From The Authoritative Land Management System To The Federal Land Governance System | Land Portal | Securing Land Rights Through Open Data
Author(s): 
A Commentary by Si Thu (Land in Our Hands) published through Transnational Institute (TNI). Photo credit Tom Kramer.
Language of the news reported: 
English

Like different land management systems across the world, land management systems varied in different territories. 

When we say “from the authoritative land management system to the federal land governance system,” the origin of land governance in Myanmar was not actually derived from the authoritative land management system. People had elected their own Saopha, Duwa, Saophya, Saoke and Taung Paing Ram Oak who were chieftains inside their own sovereign territories and had been ruling based on their own customs and traditions passed down from generations until being colonized by the British Colonial government. Like different land management systems across the world, land management systems varied in different territories. Even in “pyima” territories understood to be homogenously populated by the Bamar at current time, there were once indisputably existed eras of competing armed territories, city states and states such as Pinya, Myin Sai, Thayehkittaya, Sagaing, Amarapura, Mandalay (Yadanapon), Inwa, Kaythumathi (Taunggu) and Hantharwadi (Pegu). As such, it is a proven evidence that a union state like today has never existed before. If the first, second and third Burmese Kingdoms built by King Anawrathar, King Bayitnaung and King Alaungphaya had actually existed, it could not be denied that they had been busy fighting against rival city states through the successive eras until the Colonial British arrived. Descendants of Shan Saopha, Kachin Duwa, Karenni Saophra and Chin Ram Oak are the evidence of the existence of sovereign frontier nations throughout the history. They had been managing their land with their own customs and traditions within their territories for thousands of years.

As the competition between big colonial powers soared, the world entered into the dark age as the fires of wars between countries were set ablaze and the colonial powers raced against each other for territorial expansion. There were two different types of invasion, which were colonization and incursion of fascist regime. A key feature of colonization was the exploitation of land and natural resources. Before Burma was born as a nation, the British colonial government tried to rule all the different territories and city states as a single entity despite the huge diversity in indigenous composition. Due to completely distinct geographies and land uses systems which have been practiced for thousands of years, the British tried to group the territories based on some similarities and divided into five general categories for governance. Actually, it was only four categories which were governed by the British. The British colonial administrators and the Myanmar King made an agreement to leave Karenni State as an independent state, free from any outside influence, and this agreement was signed by the Secretary of State for India and Burma, TD Forset and the then King’s Signet, Kinwun MinGyi on 21st June 1875. Nevertheless, there would be five groups of territories if independent Karenni State is also included:

 

1. Ministerial Burma

(Burma Proper)

 

2. Burma Frontier (Self-administrative areas)

(Part One)

 

3. Burma Frontier (Designated Administrative areas)

(Part Two)

 

4. Hill Stations

 

5. Independent Karenni State

 

Since that time, there was no specific category and classification of lands, but rather managed lands based on unique geographical landscapes. A nation called Burma was given birth for the first time after the annexation of areas populated by ethnic Karen, Mon, Arakan and Bamar (Mon and Arakan territories were colonized the earliest) into Burma Proper under the direct rule of the British.  The First Kingdom, Second Kingdom and Third Kingdom of Burma, said to be established by the Kings Anawrahtar, Bayint Naung and Alaungphaya, have never actually existed before the establishment of Burma Proper by the British colonial government. All lands inside Burma were nationalized under colonial rule in 1861 to impose a land governance regime through Lower Burma Land Revenue and Upper Burma Land Revenue Manual which contained rules, regulations, and procedural requirements based on the geographical location. People were entitled to land holding after paying land tax for 12 consecutive years, which allowed them to lease, mortgage, sell and inherit. There had been some establishments of vacant, fallow and virgin land but on a minimal scale. Land governance was mainly enforced in Burma Proper areas but had low impact on hill tracts such as Burma Frontiers (self-administrative areas; part one), designated administrative areas (part two) and hill stations. 

On February 12 of 1947, General Aung San representing Burma Proper, signed the historic Panglong agreement with Kachin, Chin and Shan leaders from Federated Shan States, Kachin Hill Tracts and Chin Hill District, to gain independence from the British simultaneously. They committed to establishing a Federal Union that guarantees for equal self-determination after independence and then to build a whole new nation state. All ethnic nationalities were still practicing their own land governance systems even after independence as the Panglong Agreement was not ethnicity-based but territory-based. After General Aung San who represented Burma Proper was assassinated, U Nu became the chair of AFPLF (Anti-Fascist People’s Freedom League) and sent U Chan Tun on an official mission to India to observe local cultures, geographical distinctions, and different land governance systems. Within two months, the 1947 Constitution of Burma was drafted quickly. It deliberately deviated from the essence of the Panglong Spirit and drove the country into civil war. The Karen, Mon and Arakan ethnic peoples launched armed struggles for national equality. Militant resistance armies such as the People’s Army (Pyithu Ye Baw) and the White Army (Ye Baw Phyu) were formed; the communist party fought political ideology warfare; and the Karennis launched an armed Revolution and Resistance movement. Escalation of the second wave of civil wars was re-fueled after a number of events: the growing trend of grabbing or enclosing of ethnic lands by the military Government; declaring martial law  in 13 territories ruled by Shan Princes (Saopha) by justifying the defense operations against the Chinese Kuomintang by Ne Win-led Government; annexing Hpimaw, Gawlan and Kanghpang areas under the rule of the then Kachin Duwa to China; and imposing Buddhism as national religion which violated the Panglong principles of self-determination, democratic principles and national equality. 

In February 1962, a multi-ethnic conference of the Union of Burma was organized to discuss principles for establishing a Federal Union that could guarantee national equality and self-determination through the amendment of 1947 constitution. On the second day of the conference, on 1st March, a military coup took place under the leadership of General Ne Win, which overtly violated the prior commitments to establish a Federal Union. Even though many Burmese nationalities do not like using the “Bamar dominant race mentality”, throughout the history from U Nu to U Ne Win era up until the current period, the historical events said otherwise. Invasion and occupation of the ethnic territories from Burma Proper territory were ruthlessly committed, ethnic territories were sold to foreign countries, and legal instruments such as land laws and notifications were issued to destroy the historical traces of land governance system and customary systems of the ethnic nationalities by force. Until now, chauvinistic land laws have been passed, one after another, without the consent of ethnic peoples. 

A Land Allotment Act was adopted in 1963 to nationalize farmland by providing compensation to the farmland owners. Tenant duty was to be paid to the government on a per acre basic. Through this law, ethnic land management systems, socio-cultural relations to land, and history of land of Karen, Mon and Arakan peoples were targeted for destruction, and people in ethnic areas adjacent to Burma Proper and places arbitrarily occupied by the Bamar began losing their land ownership. An order issued in 1965, however, exempted tenant duty for farmers. Nevertheless, selling and mortgaging land, and sub-leasing were banned out of a concern of returning back to land-based capitalism. The Vacant Land Establishment Right Act was adopted in 1978 during the era of the People’s Committee; but was only enforced in small areas of Burma Proper. The Socialist government committed serious human rights violations following the introduction of a duty crops scheme, as they started harassing and ill-treating people who were not able to meet their duty crop quotas. The punishment often involved arrest and imprisonment, confiscation of land, and even corporal punishment, including torturing people under the scorching sun and by forcing them to do sit-ups and push-ups or to endure being’ leap frogged’ by the army personnel and police officers. The Socialist government lost power after the 8888 political uprising, leading to the State Law and Order Restoration Council (SLORC) government coming to power and a change back into a market economy. Land governance was handed over to departments after the councils were dissolved. The Vacant and Fallow Land Management Central Committee was established in 1991, which then later allocated land concessions to the businesses. It was an order issued by SLORC government while the country was hit by severe poverty to attract national and foreign investors by converting land into a commodity. This order was designed to justify and facilitate land confiscation by big business actors and to allow land monopoly by the people closely associated with SLORC. After the Saffron Revolution in 2007, the State Peace and Development Council (SPDC) government adopted the 2008 Constitution of Myanmar. At the same time, a second draft of the Constitution of the Federal Republic of the Union of Burma was prepared and developed by a Federal Constitutional Design and Development Coordination (FCDDC) team, composed of multi-ethnic alliances. Previously, a first draft has been already prepared based on the commitments made in Panglong conference with the participation from different groups in Marneplaw from 1993 to 1996. 

When the quasi-civilian Thein Sein government came into power in 2010, the Farmers Rights Protection Act (1963), the Tenant Act (1963) and the amended Farmland Appropriation Act (1953), which have long existed through successive regimes of Socialist Government, SLORC and SPDC governments, were all abolished. Instead, the Farmland Law (2012) and the Vacant, Fallow and Virgin Land Management Law and by-laws (2012) were adopted consecutively in 2012. The Protection and Promotion of Farmer Rights and Interest Law was adopted in 2013. Farmland Law (2012) substantially covers orchards, paddy land, upland, silty land, perennial crop land, nipa palm land and hillside cultivation land, including vegetable gardens and alluvial land. But the problem was the exclusion of shifting cultivation land, which perhaps meant either that there was no consideration for the ethnic nationalities or the government was simply ignoring them. A question then came up whether the government was deliberately leaving it out in order to pave a way for future projects. But the undeniable fact is the continuing oppression of the ethnic nationalities from U Nu to Than Shwe regimes. 

The application of Form (7), as prescribed by the 2012 Farmland Law and by-laws, transforms the land ownership rights of the ethnic peoples which are passed down from generations, into a mere land use right. The law turns the original owners of the land into tenant workers obliged to pay crops and land taxes to the central government. Ethnic farmers become landless from landed and become slaves from autonomous people. Moreover, this is a plain attempt to legalize the ugly legacy of the authoritative SPDC regime. It has resulted in widespread land grabbing, including in war-torn ethnic areas after signing the nationwide ceasefire agreement (NCA), which are lands that were not accessible by the central government before. The 2012 laws were built upon the Vacant, Fallow and Virgin Land Management Law that had been passed previously by the SPDC government in order to formalize and legalize arbitrary confiscation of ethnic lands and to justify serious human rights violations committed at different eras of Socialist Government and the SLORC/SPDC government, which had destroyed lives of countless families and their only way of life. At the same time the Ministry of Agriculture, Livestock and Irrigation excluded the public, CSOs and relevant experts from the law-making process and adopted the law within a very short time. The 2012 laws provided special rights to big business actors to grab land in the name of the Vacant, Fallow and Virgin Land Management Law as well as enabled an initiative to appropriate more land across the ceasefire territories to which they did not have access during the conflicts. 

These laws clearly have no concern for the ethnic nationalities, and so activists have been constantly demanding to abolish them under the democratic Government. Instead, the government ignored the widespread demand from civil society and submitted bills to the parliament in 2017 for the amendment of Vacant, Fallow and Virgin Land Management Law, the 2012 Farmland Law and the 2017 Land Acquisition bill. The latter superseded the 1894 Land Appropriation Act which contained provisions of human rights principles as well as the requirement to notify the public twice and to consult with the farmers before the act of appropriation. It is obvious that land confiscations committed since the time of Prime Minister U Nu until the Nobel Laureate Aung San Su Kyi’s government in 2018 directly violated the 1894 Land Appropriation Act. It is also in contradiction with the historic Panglong Spirit to establish a Federal Union which guarantees equality and self-determination of the ethnic nationalities as well as a grave violation of political rights and human rights entitled to fellow ethnic people. 

It should be noted in the country’s history how some foreign agencies, ignorant of the Myanmar political context, are actively contributing to violating the rights to equality and Panglong commitments by providing funding and technical assistance to the local organizations which thrive on project money. Some local organizations which were involved in drafting the National Land Use Policy during president Thein Sein regime (the de facto military Government) have continued to work closely with foreign organizations to contribute to passing of VFV Law, the Farmland Law, and the Land Acquisition bill. These have clearly been written in history. Since 2012, the National Land Use Policy was drafted in a closed door setting where many local and foreign agencies actively participated. In 2014, ethnic nationalities working towards equality and federal land management systems merged with Burmese allies from the mainland to form an alliance called Land in Our Hands (LIOH). Since then LIOH has mobilized campaigns against the process through different resistance strategies including organizing protests for example in the Kachin State, mass occupying public consultations, boycotting by leaving the ongoing meetings, and bringing voices from all states and regions until 2015 for almost two years. The National Land Use Policy (NLUP was adopted in January 2016. LIOH was able to influence and advocate to ensure critical principles such as equality, self-determination, minority rights, democratic principles, human rights and gender equality were captured in the adopted NLUP (2016), and provisions related to federal land management could be found there in Chapter 8. Similar to what happened with the 1947 Constitution, the political process in Myanmar always resulted in manipulation and domination by majority Burmese ethnic. Many provisions which contradicted with federal land governance could also be found substantially in several parts of the policy. 

In 2016, the Union Commission for the Assessment of Legal Affairs and Special Issues, led by U Shwe Mann, came up with the amendment proposal to the Union Parliament on the National Land Use policy, entitled “Irrelevant and Inappropriate Provisions”, in order to draft a National Land Law. In summary, it mentioned Chapter 8 on the land rights of ethnic nationalities and said that the issue did not warrant a separate chapter. The commission’s proposal also recommended to register traditional shifting cultivation land of the ethnic people under the land use rights of ethnic nationalities. But officially recognizing the registration of shifting cultivation practices and lands in the policy is not appropriate. The commission mentioned it was not the right time to include policy provision regarding with gender equality by stating equal rights have been already granted in paragraph 8(a) and other land related laws. He even suggested additional provision to allow confiscation of state-owned land for management purposes to serve the interest of people by claiming the State as the ultimate owner of all lands inside its boundary. 

The government declared that they are marching towards a federal union by signing a national ceasefire agreement. They claimed to hold a 21st Century Peace Conference with Panglong spirit, whereas in reality, in contrast to the Panglong spirit and commitments to build a federal union based on the values of equality and self-determination, the government kept making laws which could send not only the farmers, but also the activists and the movement organizations to jail. They have enabled the legalization of confiscated lands by the big companies and business actors from the farmers or small-scale land holders through the rush adoption of Vacant, Fallow and Virgin Land Management Law, and Land Confiscation, Relocation and Resettlement bill (2019), which was just a name change of the land acquisition act biased towards land grabbing investors. What has happened strongly contradicts the “our lives, our history and our sovereignty” position of the ethnic nationalities which have existed for thousands of years since the era of U Nu government up until now. Grievances related to land sovereignty have been one of the key drivers of the civil war. For the ethnic nationalities, many questions still remain whether the federal claim made by successive Burmese governments are real or not. Meanwhile the second draft of Constitution of the Federal Republic of the Union of Burma has been completed by FCDDC, and another federal constitution which is quite similar to the one by FCDDC has also been completed by United Nationalities Alliance (UNA+), which is a coalition of ethnic political parties and some Burmese political forces with a core belief in equality. Many ethnic states have finished developing their own land policies, and some are preparing. In 2000, when each ethnic state started preparing their own constitutions, five of them drafted a federal constitution whereas Chin state was heading towards a confederation. And now, both Wa Region and Rakhine State started asking for confederations. This trend can be attributed to the repeated acts of violations within seventy years of political negotiation process.

Even though the Burmese government has declared its commitment to moving toward a federal union that guarantees equality and self-determination based on the Panglong Spirit by signing NCA and holding a 21st Century Peace conference, they keep manufacturing land policies and laws that contradict historic Panglong Commitments. It is the key root cause of political grievance and challenge in transforming authoritative land management system towards federal land management regime in Myanmar.       

  

*This is an English translated version from the original article written in Myanmar language. 

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