daw Chan Tha and others (1940) Rangoon Law Reports 136; Ma E Khin and others v. Maung Sein and others (1924) ILR 2 Ran. 495. However, if a wakfnama (waqf deed) is made in writing, it is required to be registered in accordance with the Registration Act as an instrument conferring interest in immoveable property.

35. Interview, heritage specialist, Yangon 2014.

36. This also happened during the Second World War, as detailed in a 1950 case concerning the Mulla Hashim Family Endowment Waqf in Rangoon. A non-beneficiary, non-trustee applied for ownership papers for one of the waqf properties in the charge of the Official Receiver of Rangoon, claimed to have renovated it, and then requested payment for the renovations. He was found to have no lawful interest in the property and the case was dismissed. The Official Receiver, Rangoon v. M.M. Mulla, (1950) BLR (H.C.) 320.

37. One interviewee in Yangon noted how government officials have begun referring to trustees as ‘trust lu-myo.’ ‘Lu-myo’ is literally a type of person, usually referring to race or ethnicity.

38. In 1982, the Union Citizenship Law and the Union Citizenship (Election) Law of 1948 were repealed and replaced with a new law. While there is not space in this paper to go into detail about the Act, there are some elements of the Act that should be noted. Under the 1982 Citizenship Law full citizenship was reserved solely for taingyintha (‘national races’) or ethnic groups whose ancestors made their home in the area now known as Burma prior to British colonialism (which was set at 1823, the year prior to the First Anglo-Burmese War). Following the 1982 Citizenship Law, a list of 135 nationalities was used in the 1983 Census (Cheesman 2017, 8; Ferguson 2015, 15). The 135 number began to be popularized by military officers in 1990 following the 1988 coup that brought Myanmar’s military junta, the State Law and Order Restoration Council (SLORC) to power (Cheesman 2017, 8). Ethnic groups not found on this list were not considered to be full citizens of the country by birth (unless their parents and grandparents were already citizens), and instead were categorized as associate citizens, naturalized citizens, or foreigners. While the list’s origin is murky (Ferguson 2015; Taylor 2015; Cheesman 2017, 8), it continues to be in use today, and is frequently cited as a means of revoking Rohingya claims for recognition as a ‘national race’ (UNHCHR 2018). For the purposes of this paper, it is important to note that several groups of Indian and Chinese origin that include significant Muslim populations were not included on the list, including: Panthays, Burmese Indians, Anglo-Burmese, Pakistanis, Bengalis, Malays, and Rohingyas (Ferguson 2015, 16).

39. This is not to suggest that absentee landlordism only became an issue after widespread emigration of the South Asian community. On the contrary, the practice of ownership of land and property in Rangoon by absentee landlords managed via power of attorney through their agents in Rangoon dates back at least to the end of the 19^th century, if not well before. See: Ismail Mussajee Mookerdum v. Hafiz Boo (Lower Burma) [1906] UKPC 16 (21 March 1906).

40. From 1962–1992 the Ministries of Home Affairs and Religious Affairs (MoHRA) were merged, as the Ministry of Home and Religious Affairs. In 1992 they were separated, with registration remaining under the Ministry of Home Affairs (MoHA).

41. Interviews: Muslim developer and property owner, Yangon, 2016; heritage lawyer, Yangon, 2014, 2015, 2016; Muslim lawyer, 2015.

42. Prior to 1982, Union Citizenship Certificates were issued under the 1948 Citizenship Act to those who claimed Burmese citizenship based on residency and/or birth rather than ethnic identity.

43. Those who ‘elected’ for Burmese citizenship under the 1948 Citizenship Election Act had until the end of April 1950 to apply. While a 1952 amendment to the 1947 Transfer of Immoveable Property (Restriction) Act made sales to foreigners void only after declared void by the President following conviction under the Act, transfers following promulgation of the act and prior to the amendment were void ab initio. In Ko Aung v. Abdul Latiff (1958) BLR (H.C.) 216, the court held that a sale to a foreigner who has applied for citizenship but has not yet received a Union Citizenship Certificate is void under the 1947 Transfer of Immoveable Property (Restriction) Act prior to 1952. The 1952 amendment left a gap in processing transfers involving foreigners (including gifts), so the 1956 Transfer of Immoveable Property (Restriction) Rules were issued and a Collector was appointed in each district to flag suspected cases and submit them for prosecution.

44. Literally “understanding” (noun), nalehmu refers to an abstract idea of understanding and can be used to refer to a range of informal relationships based on mutual understanding from corruption to sharing space in an apartment or not bothering your neighbour’s religious practice. In property transactions, a nalehmu arrangement may include trappings of a formal sale like a contract, exchange of money, and involvement of property brokers or lawyers, but without registration of the deed of sale and payment of stamp duty, the transfer remains legally incomplete.

45. YCDC is the name of the municipality of Yangon. It is the body responsible for municipal services, taxes, and licenses, amongst other tasks.

46. Heritage lawyer, Yangon, 2014, 2015, 2016; Muslim developer 2016.

47. Formal property transfers likely ceased due to lack of documentation necessary to register sales and inability to pay stamp duties necessary to formalize property transfers. See: Scherer (2015).

48. National newspapers, beginning in 1987 and peaking in the early 1990s, are full of comments and commentary on shoddy private contractors and poorly built apartments (Working People's Daily 1988a; 1992). One cartoon found in the state-run newspaper reads: ‘“Father, you return from Yangon. What is in season in Yangon?” Father’s reply: “Buildings constructed by contractors are in season in Yangon”’ (Working People’s Daily 1992).

49. The DHSHD was the successor of the colonial era Rangoon Development Trust. Functions of the Trust were assumed by the Housing Board, then the Housing Corporation and later the Housing Department. As of 1990 it became the DHSHD under the Ministry of Construction. Much of the DHSHD remit overlaps with the YCDC. A general difference is that YCDC administers privately owned land and DHSHD administers union government-owned land (Nippon Koei Co. Ltd. et al n.d., 2-138-140). DHSHD has now been revamped as the Department of Housing and Urban Development (DHUD). At this time the DHSHD also initiated a ‘huts to apartments’ scheme that allowed select squatters to receive flats in the new builds once they had been cleared from the land (Seekins 2011, 168).

50. Muslim lawyer, Yangon, 2015.

51. Heritage specialist, Yangon, 2015.

52. Yangon City Development Committee, Ordinance 9/1999, The State Peace and Development Council.

53. Interviews with foreign and local heritage specialists, Yangon, 2016; Muslim developer, Yangon, 2016.

54. In 1994–95 a survey identified 1,667 ‘dangerous’ buildings in Yangon, with 1,557 of these demolished or renovated by 2019 (Yee Ywal Myint 2019). It is not clear what time period these buildings were from. With multiple recent cases of the collapse of contract daik (contract buildings – referring to apartment buildings built by private contractors), and the fact that private contractors in Yangon were not licensed until May 1992 (Working People’s Daily 1992), it is possible that there are more ‘dangerous’ buildings today and that some of the 1,667 included post-war buildings.

55. A Housing Department/UNCHS/UNDP (1984, 21) report notes that most Central Business District (CBD) buildings are 4 stories high with 12–24 units.

56. Muslim developer, 2016.

57. Burmese Law Firm, Yangon, 2016.

58. One such grant of confiscated land reviewed by the author had a quarterly fee of 5,549 MMK (or less than $5 at the time of fieldwork), payable to YCDC from the grant holder.

59. Interview, waqf trustee, Yangon, 2018.

60. Heritage lawyer, Yangon, 2016; Muslim property developer, Yangon, 2016.

61. Interviews: Burmese Indian Muslim homeowner, Yangon, 2017; Muslim developer and property owner, Yangon, 2016; heritage lawyer, Yangon, 2016.

62. There is no way to independently verify this estimate as land records are paper and cadastral maps and ownership information are kept in separate repositories. Furthermore, there is no mandatory registration of government-owned land or leases on government-owned land.

63. Interviews with foreign and local heritage specialists, Yangon, 2016.

64. The new legislation gave additional powers to the municipality, including transferring key sectors such as land administration, planning, construction and demolition of buildings, and land development from the Housing Department (UNCHS 1990, 67–68). See also: YCDC (2014), 20.

65. Interviews, Muslim former owner of a confiscated property, 2018; mutawalli of a confiscated waqf property, 2018.

Additional information

Funding

This research was supported by the Dickson Poon Fellowship from the Dickson Poon School of Law, King’s College London. Additional archival work was supported by the British Academy through the Global Challenges Research Fund (GCRF), under Grant HDV190226, “Framing Living Heritage as Tool to Prevent Spatial Violence.”