Improving the Legal & Policy Frameworks Relating to Land Management in Myanmar

Executive Summary
Myanmar is a country in the middle of a dramatic series of reforms which have the potential to create a more inclusive society in which the benefits of economic development and greater integration into the regional and global economies are equitably shared amongst all citizens. Natural resources in the country, including land, forests and water will be essential components of this development. Decisions on how land will be used, by whom and for what purposes could have far reaching consequences for the people of Myanmar, the majority of whom are smallholder farmers living in the countryside. In many areas of the country rural livelihoods are under threat as smallholder farmers are being displaced from their land due to granting of large-scale land concessions.

This review analyses the current laws and economic situation related to access to land for smallholder farmers in Myanmar. It makes recommendations for improvements to be written into policy and legislation, and institutions and mechanisms to be created, which will ensure smallholder farmers and especially women gain full legal protection of their land tenure rights. 

The Government recognizes that if issues relating to land tenure security and land conflict are not addressed it could have negative impacts on foreign direct investment, sustainable economic growth, environmental protection, social harmony and development of a stable system of democratic
governance that respects the rights of all citizens.
In respect of this recognition there is a pressing need for the Government of Myanmar to draft a comprehensive policy on land management and a comprehensive Land Law. To draft these requires careful study and inclusive consultation with civil society, farmers, private sector companies and other stakeholders. Policy and legal instruments should provide land tenure security and social safeguards for smallholder farmers, families and communities and explicitly secure the rights of women. Policy
should also formally recognize customary laws relating to land resources, and provide mechanisms for communal ownership of land to ensure the rights of ethnic minority populations are protected, and their participation in decision making processes relating to land is secured. The Government needs to recognize the value of rotational agricultural systems as productive land use and protect their specific land tenure regimes. Any policy must also provide fair and transparent mechanisms for handling land conflicts when they arise, and balance interests for national food security, economic development and the rights of all citizens.

The Farmland Law and the VFV Law were approved by Parliament on March 30th, 2012. There have been a few improvements compared to previous laws such as recognition of non-rotational taungya as a legitimate land-use and recognition that farmers are using VFV lands without formal recognition by the Government. However overall the Laws lack clarity and provide weak protection of the rights of smallholder farmers in upland areas and do not explicitly state the equal rights of women to register and inherit land or be granted land-use rights for VFV land. The Laws remain designed primarily to foster promotion of large-scale agricultural investment and fail to provide adequate safeguards for the majority of farmers who are smallholders. In particular tenure security for farmland remains weak due to the Government retaining power to rescind farmland use rights leaving smallholders vulnerable to dispossession of their land-use rights. In addition there remains some unnecessary de-facto
government control over the crop choices of farmers.

In particular it is recommended that recognition of land-use rights under customary law and the creation of mechanisms for communal registration of land-use rights, be included in the Farmland and VFV Laws. There needs to be a comprehensive process of re-classifying land in the country to reflect land-use changes resulting from conversion of forests and VFV land into agricultural land, loss of agricultural land due to development projects, urban expansion and population growth. This will serve to reduce land conflict in the countryside and provide genuine tenure security for smallholders. Furthermore the specific and independent rights of women must be explicitly stated in the Laws.

Added to this the fundamental principle of free, prior and informed consent should be enshrined, especially in regard to removal of land-use rights in the national interest.
It is also necessary that the Government works in partnership with civil society and farmers associations to revise the Farmland and VFV Laws. There is a need to guarantee representation of these groups in Farmland Administration Bodies at all levels. Additionally it is vital that mechanisms and information management tools are created that allow free public access to information on land use and management. This is essential if decisions made, are to be appropriate and benefit all citizens in Myanmar.

Farmers are intimately connected to the land which they farm and are best placed to make decisions over which crops are most suitable to be grown. Farmers should be supported through provision of information on sustainable cultivation techniques, crops and technologies to allow them to make informed crop choices on their own land and undue restrictions should be removed from the Farmland Law.

It is considered a priority that the system for registration and transfer of farmland and VFV land, and payment of fees and taxes, be streamlined and made as simple and accessible as possible for smallholder farmers. It is suggested that establishing a one window service for all these functions at the lowest possible level of Government be explored. This coupled with amendments to legislation to address gaps and inconsistencies will make it increasingly possible for smallholder farmers to benefit from protection of their tenure rights under the law.

Fair and equitable dispute resolution mechanisms are fundamental to the successful implementation of any law. It is therefore recommended that the Government create an independent administrative body to hear land disputes. This body must be separate from sectoral ministries and must be accessible to all citizens through having branches in all states and regions. This body must be authorized to hear appeals against decisions made by Farmland Administration Bodies. Coupled with this there is a need to develop non-judicial adjudication mechanisms which ensure equal participation of all parties involved in land disputes. Finally modern safeguards relating to the payment of fair market compensation for the public taking of land property rights should be incorporated into the Land Law, and the Land Acquisition Act should be repealed.

In conclusion the existing legal framework relating to land resources and tenure security in Myanmar is obsolete, needs to be better harmonized, and should incorporate international and regional best practices relating to land management. Current weaknesses in the Farmland and VFV Laws should be immediately addressed through revising bye-laws and regulations.

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