Indigenous World 2020: Myanmar

Written on 11 May 2020. Posted in Myanmar

There is no accurate information about the number of Indigenous Peoples in Myanmar, partly due to a lack of understanding of the internationally recognised concept of Indigenous Peoples. The government claims that all citizens of Myanmar are “Indigenous” (taing-yin-tha), and on that basis dismisses the applicability of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) to Myanmar. Indigenous Peoples’ rights activists use the Burmese language term hta-nay-tainyin-tha in describing Indigenous Peoples, based on international principles; using the criteria of non-dominance in the national context, historical continuity, ancestral territories and self-identification.¹

The government recognises eight ethnic groups as national races or taung yin tha: Kachin, Karen, Karenni, Chin, Mon, Burman, Arakan and Shan. According to the 1982 Citizenship Law, ethnic groups who have been present in the current geographical area of Myanmar since before 1823 (the beginning of the first British annexation) are considered taung yin tha.² However, there are more ethnic groups that are considered or see themselves as Indigenous Peoples, such as the Naga, that would not identify with any of those groups.

While the democratic transition from quasi-military government to quasi-civilian took place peacefully, and early signs of progression took place via ministerial development focussed on Indigenous rights and development via the newly established Ministry of Ethnic Affairs, the overwhelming feeling held by Indigenous rights activists is that the governing National League for Democracy party (NLD) have not honoured pre-election manifesto promises to eradicate harmful policies which restrict fundamental freedoms such as the right to assembly and peaceful expression. Furthermore, the stated aims of the NLD for “national reconciliation” via the 21st Century Panglong forums are presently stalled, with conflict escalating in many ethnic states and regions.

Myanmar voted in favour of the 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) but voted against a bill to ratify the International Covenant on Civil and Political Rights under the rationale that it was a threat to national sovereignty. In 2017, Myanmar became the 165th State Party to the International Covenant on Economic, Social and Cultural Rights (ICESCR).

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

“There is no vacant land in Myanmar!”³

In January 2019, seven United Nations Special Rapporteurs for protection of a range of human rights addressed their concerns to the Government of Myanmar over the amendment of the 2012 Virgin Fallow and Vacant Law (VFV).⁴ Nevertheless, despite widespread protest, condemnation and collectivised action from civil society (see The Indigenous World 2019), the law came into effect on 11 March 2019. The law requires anyone occupying or using “vacant, fallow, or virgin” (VFV) land to apply for a permit to use the land for 30 years or face eviction, a fine and up to two years in jail.

As approximately 75% of VFV land is in the seven ethnic states where Indigenous customary land systems prevail this will have a disproportionate impact on Indigenous communities. The report by the UNHRC-mandated Independent International Fact Finding Mission (FFM) on Myanmar released in September 2019 was consistent with the special rapporteurs by concluding that the law and its amendments were in violation of both the International Convention on Economic Social and Cultural Rights (ICESCR) and the Child Rights Convention (CRC) due to the arbitrary and discriminatory manner that the law will deprive ethnic communities to lands.⁵

According to government data, 47 million acres of land have been claimed to be VFV⁶ and are waiting to be handed over for business interests. Government officials from the governing National League for Democracy party (NLD) have stated that the amendment is designed at obtaining unused land back from companies and to “promote the rule of law” and that civil society organisations (CSOs) are misrepresenting it and its implications.⁷

The situation on the ground, however, suggests that the VFV law is implemented in ways that benefit well-connected elites at the expense of local communities. This was confirmed in a field survey undertaken by the Mekong Region Land Governance (MRLG)⁸ and separately in the one conducted by NGO Namati.⁹ Both surveys also demonstrated that prior to the deadline of 11 March 2019, the vast majority of farmers had no knowledge about the VFV law and its implications. Furthermore, accounts from many areas indicated a lack of information, lack of government capacity, unreasonable top-down deadlines and lack of procedures for objection or to manage fraud.¹⁰ As a result hundreds of farmers were criminalised.¹¹

Civil society from Indigenous communities, well versed on aggressive, centralised government land acquisition in ethnic states, recognised this as business related and “inviting conflict”¹² as well as undermining “opportunities to build trust and address the root causes of nationwide grievance, in which land is central”.¹³

Due to the fact that the policy also disregards both internally displaced people (IDP) and refugee populations of which an approximate million still reside in places such as Bangladesh, Thailand, India and Malaysia, who should eventually return to their homelands, IDP and refugee networks also called for a complete reversal on the reversal on the policy.¹⁴

This is all taking place at the same time as the newly formed National Land Use Council (NLUC) (see The Indigenous World 2019) begins to develop a national land law that should give effect to the National Land Use Policy (NLUP), recognising among other things, Free, Prior and Informed Consent (FPIC) and customary land registration for Indigenous communities. In November 2019, CSOs sent an open letter to the NLUC specifying that the national land law making process should strictly respect and follow basic requirements such as transparency, participation, inclusion and timely information sharing, and use local languages.¹⁵

Despite the stalled peace process, the Federal Political Negotiation Consultative Committee (FPNCC) – a bloc of Ethnic Armed Organisations (EAO) based in the north, some of which are currently in active conflict with Tatmadaw (Myanmar military) – also developed a set of land and resource governance policies. At the time of writing these have not been made public. It is unclear therefore whether any significant differences exist compared to other EAO policies on land and natural resources.¹⁶ 2018 saw development of a revised forest law, (see The Indigenous World 2019) and in 2019, the Indigenous and Conserved Communities Area (ICCA) Consortium continued to pursue how to integrate local level perspectives on environmental sustainability in national law and policy.

Conflict throughout the country

In 2019, the escalation of fighting in all corners of Myanmar took place. As the conflicts between the Tatmadaw and the EAO increase, it has been local Indigenous populations and civilians caught in the cross-fire who have been subjected to a host of human rights abuses such as killings, torture, arbitrary detention, forced labour and the ever-present risk of death or injury from landmine explosion. While, Kachin, Shan, Arakan and Chin State continued to be afflicted by armed conflict, Karen State also saw skirmishes due to a Tatmadaw road-building project into Karen National Union (KNU)-controlled territories.¹⁷

Worryingly, 2019 saw a rise in civilian communities actively targeted by some EAO factions, notably by policies of kidnapping and enforced disappearance. In March, 12 villagers from Mang Li Village in Shan State’s Namtu Township disappeared after fleeing their homes amid clashes between the Restoration Council of Shan State (RCSS/ SSA) and the Ta’ang National Liberation Army (TNLA) and Shan State Progressive Party/Shan State Army (SSPP/SSA).¹⁸ Following negotiations with local communities RCSS/SSA released eight of those arrested after one month’s detention.¹⁹ Four villagers remain missing.

Also in March, 70 farmers from Man Pein Village in Kutkai Township, Shan State, were detained by the Kachin Independence Army (KIA) and released after one week.²⁰ Sixteen Lishaw people from Shan State were abducted by the Ta’ang National Liberation Army (TNLA) in March in what locals claimed was part of ongoing policy of kidnap and ransom agenda, later releasing eight people after 11 days in detention.²¹

In 2019, between February and July, 54 Chin civilians, making up the population of an entire village in Paletwa Township, Chin State, remained detained by the Arakan Army (AA) in a camp on the Bangladesh border. The detained civilians were engaged in forced labour activities before eventually being released on 31 July.²² In November, the AA also abducted a Chin Upper House MP, U Hawi Tin which resulted in large national^23,24 and international²⁵ condemnation and calls for his immediate release. U Hawi Tin was only released in January 2020.

The effect of ongoing instability in different parts of Myanmar has resulted in massive displacements of the population within country borders and to neighbouring countries, many of them unwilling to return under attempts at repatriation. For example, refugees from the Karen community are largely refusing to repatriate, despite government attempts to set up conditions for voluntary return.²⁶ In March 2019, the United Nations High Commissioner for Refugees (UNHCR) completely reversed a decision that conditions in Chin State were “stable and secure” for ethnic Chin to return to under an undefined repatriation programme²⁷ due to, among other things, escalating conflict in Southern Chin State.²⁸ According to the Office for Coordination of Humanitarian Affairs (OCHA), as of November there were 241,000 IDPs across Myanmar fleeing violence.²⁹

In December, statements by Shan, Karen and Karenni CSO networks were released in support of the filing of the genocide case against Burma at the International Court of Justice (ICJ) and the decision by the International Criminal Court (ICC) to proceed with an investigation into the crime of deportation against the Rohingya.^30,31 A statement endorsed by 48 Karen CSOs around the world said that as the Rohingya case, Karen people suffered for decades from systematic human rights violations by the Burma Army.³²

Continued Criminalisation of Peaceful Assembly, Protest and Freedom of Speech

According to the Assistance Association for Political Prisoners (AAPP), as of November 2019, there are 633 individuals oppressed in Burma due to political activity, 80 serving prison sentences, 180 awaiting trial inside prison and 373 awaiting trial outside prison.³³ Many of those oppressed will be Indigenous people legitimately and peacefully exercising their fundamental rights, who are oppressed under arbitrary laws designed to stifle political opposition (see Indigenous World 2019). 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 running contrary to pre-election commitments to “revoke legislation that harms the freedom and security that people should have by right.”³⁴

On the 72nd Union Day, symbolic for marking the promise for autonomy for ethnic states in a federal Myanmar, as per the 1947 Panglong Agreement, 21 Karreni youth were injured during a peaceful protest against the erection of a Gen. Aung San Statue in Loikaw as police fired rubber bullets and used water cannons against protestors. Subsequently, 45 protestors were charged under Section 19 of the Peaceful Assembly and Peaceful Procession Law (PAPPL).

In response the UN Special Rapporteur on the situation of human rights in Myanmar stated that the case represented “another example of the Government sidelining the rights of ethnic minorities and failing to truly do what is necessary to unite the country and bring about peace and democracy.”³⁵ Following the agreement between the Kayah State Government and protest leaders, the charges against protesters were later dropped.³⁶ However, the perception that the spree of erecting Gen. Aung San statues forcibly in this way is “damaging to General Aung San’s reputation”³⁷ was reiterated in Chin State where plans for another bronze statue were unveiled.³⁸

Elsewhere, a Kachin protestor, Ja Hkawn was charged under Section 20 of the PAPPL and was sentenced to pay a 10,000 kyat fine for leading a protest to permanently halt the controversial, Chinese-backed, Myitsone dam project in Kachin State³⁹ in an area of cultural and historical significance to the Kachin groups and will flood 60 villages and re-locate over 15,000 people living on Indigenous land.⁴⁰

Events that signify cultural or historical significance are also targeted by oppressive laws. In March, Dr. Aye Maung and author Wai Hin Aung, were both sentenced to 22 years imprisonment for high treason under section 122 and 505(b) of the Penal Code for having given speeches at an event commemorating the 233rd anniversary of the fall of the Arakan Kingdom in Arakan State.⁴¹ Furthermore, three activists including the Chairwoman of the Karen Women Union, Naw Ohn Hla, were charged under Section 20 of PAPPL for organising a Karen Martyr’s Day event in Rangoon on 12 August.⁴²

Police from Myitkyina made a complaint during a September protest in Kachin State against the freedom of speech protestors from the Athan, Nhkum La Nu and Malang Hka Mai groups who held placards that read “war is not the answer” and “we hate war”.⁴³

The author and publisher of this article are well aware of the existing Myanmar/Burma name dispute; however, Myanmar is used consistently in this article 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 organisation is a founding member of the Indigenous Peoples’ Network of Myanmar, made up of over 20 non-governmental organisations engaged in Indigenous Peoples’ issues in the country.

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

Notes and references

1. Coalition of Indigenous Peoples’ in Myanmar, Joint Submission to the UN Universal Periodic Review, March
2. Section 3 of the Burma Citizenship Law 1982, PyithuHluttaw Law No 4 of
3. Slogan used by Indigenous organisations, farmer networks and other civil society for advocacy
4. See for example, Land In Our Hands, Civil Society statement on Myanmar Vacant Fallow and Virgin Land Managament https://www.farmlandgrab.org/ post/view/28590-civil-society-organizations-statement-on-myanmar-vacant- fallow-and-virgin-land-management.
5. A/HRC/42/CRP.5 https://www.ohchr.org/Documents/HRBodies/HRCouncil/ FFM-Myanmar/20190916/A_HRC_42_CRP.5.pdf.
6. MOI Webportal Myanmar, 4 October 2019: https://www.facebook.com/ MOIWebportalMyanmar/posts/2319230631538123.
7. Goldberg,J, “Nowhere to go: Myanmar Farmers Under Siege from Land Law” Aljazeera, 4 April 2019: https://www.aljazeera.com/news/2019/03/myanmar- farmers-siege-land-law-190328003658355.html
8. The survey was conducted with over 1,000 households in 19 villages of 6 townships of 4 States (Kayah, Tanintharyi, Chin, and Shan States) by an alliance of 4 organisations: Chin Human Rights Organization (CHRO), Karuna Mission Social Solidarity (KMSS-Loikaw), Save the Natural Resources/Green Rights Organization (SaNaR/GRO and Tenasserim River and Indigenous People’s Network (TRIP-NET), supported by Mekong Region Land Governance (MRLG).
9. Namati, “Most Farmers Do Not Know about the Vacant, Fallow and Virgin Land Management Law as the Grace Period to Register Closes” 31 March 2019 https://namati.org/resources/most-farmers-do-not-know-about-the-vacant- fallow-and-virgin-land-management-law-as-the-grace-period-to-register- closes/.
10. Gret, Myanmar Land and Livelihoods Policy Brief https://www.gret.org/wp-content/uploads/PolicyBriefVFV-EN.pdf.
11. See, Transnational Institute, “Not About Us Without Us”: Legitimate National Land Law Design, 17 December 2019 https://www.tni.org/en/article/not-about- us-without-us-legitimate-national-land-law-making-by-design.
12. Supra note
13. Land Research and Action Network, Briefing Paper Series 4: New Challenges and Strategies in the Defense of Land and Territory, “How the Myanmar Government’s Repressive Land Laws are Catalyzing Conflict and Insecurity: An Analysis of the Vacant, Fallow and Virgin Land Management Law”, 2018. https://progressivevoicemyanmar.org/wp-content/uploads/2019/02/ landresearchactionnetwork_web.pdf.
14. Internally Displaced (IDP) and Refugee Right to Land Position Paper, 21 August 2019 https://www.tni.org/files/article-downloads/position_paper_the_right_to_land_for_idps_and_refugees_english_21_august_2019.pdf.
15. Burmese Document found at https://lioh.org/wp-content/uploads/2019/11/pdf.
16. K, Woods, “Natural Resource Governance Reform” October 2019, https://www. forest-trends.org/wp-content/uploads/2019/10/NRG_Peace_Myanmar_Final. pdf.
17. Progressive Voice, “Burma Army Attacks and Road Projects Displace over 1000 Villagers in Karen Ceasefire Area” 24 May 2019, https://progressivevoicemyanmar.org/2019/05/24/burma-army-attacks-and-road- projects-displace-over-1000-villagers-in-karen-ceasefire-area/.
18. The Irrawaddy, “10 Missing after Fighting Between Rival EAOs Causes Villagers to Flee” 4 March 2019. https://www.irrawaddy.com/news/burma/10-missing- fighting-rival-eaos-causes-villagers-flee-n-shan.html
19. Network Media Group “RCSS Releases Eight Detained Villagers”, 1 April https://www.bnionline.net/en/news/rcss-releases-eight-detained-villagers
20. Myanmar Times “Armed Group Abducts 70 Field Hands” 11 March 2019. https:// mmtimes.com/news/armed-group-abducts-some-70-field-hands.html
21. Eleven Media, “Eight out of 16 Kholon Lishaw Ethnics by TNLA Freed”, 18 March 2019 https://elevenmyanmar.com/news/eight-out-of-16-kholon-lishaw-ethnics- detained-by-tnla-freed.
22. Chin Human Rights Organisation “Annual Report, 2019”, 10 December 2019 http://www.chinhumanrights.org/images/CHRO_News/2019/2019-Human- Right-Report_CHRO.pdf
23. Press Statement file:///C:/Users/User/Downloads/Documents/InternationalOrganizations-call-for-release-ofdetainees.pdf.
24. Myanmar Times “NLD Condemns Arakan Army’s Detention of Chin State MP”, 11 November 2019. https://www.mmtimes.com/news/nld-condemns-arakan- armys-detention-chin-state-mp.html and Eleven Media Group “Chin National League for Democracy Demands Immediate Release of Chin MP”, 6 November 2019 https://elevenmyanmar.com/news/chin-national-league-for-democracy- demands-immediate-release-of-chin-mp
25. Joint Press statement Amnesty International and ASEAN Parliamentarians for Human Rights, “Myanmar: Fears for Safety of Member of Parliament Abducted by Arakan Army in Chin State” 23 November 2019. https://www.amnesty.org/ download/Documents/ASA1614402019ENGLISH.pdf.
26. Radio Free Asia, “Insecurity, Lack of Trust Keep Myanmar’s Karen Civilians From Returning Home”, 30 December 2019, https://www.rfa.org/english/ news/myanmar/insecurity-lack-of-trust-12302019160226.html also Internal Displacement Monitoring Centre, “The Invisible Majority: Before You Were Born, Your Mother Ran”, December 2019 https://reliefweb.int/sites/reliefweb.int/files/ resources/201912-myanmar-cross-border-report.pdf.
27. London School of Economics, “How Not to Promote Voluntary Repatriation: UNHCR AND Chin Refugees from Burma”, November 2018, https://blogs.lse. ac.uk/southasia/2018/12/05/how-not-to-promote-voluntary-repatriation-the- unhcr-and-chin-refugees-from-myanmar/.
28. Khonumtung News, “UNHCR to Continue Protection for Chin Refugees”, 18 March 18 2019 https://www.bnionline.net/en/news/unhcr-continue-protection- chin-refugees.
29. United Nations Office for the Coordination of Humanitarian Affairs “Myanmar” https://www.unocha.org/myanmar.
30. Myanmar Times, “Karen groups hail ICJ, ICC cases against Myanmar”, 3 December 2019 https://www.mmtimes.com/news/karen-groups-hail-icj-icc- cases-against-myanmar.html.
31. The Irrawaddy, “Shan, Karen Groups Back Genocide Charges Against Myanmar Military, 10 December 2019 https://www.irrawaddy.com/news/shan-karen- groups-back-genocide-charges-myanmar-military.html.
32. Karen News, “Ethnic Groups Support ICJ on Rohingya Genocide Lawsuit Against Burma Government and Its Military”, 11 December 2019 http://karennews. org/2019/12/ethnic-groups-support-icj-on-rohingya-genocide-lawsuit-against- burma-government-and-its-military/.
33. https://aappb.org/2019/12/aapps-november-chronology-2019-and-current-pp-list/.
34. See, National League for Democracy 2015 Election Manifesto (authorised translation), available at: http://www.burmalibrary.org/docs21/NLD_2015_ Election_Manifesto-en.pdf.
35. “Myanmar: Expert Says Violence and Arrests of Karenni Protestors Must Stop” 12 February 2019 https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews. aspx?NewsID=24160&LangID=E.
36. AAPP Chronology Month in Review, February 2019 https://aappb.org/2019/03/ aapp-monthly-chronology-of-feb-2019-and-current-political-prisoners-list/.
37. Radio Free Asia, “Dozens of Youth Activists Arrested for Protests Over Aung San Statue in Myanmar’s Kayah State”, 8 February 2019 https://www.rfa.org/ english/news/myanmar/dozens-of-youth-activists-arrested-02082019165548. html.
38. Frontier Magazine, “Statue-building spree tarnishes Aung San’s legacy”, 26 September2019 https://frontiermyanmar.net/en/statue-building-spree- tarnishes-aung-sans-legacy.
39. Kachin News Group, “Myitsone Leader Protestor Fined”, 13 February 2019 https://www.bnionline.net/en/news/myitsone-protest-leader-fined.
40. See Kachin Development Networking Group “Damming the Irrawaddy” https://org.uk/media/DammingtheIrr.pdf.
41. Frontier Magazine, “Aye Maung, Wai Hin Aung Handed 20-Year Prison Sentences”, 19 March 2019 https://frontiermyanmar.net/en/aye-maung-wai- hin-aung-handed-20-year-sentences-for-high-treason.
42. The Irrawaddy, “Activists Found Guilty for Marking Karen Martrys’ Day in Myanmar”, 2 October 2019 https://www.irrawaddy.com/news/burma/activists- found-guilty-marking-karen-martyrs-day-myanmar.html.
43. Frontier Magazine “Myitkina Court Fines Pair Over Protests by IDP Youth”, 12 September 2019 https://frontiermyanmar.net/en/myitkyina-court-fines-pair- over-protests-by-idp-youth. 

Tags: Land rights, Human rights, Criminalisation , Indigenous Peoples Human Rights Defenders