Rule of Law Expedited: Land Title Reform and Justice in Burma (Myanmar)

Abstract

The development of rule of law is touted as one of the most important considerations in Burma (Myanmar) today, yet its meaning is highly contested after fifty years of military rule. This paper will examine how the rule of law in Burma’s transitional political environment has been influenced by the legacies of military rule and the government’s development policies since 2011. A series of laws introduced by the Thein Sein government under the rubric of rule of law and good governance had a significant impact upon small hold farmers across the country. While some laws specifically related to farmers and their land, others encouraged private investment in the land used by farmers. The combined effect of these laws was to formalise the pattern of land grabbing that had developed under the previous government and to encourage land speculation. Moreover, they show how an expedited procedural rule of law incited conflict and further injustice. Any progress towards substantive justice and a more democratic rule of law must keep pace with improvements in the country’s limited administrative and judicial capacities. Whether, and how far, Burma can develop and move beyond a thin or procedural rule of law will be tested as the country experiences life under the NLD government.

Keywords:

• Burma
• Myanmar
• rule of law
• governance
• land reform
• agriculture
• foreign investment

Notes

1. This observation is not limited to political leaders. It also includes advisers to the President, members of the military, and university administrators whom the author witnessed mentioning either governance and/or rule of law at every public presentation from 2011 to 2016.

2. See also Prasse-Freeman (2015).

3. This is also the general assessment of United Nations representatives who have set up four training centres around the country to train lawyers on rule of law principles. Author interview with UNDP Democratic Governance Programme Rule of Law specialists (Yangon, November 2015).

4. For an account of rule of law under authoritarian regimes, and rule of law in Asia, see for example Jayasuriya (2001), Tamanaha (2004), Moustafa (2008), Ginsburg & Moustafa (2008) and Rajah (2012).

5. On the basis of Morlino’s classification, and given the 2008 Constitution and the military’s quasi-executive and legislative roles, it may be possible to classify the country as being in transition towards a more stable mixed regime. Constitutional and military changes would be required to place it in transition towards minimal democracy.

6. For an account of the state of the judiciary and the legal profession in Burma see Cheesman and Kyaw Min San (2013), and more generally Cheesman (2015b).

7. The acquisition of land has taken place under the authority of the Land Acquisition Act (1894), which grants the state the authority to acquire any land it sees fit to acquire for public purposes or private development. This includes land the government deems to be vacant, fallow or wasteland.

8. For an account of the rise of politically influential oligarchs and elites in Myanmar see Jones (2014) and Ford, Gillan, and Thein (2016).

9. See for example Global Witness (2015), KHRG (2015) and Woods (2015).

10. See The Irrawaddy (2012), Amnesty International (2015) and Simpson (2013).

11. Author interview with NLD MPs and Land Acquisition Inquiry Commission (Naypyidaw, November 2015).

12. For a discussion of taungya or swidden cultivation in the Farmland Law see Ennion (2015, pp. 67–71).

13. Author interview with Director of a leading environmental NGO based in Yangon (Yangon, November 2015).

14. Author interview with Director of environmental NGO (Yangon, November 2015); see also Ennion (2015) on the better integration of customary laws and practices with state land management practices.