Posted in Legislative Research on Dec 10, 2019
In this bill analysis, the difference between marine fisheries bill and the existing laws – Fishing Rights of Foreign Fishing Vessels Law (1989) and Myanmar Marine Fisheries Law (1990) – will be explored and things to be considered before its enactment suggested.
The Fisheries Sector Report 2019 issued by the Ministry of Agriculture, Livestock and Irrigation (MoALI) and the World Bank says that Myanmar’s marine fish resources have suffered a severe decline – as much as 90 percent – since 1979/80. To tackle this situation, it recommends putting in place mechanisms to monitor and conserve fishing grounds, and to resolve conflicts between inshore and offshore fishery workers.
Analysing the difference
In 1989 and 1990 respectively, the Fishing Rights of Foreign Fishing Vessels Law and the Myanmar Marine Fisheries Law were enacted. Provisions relating to prohibitions and penalties were amended in 1993.
The current bill is an attempt to bring this legal framework up to date, and the Hluttaw are asked to repeal the above laws. For example, the term “foreign fishing vessels” is defined as those registered in the other countries according to the existing laws, whereas the current bill defines the term as those registered both abroad and locally.
Two main areas of emphasis distinguish the existing laws and the bill. The first is concerned with preventing reduction of fish stocks through the conservation of marine ecosystems; the second is concerned with fishery workers.
As the bill aims to support sustainable development of the fishery sector, to conserve marine ecosystems for fish and to support research and technology relating to fisheries, a chapter “Prevention of Reducing Fish Sources, Development and Management of Fisheries” is included in the bill. There are specific procedures to determine conservation waters.
Concerned with the determination of fishing grounds, although the Department of Fisheries (DoF) can do it alone according to the existing law, the bill establishes a requirement to secure MoALI consent. For business licenses to trade in marine fishery products, applications must go to the District DoF, instead of the Township DoF. The same rules apply for sport fishing businesses.
Next, a provision requiring competency training for fishery workers has been put into the bill. Those who desire to work as fishery workers on a national fishing vessels have to apply for the fishery worker registration at the Township DoF, and at the DoF if working on foreign fishing vessels. When applying for the registration, the bill requires worker to have completed competency training courses run by the DoF, or other permitted training courses.
Regarding employment on the foreign fishing vessels, the bill prescribes the minimum employment of 25 % national fishery workers, or a quota determined by the DoF if over 25%.
Regarding the duties of the fishery businesspeople, the bill describes the need to inform the relevant Department or DoF about the delegation of power to a representative, and to have insurance for compensation for illness, injury and death caused to fishery workers.
Moreover, a chapter about organisation of local fishery workers is included in the bill. Permission to form a local group of fishery workers and their inshore fishing can be made to the Township DoF, while their offshore fishing can be applied to the Region/State DoF.
Things to be considered
(1) Centralising Bill?
The powers of relevant Departments given by the existing laws will be moved to a higher level under this bill. This may be conceived as way to ensure enforcement of conservation and protection of fish stocks and marine ecosystems, but it also continues a trend in government legislation of centralizing government power.
(2) Provisions not legally binding?
The bill says that 25 % of national fishery workers or more must be employed on foreign fishing vessels. A similar provision can also be found in the Myanmar Investment Law that requires Myanmar citizens to be hired for unskilled positions. However, as with that law, there is no provision in this bill for enforcement and penalties for violating this provision. This means that an important provision protecting Myanmar workers’ rights is made weaker.
(3) Fishery worker registration
When applying for fishery worker registration, applicants must get the competency certificate issued by the DoF, issued by training courses permitted by DoF. Challenges of implementation of such a provision must be taken into account because of limitations with opening training courses for fishery workers, and the internal capacity of DoF to process worker registrations.
It should also be borne in mind that the introduction of new procedures and bureaucracy can increase the risks of corruption. Further, it is not clear if there will be any differentiation between worker registration for large fishing businesses and small-scale fishing. Should smaller traditional family fishing businesses be subject to the same stringent requirements to undertake DoF training as workers in larger-scale fishing fleets? There is also a question of fairness regarding workers having to bear the costs of training and registration. For those earning low pay in large fishing operations, these costs could have a big impact.
(4) Responsibility and accountability
Another aspect to be considered is in terms of the government staff’s responsibility and accountability. The existing laws include a provision to punish those in charge through both imprisonment and fines for making others confess, taking no action to resolve violations of the law, or destroying evidence. This is important to ensure the government staff is responsible and accountable. The provision is not included in the current bill, though.
(5) R&D fund
The existing law allows the DoF to use up to 5 % of tax on fisheries in the fishery research, development and conservation. Whether this provision has been properly implemented in the past is beyond the scope of this piece. The idea of a tax on fisheries to be invested in research and development of fisheries is of good intention, but it has been removed in the new bill. Instead, there an unspecific provision that the DoF can do conservation of fish stocks and research. But without ringfenced funding for such activities, are they likely to take place?