Land reform: A vote-winner for the NLD

Land reform is the perfect election pledge for the National League for Democracy to show that it is serious about addressing land rights issues and resolving a key concern of ethnic minorities.

With the general election only weeks away – notwithstanding the potential impact of the second wave of COVID-19 – political parties are flooding social media with pledges and promises to woo voters.

For the National League for Democracy, the November 8 election poses a new challenge: how to win an election as the incumbent, defending its record in government, rather than as an opposition promising to sweep in a new era of change? 

The NLD’s meagre list of achievements from its time in office, with little progress achieved on the economy, constitutional reform, the peace process and other domestic issues, means that broad promises to transform the country have become a harder sell for the party.

One policy area that could convince voters – particularly in ethnic minority-dominated regions of the country – that the NLD is committed to bringing about real change involves land. A nationwide poll conducted last year by the International Republican Institute, a non-partisan Washington-based INGO that promotes democracy, indicated that land rights were among the top issues for voters, with 55 percent of respondents describing land grabs as a “serious problem”. In an economy still dominated by agriculture, how land is owned, managed and traded is central to how most communities in Myanmar are able to maintain and sustain their livelihoods. 

Myanmar’s land laws are a hodgepodge of disparate and often conflicting regulations introduced by previous ruling regimes. As a result, communities are often uncertain of their legal land rights and are vulnerable to land grabbing. Indeed, the unclear and contradictory land governance framework is often exploited by businesses and government officials looking to make profits on land deals. A campaign commitment from the NLD to overhaul the country’s land laws and protect smallholders’ land rights would give the party a policy that could lead to tangible change and help it to appeal to rural voters.

Fortunately, the NLD-led government is already in the process of introducing a comprehensive land law. The National Land Law aims to harmonise all existing land laws and build on the existing National Land Use Policy adopted in 2016 to create a comprehensive, clear and legally binding land governance framework in Myanmar. Official policy documents say the main objectives of the law are to promote legal protection for land rights, strengthen the rule of law for sustainable land use, and develop a land law that can contribute to peace, sustainable development, and inclusion of all ethnic nationalities. However, progress on the National Land Law has been slow during the NLD’s term of office, and the government has only recently published the work plan for the draft law, after several years of delays. Formulating the law is likely to take well into the next five-year parliament.

Whether the NLD is capable and willing to transform Myanmar’s land laws to benefit rural communities is questionable. The NLD’s track record on land reform is patchy to say the least; its flagship land law during its first term in office, the 2018 amendment to the Vacant, Fallow and Virgin Land Management Law, caused much consternation among rural communities, especially in ethnic areas. Although the government’s intention was supposedly to clarify Myanmar’s land tenure system and clean up the legacy of large swathes of privately owned and unused land left behind by previous regimes, the amendment instead heightened fears of land grabbing among rural communities. 

The amendment declared 50 million acres – most of it in ethnic states – as vacant, fallow and virgin land, meaning any eligible business or individual could apply for a permit to use it. All cultivators who occupied vacant, fallow and virgin land were given a six-month window to register their land or forfeit their legal right to it. Although the full effects of the Vacant, Fallow and Virgin Land Management Law are not yet fully known, the formalised and individualised system of land use introduced by the amendment is wholly incompatible with land use in ethnic states. As ethnic communities are more likely to manage land in line with customary practices, such as shifting cultivation, hereditary ownership and communal land management, they are disproportionately vulnerable to land dispossession under the current land governance framework. Critics therefore contend that ethnic communities are at greater risk of land dispossession as a result of the amendment, which does not bode well for the NLD’s future attempts at land reform.

Despite this, the early signs of the National Land Law drafting process suggest that the NLD may have learnt its lessons. Whereas the amended Vacant, Fallow and Virgin Land Management Law was passed with little consultation, the work plan for the National Land Law commits to lengthy consultation with the public and a range of relevant stakeholders, ensuring this feedback is then incorporated into the draft law. More importantly, whereas the amended Vacant, Fallow and Virgin Land Management Law contained only a throwaway commitment to protecting customary land that provided no real security in practice, promoting legal protection for customary land is listed as one of the four major objectives of the National Land Law. Whether this pledge is honoured remains to be seen, but there is at least an initial and substantive commitment to protecting customary land. 

Ensuring there is a consistent, fair and equitable land governance framework in Myanmar would go a long way to addressing ethnic communities’ grievances over land grabbing, particularly in a context where the rapid liberalisation of the country’s economy has facilitated large-scale land acquisitions. Considering the overall disappointment with the NLD’s approach to ethnic minority rights during its first term in office, pledging to introduce a National Land Law that enshrines customary land rights would be a good place for the party to start at rebuilding trust with ethnic communities. Not only that, an election platform based on smallholder land rights would demonstrate the NLD’s renewed focus on introducing measures aimed at improving the everyday lives of voters, rather than more abstract concepts such as constitutional reform and federalism.

Regardless of the size of the composition of the next government or the size of its mandate, work needs to continue on the National Land Law. After decades of mismanagement, the new law presents a once-in-a-generation opportunity to ensure there is a cohesive, fair and harmonised land tenure system that protects the land rights of communities and boosts agricultural development. 

At the same time, another botched attempt at land reform that fails to address ethnic grievances over customary land practices could instead exacerbate existing patterns of land dispossession and leave households throughout Myanmar landless and without livelihoods. It would also stoke yet more tensions between the government and ethnic minority communities. The stakes could not be higher.