Friday, July 29, 2011

Disappearing line between confiscating land, and stealing it

Friday, 29 July 2011 12:20 U Myo

(Commentary) - For generations, Burma’s land-holding patterns have been riddled with inequalities and injustices. In the feudal era, the King possessed most lands and serfs were forced to work his estates. In the colonial era, large landowners exploited class and ethnic inequities in order to advance British interests.

Burmese farmers are frequent victims of unfair land
confiscation. They are not allowed to own the land that
they work. Photo: Mizzima
Unfortunately, after six decades of independence, similar inequalities with respect to land issues persist for the people of Burma.

One reason that small landowners and tenants face ongoing insecurity is because of arbitrary government confiscations of land. The confiscations have largely been executed without compensation or opportunity for legal recourse. As a result, the livelihoods of small landowners and tenant farmers have grown more tenuous. The government has conducted the confiscations for the purpose of lining the pockets of government officials and their allies with the money of foreign investors.

This phenomenon was previously documented in “Burmese government land grab: Farmers without rights”.

The government can conduct land confiscation with impunity due at least partially to inadequate protections for private property in domestic law. For example, though the Law Safeguarding Peasant Rights states that a Civil Court “shall not make a decree or order for….confiscation of agricultural land… nor the produce of agricultural land,” the very next section allows for such a confiscation to occur where the government’s actions are taken “for the obtaining of government revenue” or for “law and order.”

Meanwhile, laws that provide for landowners to be compensated following government confiscations or expropriations leave loopholes for the Burmese government to exploit. For example, the Land Nationalisation Act of 1953, which replaced the Land Nationalization Act of 1948, states that compensation shall be afforded for a confiscation “except where agricultural lands are liable to be resumed possession by the State for default or conditions prescribed under any other law for the time being in force.” Though the domestic laws in various countries confer similar powers on national governments, in Burma there is neither a legitimate democratic electoral system nor a developed rule of law to prevent government officials from lining their own pockets at the expense of landowners. In a government marked by authoritarianism and corruption, this is too often exactly what happens.

The aforementioned clawback clauses, which enable abuse by Burmese officials, stand in contrast to the approaches of other countries that have laws to guard against precisely this type of abuse of government power. The United States, for example, has entrenched the idea that private property shall not be taken by the government for public use “without just compensation” within the 5th Amendment of its Constitution. In Canada, provincial Expropriation Acts mandate that adequate compensation be given for every government seizure of land for public use. In Germany, expropriation is only permissible for the public good, and any expropriation must be specifically mandated by a statute regulating the nature and extent of compensation. Further, the landowner’s right to contest the taking in court is guaranteed by the German Constitution.

While all of these countries allow public taking of private land, they have established an emphasis on safeguarding the rights of the landowners, including homeowners and small-scale farmers, over the privileges of the government. Furthermore, there is a consistent guarantee, in all of these systems, of adequate compensation.

In Burma, due to clawback clauses and loopholes like the ones within the Land Nationalisation Act of 1953, there are no such guarantees. Nor is there an appropriate emphasis on the rights of the individual landowner; instead, the government has a license to use state power to arbitrarily force people from their lands with neither due process nor appropriate judicial safeguards.

Even when landowners have recourse through judicial review, the membership of the judiciary is composed of pro-military members who owe their appointments and their continued job security to Burma’s generals. As a result, they are typically unable and unwilling to act as an independent arbitrator in disputes between private landowners and the government.

In a democratic country, elected officials frequently develop and pass legislation related to land. Where legislation has the effect of confiscating or expropriating land, landowners are compensated. In Burma, on the other hand, the ruling elite and their cronies who came to power through the sham election in 2010, unilaterally make decisions with respect to land. Inadequate protections for private property in domestic law allow them to seize land without providing compensation.

There is no doubt that farmers and other landowners in Burma are suffering from a land insecurity crisis. Land throughout the country is liable to be confiscated at any time by the government. No genuine opportunity for legal recourse exists for aggrieved landowners.

In order to rectify this situation it would be necessary to create entrenched guarantees of compensation for land confiscations within domestic law. However, merely strengthening legislation to protect landowners from uncompensated confiscations would not necessarily prevent the government from continuing to seize land in a capricious manner. Instead, a legitimate, democratically elected government that is answerable to the electorate of Burma would have to be in place in order to ensure an end to arbitrary and destructive land confiscations.

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