Posted in Legislative Research on Apr 29, 2019

The Hluttaw is currently considering two new Bills which, if passed in their current form, may unfairly disadvantage smallholders. This comes as widespread concern continues about the Vacant, Fallow and Virgin Land Act. In order to build trust in the democratic process, Parliament needs stronger mechanisms for considering the cumulative impact of different Laws, particularly to protect their most vulnerable and marginalised constituents.

Civil society organisations in Myanmar have mounted a ferocious campaign against the implementation of the Vacant, Fallow and Virgin Land Act (VFV Law). Enacted in September 2018, the new Law seems to be at odds with a stated National League for Democracy (NLD) commitment to recognise and uphold customary and traditional land rights. Commentators have noted how the Law puts smallholders at widespread risk of eviction, and is likely to frustrate the peace process by contradicting the National Ceasefire Agreement (NCA).

Some political commentators are confused by the NLD’s strategy with such a Law, as it risks severely eroding the Government’s popularity, especially in ethnic areas. What we can say with some certainty is that a rush to pass laws – perhaps in order to demonstrate progress on the economy – is preventing an inclusive debate about the likely consequences of legislation.

It is important when considering new bills that the Hluttaws play a full and active role considering why legislation is needed, likely intended and unintended consequences, and the costs (both financial and human) of implementation. By default there should be open consultation on all new bills, including with civil society. Expert witnesses can be invited to give evidence to the relevant Committees. Stronger mechanisms should be put in place to ensure all bills are examined carefully alongside other new and existing laws, to check for inconsistencies, duplication and possible cumulative impacts – especially those likely to impact on particular groups such as smallholder farmers, women, or ethnic minorities.

Whilst unlikely to have as far-reaching consequences as the VFV Law, two new Bills recently introduced could carry negative consequences for smallholders. The two Bills come from different ministries and have very different objectives, however looking at them together hints at how multiple different pieces of legislation can impact on the same group.

New Plant Variety Protection Bill

The New Plant Variety Protection Bill (PVP Bill) has been introduced in order to bring Myanmar in line with the International Union for the Protection of New Varieties of Plants (UPOV) Convention. This convention came into being in 1968, and is intended to create an internationally recognised system of intellectual property rights for new seeds and plants.

Myanmar is not a member of the UPOV Convention, but would need to pass a national law to be able to join. Note that Myanmar is, however, a signatory to related international laws, including the Convention of Biological Diversity (CBD); the Nagoya Protocol for Access and Benefit Sharing of Biological Resources (ABS); and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA).

The system of plant variety protection would operate in a similar way to copyright protection (another area of law which may need substantial updating). It allows for a plant breeder to register their ownership of a new variety of plant. This is of particular benefit to export-oriented agriculture because it allows a country to protect its distinctiveness in a global marketplace, and rewards the development of new varieties.

However, there is a debate internationally regarding possible disadvantages of UPOV for smallholder farmers. PVP Laws have been accused of preventing farmers from using stored seed or protected varieties. Furthermore there have been some fingers pointed at the UPOV organisation for not listening to farmers views and holding secretive meetings. India, which tends to be more strident than others in its protection of farmers’ rights, has faced difficulties in passing PVP Laws.

The ‘alphabet-soup’ of international agreements mentioned above – CBD, ABS and ITPGRFA – are viewed by some as more sympathetic to farmers rights and to protecting traditional sources of knowledge. Any government seeking to introduce a complex, technical law like this PVP Bill owes it to its citizens to explain the rationale, and look carefully at the likely impacts, especially on poorer agricultural communities, before moving ahead.

Urban and Regional Development Planning Bill

Another draft law, the Urban and Regional Development Bill (URD Bill), is also to be presented to the Hluttaw. Originating in the Ministry of Construction, the Bill would establish a hierarchy of national, regional and municipal level committees and planning documents. The aim being to ensure that the various plans fit together (eg urban planning by YCDC is consistent with the regional government plans). All cities will be categorised A to E based on their population, economy and other factors.

Whilst having the overall flavour of Communist ‘central planning’, there is some logic in having coherence across plans made at different geographic scales, and in trying to improve coordination. However, as with many draft laws, the devil maybe in the detail. There is some mention in the Bill of committees having some power to review VFV Law decisions, ‘new cities’ and Special Economic Zones. Is it possible the Bill represents a territorial move by the Ministry of Construction into policy areas currently the responsibility of the Ministry of Agriculture and the Ministry of Commerce? More importantly however, far from streamlining and coordinating existing policy, there is a distinct risk that such a law would further complicate decision-making related to land, which can only further marginalise those least well-placed to ‘play the system’. Once again, the landless poor, smallholders, and those who rely on customary tenure, would appear to be vulnerable unless their voices can be heard.

Importance of Listening

All of the commentary above is arguably little more than speculation, guided by a little internet searching. There is simply not enough information available to make an informed judgement as an outsider to the legislative process. It is very difficult, if not impossible, to find out where Bills are coming from, what problems the laws will address, what information and data has informed their drafting, and what impact assessments (if any) have been carried out.

All this serves to highlight the importance of a careful and deliberative approach by the Hluttaws and its committees to examine new laws that come their way. It is within the power of the committees to gather evidence, conduct hearings, and most importantly listen to communities. Our MPs are there to represent their constituents, and so the legislative process should ideally help them to understand the impact of their decisions on all segments of society.

In an ideal scenario, MPs can use the law-making process to stand in the shoes of a remote hill farmer whose livelihood is threatened by climate change, conflict and the risk of eviction, and ask, will these new laws help them? What benefits do they bring? What can we do to mitigate the risks?

Parliaments exist to serve all people, and to give voice to the voiceless. As the quote commonly attributed to Gandhi says, “the greatness of a nation can be judged by how it treats its weakest member”.