Indigenous World 2019: Myanmar

Written on 24 April 2019. Posted in Myanmar

Myanmar’s diverse population encompasses over 100 different ethnic groups. The Burmans make up an estimated 68% of Myanmar’s 51.5 million people. The country is divided into seven Burman-dominated regions and seven ethnic states.

The Burmese government refers to those groups generally considered to be indigenous peoples as “ethnic nationalities”. This includes the Shan, Karen, Rakhine, Karenni, Chin, Kachin and Mon. However, there are more ethnic groups that are considered or see themselves as indigenous peoples, such as the Akha, Lisu, Lahu, Mru and many others. Myanmar has been ruled by a succession of Burman-dominated military regimes since the popularly-elected government was toppled in 1962. The general election held on 8 November 2015 saw Aung San Suu Kyi’s National League for Democracy (NLD) unseat the Union Solidarity and Development Party (USDP) in a landslide. The subsequent transfer of power took place peacefully and, after half a century of military-dominated rule, the new administration took office with a formal handover ceremony on 30 March 2016.

The NLD, led by Aung San Suu Kyi as State Counsellor, has begun the process of “national reconciliation” in a delicate coexistence with the military, which retains 25% of unelected seats in the Hluttaw (House of Representatives), allowing it a veto over constitutional change. Myanmar voted in favour of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly in 2007, but has not signed the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and nor has it ratified ILO Convention No. 169. It is party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC), although it has thus far failed to consider many of the CEDAW and CRC committees’ respective recommendations. 

Criminalization of humanitarian aid distribution under national law

The continued application of archaic law to punish those exercising basic freedoms, and the inability and unwillingness of the elected civilian government to utilize the parliamentary majority to repeal or amend such laws continues to form a barrier to peaceful coexistence and the development of a genuine federal union of Myanmar’s ethnic states and peoples. The arbitrary use of such laws is reminiscent of military oppression and contradicts the National League of Democracy’s (NLD) promise of democracy and human rights and runs contrary to pre-election commitments to “revoke legislation that harms the freedom and security that people should have by right”.¹

The Unlawful Association Act,² for example, sets out prison terms of up to three years for being either a member of, assisting or making contributions to, an “unlawful association” and was used during Myanmar’s decades of military junta rule to detain those linked to rebel groups. The Tatmadaw (Burmese Military) has blocked aid to an estimated 100,000 Internally Displaced Persons (IDPs) since the ceasefire between the Kachin Independence Army (KIA) and the Tatmadaw collapsed in 2011. Despite filling major gaps in humanitarian assistance following government restrictions on humanitarian aid, Kachin civil society organizations have been targeted with this law.³

In June 2018, Church aid workers from the Kachin Baptist Convention, which acts as one of the largest aid distributors to displaced communities, were warned by Colonel Thura Myo Tin, the Kachin State Security and Border Affairs Minister, that arrests under this law would take place for travelling within KIA-controlled areas.⁴ Despite all border areas being located in KIA-controlled areas, the KBC was forced to cease its humanitarian operations.⁵ Later, in October, 15 members of the Kachin Baptist Convention were detained by the authorities under Article 17 of the Unlawful Association Act as they travelled back from an aid distribution mission.⁶

On 27 August 2018, the UN Fact-Finding Mission released findings that the Myanmar authorities “frequently and arbitrarily denied” humanitarian aid to civilians in Kachin State. Yanghee Lee noted in May that “wilful impediment of relief supplies” would likely amount to war crimes under international law.⁷

Criminalization of freedom of speech and freedom of assembly under national law

In December 2018, the Assistance Association for Political Prisoners (AAPP) confirmed that there were 327 individuals oppressed for their political activities in Myanmar, with many of the activists charged and sentenced under Sections 19 and 20 of the Peaceful Assembly and Peaceful Procession Law (PAPPL) and Article 500 of the Penal Code. These laws are used as tools to restrict the right to freedom of expression and, in December alone, 29 activists fell afoul of the PAPPL and Article 3 of the Penal Code.⁸

Designed to silence criticism of the military and its actions, the PAPPL requirements on consent to hold an assembly, and the Penal Code’s criminalization of statements “likely to cause fear or alarm to the public, or to any section of the public, whereby any person may be induced to commit an offence against the State or against the public tranquillity”⁹ continue to be used extensively to detain peaceful protestors speaking out on matters of public interest. ¹⁰

Again, rather than repealing or amending such policy, the 2018 PAPPL amendment bill, which will impose tougher restrictions, was passed in the Amyotha Hluttaw (Upper House of Parliament). Under the proposed amendments, organizers of peaceful assemblies will be required to submit information on their sources of funding for any assemblies, the content of all slogans and signs to be used in the protest, and must submit to a requirement to follow pre-defined local regulations and related agreements. Such provisions mean that protestors must come to an agreement with the local authorities and police which, if not upheld, will result in criminal charges.¹¹

In October, three Kachin activists, Nang Pu, Lum Zawng and Zau Jat, were arrested for leading a peaceful demonstration in violation of Article 19 of the PAPPL by calling for humanitarian assistance for Kachin IDPs caught in the crossfire between the KIA and Tatmadaw.¹² They were also sued by Lt. Col. Myo Min Oo for defaming the military, under Article 500 of the Penal Code. The three activists were subsequently sentenced to six months in prison and each fined 500,000 MMK (320 USD).¹³ Following their imprisonment, three more Kachin activists, Brang Mai, Seng Hkum Awng, and Sut Seng Htoi, were charged and sentenced under the PAPPL for protesting against the sentencing of their friends. In response, national coalitions and networks such as the World Kachin Congress, the Karen Peace Support Network and international organizations such as Human Rights Watch and Burma Campaign UK called for the release of three Kachin protestors charged under the PAPPL and called upon the civilian government to exert its executive power to address arbitrary arrests under the Penal Code.¹⁴

It is important to emphasize that this is not confined to areas of the country still suffering from ongoing conflict. In January 2018, five Karenni men were sentenced to 20-day prison terms for violating Article 19 of the PAPL by refusing a fine. The five men, members of the Union of Karenni State Youth (UKSY) and the Karenni State Farmers Union, were protesting at the State Government’s and Parliament’s silence over the alleged killings of three Karen National Progressive Party (KNPP) staff and one civilian two days earlier.¹⁵ It is alleged that the killings took place during a raid on the group’s base in Loikaw, Kayah State on 20 December 2017.¹⁶

In July, 16 Karenni youth activists were sued under Sections 19 and 20 of the PAPPL and Section 505 of the Penal Code in connection with protests over the construction of a statue of General Aung Sang, as well as the distribution of pamphlets describing the history of Karenni State. Approximately 1,000 local Karenni marched against the planned statue on 3 July 2018. The march turned violent when police blocked the protestors from entering the park where the statue was to be erected.¹⁷ After meeting with the protestors, the state minister agreed to postpone the project and ordered local officials to consult their constituents in order to understand whether there was support for the statue before making a final decision. Despite the apparent reprieve, 16 people who were involved in organizing the protest were later informed that they were being sued by the Loikaw Township Administrator under the stated legislation.¹⁸ 

“Landless Criminals”: 2018 Amendments to the Virgin Fallow and Vacant Land Law

The beginning of 2018 saw the initiation of the much anticipated National Land Use Council, with a mandate to implement the aims, guidelines and basic principles of the National Land Use Policy (NLUP).¹⁹ The policy, described at the forum as a “living document”, completed two years earlier, stipulates the creation of a National Land Use Council to coordinate the drafting of the National Land Law, which will seek to harmonize overlapping land policy. Following its inaugural meeting in April, the Council organized the multi-stakeholder National Land Use Forum for October.²⁰

Participants at the forum included: Ministers on the National Land Use Council; chief ministers of states and regions; lawmakers; ethnic representatives; academics; civil society groups; and international organizations. The discussion focused largely on a strengthening of land tenure rights, reflecting the first “basic principle” of the NLUP: “To legally recognize and protect legitimate land tenure rights of people, as recognized by the local community, with particular attention to vulnerable groups such as smallholder farmers, the poor, ethnic nationalities and women.” Examples discussed were the right to own property as an individual or joint titleholder, to divide property in case of divorce, and to recognize customary tenure and shifting cultivation.²¹

The long-awaited and much anticipated formation and subsequent panel meetings of the National Land Use Council were, however, overshadowed by the continued tinkering with existing policy, known and understood to not only fail to safeguard local communities but also to violate indigenous land rights. Amendments to the Vacant Fallow and Virgin Land Law (VFV) and the Land Acquisition Act sparked fresh campaigns by farmers’ groups, indigenous rights groups, internally displaced people and Ethnic Armed Organizations.²²

Amendments to the VFV law in 2018 introduced a six-month deadline for people who are eligible to register portions of land they may claim as private.²³ In doing so, the amendment continues to disregard known barriers in land registration, the ill-defined land areas stipulated under the law and to exasperate long-existing tensions related to perspectives on land. The policy also fails to take into account hundreds of thousands still displaced by both active conflicts and those under a ceasefire across the country.²⁴

Under the policy, the government estimates that 50 million acres of land will be categorized as VFV land, 75 % of which is located in Burma’s ethnic states. This will render indigenous communities illegal squatters as failure to register will result in illegal trespass and fines and imprisonment. The March deadline put forward was stated as being “a declaration of war”²⁵ on ethnic/indigenous communities in Myanmar. In November, Land in Our Hands (LIOH) and the Myanmar Alliance for Transparency and Accountability (MATA) launched a campaign to develop a federal land law and completely abolish the much-hated concept of VFV land in response to the amendments.²⁶ In addition to the direct impact on ethnic communities, the government’s land law reform and implementation appears to contradict its commitments under the Nationwide Ceasefire Agreement (NCA) and relevant bilateral ceasefire arrangements that the NCA reaffirms, which require the government to coordinate with signatory EAOs on land management.²⁷

Notes and references

1. See, National League for Democracy 2015 Election Manifesto (authorized translation) available at http://bit.ly/2T88xVm
2. The Unlawful Associations Act. [India Act XIV, ] (11 December 1908)] at http://bit.ly/2T8G95f
3. For a comprehensive report on aid blockages by Tatmadaw, see Fortify Rights, “‘They Block Everything’: Avoidable Deprivations in Humanitarian Aid to Ethnic Civilians Displaced by War in Kachin State, Myanmar” at http://bit.ly/2T2u69R
4. Myanmar Times, “Aid Workers Warned Against Helping Refugees in KIA Areas” 18 June 2018 at http://bit.ly/2T8A34T
5. Radio Free Asia, “Kachin Aid Group Halts Humanitarian Work After Threat by Myanmar Army” 15 June 2018 available at: http://bit.ly/2TdqP7m
6. The Irrawaddy, “Tatmadaw Detains 15 Kachin Aid Workers Near Laiza” 1 November 2018 available at http://bit.ly/2Tbm6Dj
7. UN News, “Sharp Escalation of Fighting across Kachin State, Warns Rights Expert” 1 May 2018 available at http://bit.ly/2T8foOt
8. See AAPP “Monthly Chronology and Remaining Political Prisoners ” December 2018, at http://bit.ly/2TbnW7k
9. Section 505(b)
10. See for background, Human Rights Watch, “‘They Can Arrest You at Any Time’: the Criminalization of Peaceful Expression in Burma” 29 June 2016 available at http://bit.ly/2T2um8P
11. See Progressive Voice, “Time to Hear Our Voices: Freedom of Assembly and the Youth Peace Movement in Myanmar” 12 July 2018
12. World Kachin Congress, “Drop Criminal Charges Against Kachin Activists” 22 October 2018. See http://bit.ly/2N4yLCD
13. Radio Free Asia, “Kachins Protest Jailing of Peace Activists Convicted of Defaming Myanmar Military” 11 December 2018, available at http://bit.ly/2T8fGF3
14. Radio Free Asia, “Kachins Protest Jailing of Peace Activists Convicted of Defaming Myanmar Military” 28 December 2018 available at http://bit.ly/2Tdr4iM
15. The Irrawaddy, “5 Karenni Men Sentenced Under the Peaceful Assembly Law” 15 January 2018, available at http://bit.ly/2T8TKcL
16. The Irrawaddy, “KNPP claims member saw army Execute 4 of his colleagues before escaping” 26 December 2017, available at http://bit.ly/2T8Ahcf
17. Mizzima, “Protests Break Out in Loikaw Over Bogyoke Aung San Statue” 4 July 2018 available at http://bit.ly/2T9zub6
18. The Irrawaddy, “Karenni Youth Activists Sued Over Aung San Statue Protest” 11 July 2018 available at http://bit.ly/2TghThX
19. The 6th and Final Draft of the National Land Use Policy was completed in January 2016, available at http://bit.ly/2TghU5v
20. Republic of the Union President’s Office, “Vice President U Henry Van Thio Addresses National Land Use Policy Forum” 3 October 2018 available at http://bit.ly/2TaF8K7
21. See, Frontier Magazine, “Bringing the Land Use Policy to Life” November 2018 http://bit.ly/2TbmJwF
22. Statement on 2018 VFV law by IDPs from Kachin and Northern Shan state Date: 26 November 2018 available at http://bit.ly/2TdaEac; Karen News “KNU Calls for Government to Tear Up its Vacant fallow and Virgin Land Management Law” 12 December 2018 http://bit.ly/2TaFUqv
23. Article 22 (b) of the 2018 VFV Law states that land has to be registered within six months of the law being approved, and further states that people who do not comply with this law will be imprisoned for two years or fined 500,000 kyats or both. In doing so, it fails to recognize IDP and refugee claims to land from which 1 million people have fled, see the Law Amending the Vacant, Fallow and Virgin Lands Management Law (2018) (Pyidaungsu Hluttaw Law No. (24) The 2nd Waxing Day of Tawthalin, 1380 (Unofficial Translation) 11 September 2018 available at http://bit.ly/2TaGc0z
24. See Frontier Magazine, “Why a Land Law Change is Sparking Fears of Mass Evictions” 18 November 2018 available at http://bit.ly/2TdrmpS
25. See Transnational Institute, “‘A Declaration of War on Us’: The 2018 VFV Amendment and its Impact on Ethnic Nationalities” 13 December 2018 available at http://bit.ly/2TdrHsE
26. Land in Our Hands Network, “Statement on the Opening of the Vacant, Fallow and Virgin Land Management Central Committee for Applying VFV Land” 6 November 2018 available at http://bit.ly/2TdsAS0
27. See Gilbert, J “Implementation of Burma’s Vacant, Fallow and Virgin Land Management Law: At Odds with the Nationwide Ceasefire Agreement and Peace Negotiations” Transnational Institute 10 December 2018, available at http://bit.ly/2T7w3BP

The author and publisher of this article are well aware of the existing Myanmar/Burma name dispute; however, Myanmar is here used consistently to avoid confusion.

This article was produced by the Chin Human Rights Organization (CHRO). CHRO works to protect and promote human rights through monitoring, research, documentation, and education and advocacy on behalf of indigenous Chin people and other ethnic/indigenous communities in Myanmar. The organization is a founding member of the Indigenous Peoples’ Network of Myanmar, made up of over 20 non-governmental organizations engaged in indigenous peoples’ issues in the country.