ARE THE ODDS FOR JUSTICE ‘STACKED AGAINST’ THEM? Challenges and Opportunities to Securing Land Claims by Smallholder Farmers in Myanmar

SiuSue Mark

Pyoe Pin Programme (DFID-SIDA Governance Initiative)

24th March 2015

Introduction• In 2012, GoM passed Farmland Law & Vacant, Fallow,

Virgin (VFV) Land Law—formalized land market. • right to sell, exchange, access credit, inherit, lease

• De Soto (2000): strong legally-enforceable institution of property rights to transform “dead capital”

• private property titles to create competitive land rental and sales market

• attributes the state a more central role-- the regulator to enhance efficiency

Introduction• Economistic model problematic for all areas• Only applies where there is a land market—where

communities are familiar with state law

• In these areas, at least two major obstacles to achieving efficient and equitable outcomes

• First: multiple regimes have created “stacked laws” (Roquas

2002) • Second: history of patron-clientelism (Scott 1972) mediates

access to land & legal justice

Question

In Myanmar, a country with a ‘stacked’ legal framework, how do smallholder farmers engage with the law to strengthen legitimacy of their claims to land against confiscations?

A few caveats

• First, not a reified concept of the “rule of law”

• Second, does not negate the presence of a wide range of other ‘responses being employed by farmers--outside of the legal system

• Thirdly, offensive ‘resistance’ or defensive ‘protection’ mindset (see Forsyth 2009)

Legacy of ‘Stacked Laws’

• Legal pluralism

‘Stack’: what appears to be a chaotic system, a degree of structure• the way the way people can tease out and strategically employ separate elements of such a system

• not only formal state laws to which people will invoke, but also non-state norms

Four regimesBritish colonial rule (1824-1948):

1876 Lower Burma Land and Revenue Act

1894 Land Acquisition Act (still active)

Post-independence period (1948-1962) • 1947 (1974, 2008) Constitution: State is ultimate owner of land• 1953 Land Nationalization Act

• “land to the tiller” policy• sales, mortgage of land were not allowed

• in practice, system that resembled formal law created • “10-kyat” contracts, that resemble state-sanctioned

contracts

Four regimesMilitary rule (1962-2010)

• Burmese Way to Socialism: • nationalism, socialism and Buddhism

• 1963 Tenancy Law - farmers as tenants to state

• 1963 Farmer’s Rights Protection Law • no seizure of land for debts, except by state

• 1991 “Wasteland Instructions”

Current legal framework• By 2012, already at least 73 active laws (GoM is aware)

• 2008 Constitution• (Conditional) Land use rights, but also protection of

private property

• 2012 Farmland Law: land market through land-use registration and certification• more guidance for calculating compensation • In a closed-loop, decisions may not be appealed to a

court of law

• 2012 VFV Law: regulates lease of “vacant,” “fallow” or “virgin” land to alternative use

Impact of Stacked Law• 2012 Farmland Law revoked some of the older laws, but

some farmers still invoke them

• 1963 Tenancy Law, state may have given tenancy rights to farmers on land that was never registered as farmland

• Now, threatened with confiscation by someone bearing a land lease certificate under the 2012 VFV Law, these farmers claim their rights under the old laws (and often alongside the belief that time gives them ‘customary’ right)

Legacy of Patron-Clientelism• context of a society built on patron-client relationships

• From 1962 to 2010, the military state engaged in rent-seeking behavior, as patron to a network of clients• many given land under the 1991 “Wasteland

Instructions”

• 2014, Parliamentary Land Commission• Land concessions violated 1894 Land Acquisition Act• ½ million acres to be returned

Legacy of Patron-Clientelism• Break down of mutually-beneficial patron-client

relationships • Local elites creating new relations of patronage

• Laws do not prioritize awarding of titles to smallholders

• Material incentives have led to local elites’ selective application of the 2012 Farmland and VFV Laws

• Criminalization of farmers

Farmers engage with laws: Uncommon

• Fear, little information, high costs, limited availability of lawyers• Cases subsidized by legal aid

• No known recent court cases that have resulted in farmers getting land back; at best, increased compensation

• Most returns from Parliamentary Land Commission’s and out of court negotiations

• Nonetheless, growing number of legal cases that play out in a complex political play

Evolving Judiciary• In reform, judges are more independent than before

• High profile cases: • judges more hesitant to take bribes• more capable judges being assigned • Suspect decisions are sometimes questioned

• Public defenders shy away from appearing political• Attempt to show weaknesses in implementation of these

laws and weaknesses in the laws

Starts with Rightful Resistance

• “Critique within the hegemony” (O’ Brien 1996)

• Communities go through “approved channels and use a regime’s policies and legitimating myths to justify their defiance”

• “instruments of domination which facilitate control can be turned to new purposes …of entitlement, inclusion, and empowerment”

Legal Tactics within “Stacked Laws”• Legal arguments that derive from a selective use of both

new and old laws, even revoked ones

For example:• Farmers argue that old confiscations broke the still active

1894 Land Acquisition Act • But 1894 law does not give compensation guidance,

farmers then retroactively apply the guidance in the 2012 Farmland Law back to the year of confiscation in order to calculate compensation amounts

• land cases draw media and civil society groups, who amplify local communities’ demands for justice.

Thank you for your attention!