Once described as the last and final frontier for the potential for profitable foreign investment, Myanmar has gradually been opening up to the global economy in recent years. Since 2011, the Myanmar government has embarked on a broad reform of its investment, tax, and competition laws, which has made the country a less unpredictable and risky destination for foreign capital. At the same time, however, it has also sought to protect its own citizens’ rights from the effects of liberalization. In particular, through the draft National Land Use Policy (NLUP), the Myanmar government has shown a willingness to protect both individual and communal land tenure rights of its citizens.
The NLUP, which the Myanmar government plans to memorialize into a national land law, received significant attention from human rights and other non-governmental organizations. The interest is unsurprising: Liberalizing foreign investment can create an adverse incentive for the government to award lands already in use to foreign investors, as these are often the most fertile and hence the most desirable for investment purposes. This kind of expropriation has been documented heavily since the global food crisis of the late 2000s sparked interest in developing countries’ land. Given Myanmar’s untapped natural resources as well as its history with land grabbing, it is important to examine how NLUP, once adopted into binding law, will mitigate these concerns of dispossession and displacement.
The NLUP calls for public consultations whereby each subsequent draft can take into account the comments received from various experts and organizations. Six rounds of substantive revisions have taken place since the first draft was released in October 2014. To the government’s credit, the sixth draft has received positive responses for addressing previous comments and criticisms. While many have voiced concern about how the NLUP’s aspirational goals will be implemented, the consensus is that the NLUP is a significant first step to strengthening the often tenuous land tenure rights of individuals and ethnic minority communities.
What has received relatively little attention throughout the revision and consultation process, however, has been the NLUP’s section on gender equality, which guarantees, among others, equal land tenure and inheritance rights to women. Granted, a side-by-side comparison of the first and sixth draft reveals that this section has improved considerably, both in terms of substantive content and clarity of language. But given the importance of gender equality, not only from a human rights perspective but also as a powerful driving force behind a country’s economic development, the attention paid to it by both the NLUP and the commentators has been lacking. In particular, they have failed to recognize the potential conflict between protecting communal land rights and empowering women’s control of land, two objectives which the NLUP aims to accomplish through the national land law.
Customs governing communal property regimes around the world are often patriarchal and do not give women an equal opportunity to inherit or control land, and Myanmar is no exception. Studies show that such inequality can occur even when the legal language is gender neutral, as societal norms or customary laws overpower existing laws. Hence, a legal recognition of communal land tenure systems can be a double-edged sword. On one hand, there is a need to respect the traditions of ethnic minorities, who often live under such systems. On the other hand, deference to customary laws may allow them to supersede and undermine legal guarantees of gender equality. Given that a meaningful amount of land in Myanmar is in fact in communal use, how this deference operates alongside laws protecting women’s land tenure rights is an important, unresolved question which deserves more attention in subsequent public consultations. Moreover, even if only gender equality in non-communal land is considered, respecting the traditions of communal land tenure systems, biases against women’s land ownership are certainly not limited to communal lands alone. Thus, giving deference to tenure systems where women do not enjoy equal rights may also serve to perpetuate and entrench these traditional biases.
As it continues to undertakes reform, Myanmar has an opportunity not only to become an attractive destination for foreign investors, but also to extend more basic rights to its own citizens. The NLUP endeavors to do just that, by correctly focusing on marginalized populations such as ethnic minorities and women. However, both the Myanmar government and the participants in public consultation have not sufficiently considered the potential inconsistency between respecting customary laws and achieving gender equality in land tenure rights. Though these are certainly not conflicting goals, a mechanism by which they can coexist, and ultimately reinforce each other, must be found before the NLUP is memorialized into binding law.