Myanmar: authorities, courts complicit in eroding rule of law in Kachin State

An opinion piece by Vani Sathisan, ICJ International Legal Adviser, and Sean Bain, ICJ Legal consultant, in Yangon.

“The scale and severity of human rights violations in Kachin State is one of the worst in Myanmar,” a lawyer told the International Commission of Jurists during a meeting in Myitkyina last month.

Visitors walk along the riverbank at the Myitsone in Kachin State in December 2015.

Illegal large-scale land grabbing, harassment of landowners by government and business officials, and a lack of access to justice were the central complaints heard by the ICJ during the discussions with human rights defenders and civil society groups in Kachin State.

Senior state-level judicial officials signalled increased readiness to discuss ways to improve the effectiveness and independence of the courts.

Yet meaningful reform also requires revising laws to bring them in line with international human rights standards, respecting judicial independence by government officials, and securing corporate legal compliance through consistent application of the law and access to fair and effective judicial review.

The conflict in Kachin State and northern Shan State, where over 100,000 people remain displaced since fighting between the government and ethnic armed groups re-started in 2011, is partly fuelled by the abundant natural resources.

Eighty percent of Myanmar’s mining operations are located in Kachin State and neighbouring Sagaing Region. Timber, rubies and gold are plentiful.

A report by international watchdog Global Witness estimated the value of illegal jade mining at around US$31 billion in 2014 alone.

Yet hazardous mining practises are rampant while law enforcement is haphazard.

Last November, the jade-rich town of Hpakant made global headlines when over 100 itinerant miners died in a landslide of mine waste. Mining continues to be notoriously unregulated, leading to another accident this week, with a dozen more killed and many more reported missing after a downpour triggered the collapse of a massive slag heap.

At the same time, villagers near Uru Creek in Hpakant were protesting for the shutdown of a gold-mining operation, citing the dumping of waste, erosion of the riverbanks and obstruction of water flow.

The ICJ viewed photos taken in a jade-rich area of Mohnyin township, to Myitkyina’s southwest, purporting to show arson attacks on the homes of farmers.

Their lawyers say a local company mobilised thugs to attack property and physically assault farmers for refusing to vacate land earmarked for mining operations.

Local pro bono lawyers are putting together a case against the company, alleging it confiscated land in violation of Myanmar law and is responsible for the harassment of the farmers. The ICJ has provided lawyers in the area with training on strategic litigation for corporate abuse of human rights.

In the Hukawng Valley toward Myanmar’s northwest border, farmers are facing loss of livelihoods due to agribusiness initiated by a Yangon-based conglomerate.

Local activists told the ICJ that the courts have been reluctant to hear community allegations of forced displacement and intimidation by government and company officials.

They understand the company has received permissions at the Union level, but say that the actual activities do not comply with the laws, which are in any event not enforced.

Farmers allege that local police have threatened them with prosecution if they continue agricultural activities in the contested area.

Myanmar’s system for land regulation consists of overlapping laws that seek to prioritize investment but fail to protect the rights of all land users.

Rules governing acquisition of land exist, but are rarely followed. Insecure tenure rights, corruption and lack of enforcement means that farmers can find their land arbitrarily classified as “virgin” or “vacant” and then reallocated to companies or state enterprises.

For the local people, secure access to land is fundamental to the realization of a range of internationally recognized human rights, including to an adequate standard of living, food and water, housing and health.

These rights are enshrined in the International Covenant on Economic, Social and Cultural Rights, signed by Myanmar in 2015 but yet to be ratified or practised in the country.

The government has a duty to create a legal framework consisting of land acquisition laws that are compatible with international human rights standards, and to enforce regulations that require environmental and social impact assessments.

State Counsellor Daw Aung San Suu Kyi has stated that land reform would be a top priority for the National League for Democracy government.

Amendments to laws should be guided by principles of public participation and international human rights standards, including the United Nations basic principles and guidelines on development-based evictions and displacement, and the Voluntary Guidelines on the Responsible Governance of Tenure.

The law must also create a process for public purpose land acquisition – based on the UN guidelines on evictions and displacement – which ensures transparency and accountability in the process, and requires that all such acquisitions be demonstrably justified.

The framework should also be consistent with the National Land Use Policy finalized last year following consultations with farmer networks and civil society groups.

It should affirm the duty of companies to comply with laws and respect human rights. This is required to enable just and effective remedies for those affected by development projects.

As seen in Kachin State, the approval of investments without requisite checks and legal safeguards, along with substandard enforcement mechanisms, undermines democratic processes and human rights norms.

In Kachin State, as elsewhere, bold farmers and lawyers are challenging unjust laws and the arbitrary implementation of laws that violate human rights.

Many see these cases as unwinnable due to executive and administrative control over judges and prosecutors, in breach of international standards on the independence of the judiciary and the role of prosecutors.

But these cases do highlight issues with the content and application of law, with the aim of promoting regulatory change for public good.

At the moment, lawlessness and impunity continue to enable human rights abuses and environmental damage. Land grabbing results in human rights violations.

Local and foreign companies can, and do, flout domestic and international law without penalty.

And authorities are too often complicit in crimes while courts are used to intimidate and silence victims.

Strengthening the rule of law will be critical for enabling human rights and democracy in Kachin State.